Libel, Lies, and Conspiracy Theories
Alex Jones of Infowars certainly knows how to monetize controversy, or at least he did until now. Since 1999, Jones has built a vast audience and has made millions of dollars by peddling conspiracy theories and survivalist supplies via the radio, Internet, and social media. He’s asserted that the U.S. government was behind the attacks on 9/11, that Democratic officials were using a pizza parlor in D.C. to operate a satanic child porn ring, that the Sandy Hook Elementary School shooting was a hoax, that a man who witnessed the killing of a woman protesting against armed white nationalists in Charlottesville was actually a deep state operative and accessory to the murder, and that a Boston man who had never been to Florida perpetrated the Parkland shootings. Several of the people targeted by Jones, including the Sandy Hook parents he labelled “crisis actors,” have sued him for libel and other torts. As a result of public pressure, Jones’ content has now been “de-platformed” from Facebook, YouTube, Vimeo, iTunes, LinkedIn, Pinterest, Mailchimp, Stitcher, YouPorn, and Spotify. He has also been suspended temporarily by Twitter.
It is worth examining the Sandy Hook libel suits against Jones to gain clarity about the limits of the First Amendment and contemplate some of problems libel law faces in the “post-truth” era.
If Jones were simply peddling conspiracy theories perpetrated by unnamed actors or large anonymous groups, such as “the government” or “the CIA,” he would not be subject to tort or criminal liability for his speech. And this protection would hold even if his conspiracy theories targeted broad groups such as African-Americans, Jews, or Muslims with hateful or pejorative lies.
Although the Supreme Court has held that false information has “no constitutional value,” lies that do not cause direct, tangible harm to individuals are constitutionally protected. The government may not censor such lies (though private actors such as Facebook and Twitter may). For at least the last fifty years, the Court has not deemed interests such as preserving the dignity of a group or protecting society from “fake news” as sufficient to justify imposing liability upon speakers who peddle lies. Moreover, the Supreme Court has repeatedly said that the State may not punish individuals simply for holding disfavored views, although it may punish incitement, discrimination, threats, crimes, and defamation.
The reason for protecting vague conspiracy theories and the theorists who propound them rests in part upon an unwillingness to unleash the government to serve as a roving truth commission. The government’s temptation to suppress criticism would be far too great, and the history of censorship is replete with examples of the suppression of truth and enshrinement of error. In general, therefore, the remedy for false speech is counterspeech. As the Court stated
Comments
Howard, for non-lawyers like me, a very informative post. It is comforting to know that for private people and “non-public persons” there are limits, or at least guardrails to what can be espoused before the purveyor crosses the line of defamation. Thank you.
Posted by: Paul S | Oct 1, 2021 8:16:03 PM
Great post, extremely important these days.
Just worth noting:
In ST.Amant v. Thompson, the court emphasized, that this standard of ” Reckless disregard” is not rigid. Must be observed case by case, and become subject to further development in time. I quote:
“Reckless disregard,” it is true, cannot be fully encompassed in one infallible definition. Inevitably its outer limits will be marked out through case by-case adjudication, as is true with so many legal standards for judging concrete cases, whether the standard is provided by the Constitution, statutes, or case law.
End of quotation:
Also, we must distinguish between one journalist, and laymen or ordinary persons. It doesn’t make sense simply, to grant them both, the same treatment in defamatory suits or issues. Journalists, must be bound by higher, ethical, professional and legal standards, than laymen. Lack of such distinction, is eroding the public trust, generally speaking, and particularly, concerning traditional media. The results, have been well demonstrated in that post ( although it is far greater more complicated than what has been presented in that post, as if black v. white, truth era v. post-truth era).
Thanks
Posted by: El roam | Oct 1, 2021 3:23:39 PM