THE FIRST AMENDMENT IS NOT A LICENSE TO DEFAME (PART 2)

MGSN published Part 1 of this 2 part series on September 27, 2022.

An Austin jury decided that Infowars host and conspiracy theorist Alex Jones must pay damages to parents, Neil Heslin and Scarlett Lewis for years of broadcasting lies about what happened at Sandy Hook, where their six-year-old son Jesse was murdered. The jury awarded $4.1 million in compensatory damages and another $45.2 million in punitive damages.

The issues on appeal will be twosome and straight forward: 

1) Did Jones’s conduct meet the standard in Texas that constitutes slander? 

2) Did the punitive damage award exceed the dictates of the Texas legislature?

Alex Jones’s burden on appeal as to the jury’s decision concerning his conduct is heavy. He must overcome the finding of the jury that his conduct was reprehensible. The facts of the case that the jury found slanderous are straight forward and well established. Jones made outrageous and intentional false and hurtful statements. Most people completely agree that not only denying that a mass shooting, that resulted in the death of 20 school children, occurred but alleging it was staged is the definition of reprehensible behavior. The accusation that parents fabricated a child’s death to advance a social agenda would harm reputations in the eyes of their community! As always mentioned, Jones has a very heavy burden on appeal to reverse that finding. 

In addition, he willfully and without dispute, disobeyed a judge’s ordinary discovery orders which made the finding of liability unnecessary.

Due to a Texas law capping the amount juries can decide in punitive awards, the total amount owed, $49.3 million, is likely to be reduced on appeal. This is a very straight forward issue which will incorporate the dictates of the relevant statute on appeal.

The case certainly involves more significant and broader issues regarding the spreading of disinformation and the First Amendment. Jones intentionally lied for profit, and he admitted the falsity of his statements. We would hope that  people would not be as gullible as those in Jones’ audience, who began harassing and threatening these poor parents, after Jones’s accusation that the parents fabricated a child’s death to advance an anti-gun agenda.

As previously stated, while proving Jones’ liability would have been straight forward, in this case it wasn’t even necessary. Jones defaulted on the issue of liability based on his misbehavior in withholding evidence, which the judge described as “a deliberate, contumacious, and unwarranted disregard for the Court’s authority.” Thus, the only issue the jury had to assess was what damages to award the parents.

If Jones had only spewed conspiracy theories perpetrated by unnamed individuals or large anonymous groups, such as the deep state or the CIA or whatever the group that is being blamed for all his grievances, it seems he might have completely escaped any liability for his speech.

The U.S. has chosen to let many kinds of disinformation and hate speech into the public square of this country. The First Amendment gives us the chance to refute such toxic speech with common sense opposing views from the public at large.

But Jones exited the broad confines of expression protected by the First Amendment by pushing and promoting the lie that Neil Heslin and Scarlett Lewis fabricated the death of their child, thus, Jones surrendered the broad protections afforded by first amendment.

On appeal, it is also clear and unequivocal that the punitive damages aspect of the verdict will get knocked down after a thorough review of the relevant Texas statute that dictates limits on punitive damages.  Although the punitive damages award certainly was where the jury symbolically expressed society’s outrage at Jones’ behavior. It is likely that the parents won’t collect the full amount the jury awarded them because of Texas’ damages caps and Jones’s diversionary tactics.

When the appeal is filed, there will be other issues that will be relevant. Alex Jones has also been sued in the Waterbury Superior Court in Connecticut wherein testimony concerning damages is underway. In this case the trial is also centered on the issue of damages. Jones and InfoWars, again, were already found liable for defamation due to the Defendant’s contempt and default in meeting its responsibility to comply with discovery orders.

Alex Jones and InfoWars, arguably, had a First Amendment argument to make, wherein he could’ve pushed back against the Plaintiff’s position that Jones defamed the families in Connecticut. He could’ve argued that he was just offering an opinion, albeit extreme, that was his first amendment right. However, the Court’s order finding Jones liable, striking the answer for violating discovery orders, resulted in a waiver of Jones’s ability to review the First Amendment issues in the Appellate Courts. Thus, the constitutionality of Jones’s behavior, as to whether his conduct was protected or not, will not be debated.

Another case, decided by the United States Supreme Court in 2011, draws out the first amendment legal distinctions between a defamation case, as in the Alex Jones case wherein he was found liable to the parents, as previously detailed, and an alleged intentional infliction of emotional distress litigation, wherein the Court protected a fundamentalist church’s attention-getting, anti-gay protests outside military funerals as a fundamental first amendment right.

The 8-1 ruling backed an appeals court decision to throw out a $ 5 million victory for Albert Snyder, who sued the fundamentalist church after its members picketed his son’s funeral.

Asked why anyone would bring signs reading “God Hates Fags” and “You’re Going to Hell” to a funeral for U.S. military personnel, church leader Rev. Fred Phelps said last year, “When the whole country is given over to sodomy and sodomite enablers … the country needs this preaching.”

The Supreme Court ruled that the right to free speech protects Phelps and his church members to express their opinions during military and other high-profile funerals.

Chief Justice John Roberts said the case “turns largely on whether that speech is of public or private concern.”

Critical to the Court’s analysis was the fact that most of the church’s protesters held up signs that addressed the state of the country as a whole. The ‘content’ of Westboro’s signs plainly related to broad issues of interest to society at large, rather than matters of naming the families of the deceased soldier. The Court also noted that the church had kept its protesters on public land near the site of Snyder’s funeral.

There is an argument that the plaintiff was trying to silence the free speech of an organization, because they found that speech offensive. They dragged the defendants into court, forcing them to expend a great deal of money to defend themselves for expressing their opinion.

The court ruled that their suit could not be upheld on the merits because the haters speech was protected by the First Amendment.

Jones sought the same cover from the First Amendment to defend his actions. In his deposition, Jones stated, “If questioning public events and free speech is banned because it might hurt somebody’s feelings, we are not in America anymore.”

Many things we say, no matter how offensive, hurtful or untrue are going to be protected under the First Amendment, which guards our speech from government interference and reprisal.

Jones’ pronouncements were defamatory and therefore, unprotected. He knew it, never even mounting a defense against the defamation charges brought by the 10 Sandy Hook families. He never complied with court orders requiring that he turn over critical evidence, seemingly because he knew he didn’t have a defense to his actions.

Jones lied in the most malicious manner. Then in the courtroom, Jones finally conceded that the tragedy was “100 percent real,” words that were likely devoid of any empathy for the people he damaged so deeply.

In the end, Jones’ intent was to put on a show for his audience by maligning these specific families, personally, and profiting from it. He will pay for that conduct. Westboro’s behavior was protected by the first amendment because the fanatics that were screaming at a soldier’s funeral were addressing perceived grievances concerning the state of the country as a whole. A real distinction.

From its origins, the American experiment has shown that it is sometimes necessary to defend the rights of awful speakers, for the sake of principles that may help a free and diverse society renew itself. Jones certainly boxed himself out of these first amendment protections because of his personal attacks on specific families, while the Church’s tantrums about the state of our Country, outside a soldiers funeral, didn’t cross the line because of their general public attacks, against the country.

Our polarized society will continue to deal with these contentious issues moving forward.