EXPLAINER: Is Alex Jones’ trial about free speech rights?
Conspiracy theorist Alex Jones has appeared in a Texas court for defamation after calling the Sandy Hook Elementary school attack a hoax and scrawling the words “Save the First” on tape covering his mouth.
Although Jones is framing the lawsuit against him as an attack on the First Amendment, the parents who sued him say his comments were so malicious and patently false that they fell well outside the scope of speech protected by the Constitution.
The ongoing trial in Austin, where Jones’ far-right Infowars website and its parent company are based, stems from a 2018 lawsuit filed by Neil Heslin and Scarlett Lewis, whose 6-year-old son was killed in the 2012 attack. with 19 first graders and six other instructors.
Jones is expected to testify in his own defense on Tuesday.
Here’s a look at how the case relates to the First Amendment:
Are all defamation lawsuits first amendment cases?
they are. Defamation law has been shaped by decades of US Supreme Court rulings on protected and unprotected speech.
Typically, the first question a jury will answer in court is whether the speech qualifies as unprotected defamation. If he does, they address the issue of damages.
The Jones trial largely skipped over the first question and went straight to the second. From the outset, the focus was not on whether Jones should pay damages, but on how much.
Why is his trial different?
Jones appeared to ruin his chances of making a full argument that his speech was protected by failing to comply with orders to turn over key evidence, such as emails, that the parents hoped would prove he knew all along that his statements were false.
This prompted angry Judge Maya Guerra Gamble to issue a rare ruling, declaring the parents the winner before the trial began.
Judges in other cases against Jones have issued similar rulings.
Stephen D. “I don’t know why they didn’t cooperate,” said Solomon, founding editor of New York University’s First Amendment Watch. “It’s really weird. … It’s so weird that you don’t even give yourself a chance to defend yourself.”
It may indicate that Jones knew that some of the evidence would incriminate his defense.
“It’s reasonable to assume (Jones) and his team didn’t think they had a plausible defense … or they would have complied,” said Barry Covert, a First Amendment attorney in Buffalo, N.Y.
Did both sides mention the First Amendment?
Yeah. During opening statements last week, plaintiff’s attorney Mark Bankston told jurors he was not protected by defamatory speech.
“Speech is free, but you pay for lies,” he said.
Andino Reynal, Jones’ lawyer, said the case is very important for free speech.
And Jones made similar arguments in a report.
“If questioning public events and free speech is prohibited because it might hurt someone’s feelings, we are no longer in America,” he said.
Jones, who said the actors staged the shooting as an excuse to promote gun control, later acknowledged that the shooting took place.
What are the key elements of defamation?
Defamation must involve a person publicly – usually through the media – making a false statement of fact and claiming it to be true. The comment cannot be offensive. The statement must also have caused real damage to someone’s reputation.
The parents who sued Jones say his lies about their child’s death damaged their reputations and led to death threats from Jones’ followers.
Is it easier to prove defamation for non-public persons?
Yeah. They need only show that a false statement was made carelessly.
In New York Times v. Sullivan in 1964, the Supreme Court said the bar should be higher for public figures because their scrutiny is so vital to democracy. They must prove “actual malice,” that a false statement was made “with knowledge of its falsity or with reckless disregard of its falsity or otherwise.”
Are parents public figures?
Their lawyers say they are clearly not in the category of politicians or celebrities who have voluntarily entered the public arena.
However, the Supreme Court has said that those who temporarily enter the public debate can become temporary public figures.
Jones argues that Heslin did just that, entering the national gun debate by advocating for stricter gun laws on television and in Congress.
What damages are they looking for?
The plaintiffs are seeking $150 million for emotional distress, as well as reputational and punitive damages.
Reynal told jurors that his client had been punished enough and had lost millions of dollars that had come out of the major social media platforms.
He asked them to reward the plaintiffs with $1.
Can First Amendment Issues Affect the Outcome of a Trial?
Jones cannot argue that he is not liable for damages because his speech is protected. The judge had already ruled that he was responsible. But as a way to limit damages, his lawyers could argue that his speech is protected.
“A jury could say (Jones’ defamatory remarks) is actually something we don’t want to punish too harshly,” said Kevin Goldberg, a First Amendment expert at the Maryland-based Liberty Association.
If the experiment was all about free speech, could Jones have won?
He could claim that his statement was a hyperbole – a wild and unreal exaggeration of his words.
But it was difficult to convince jurors that he was merely making comments.
“It was a verifiable fact that the massacre at Sandy Hook happened,” Solomon said. “That’s not an opinion. That’s a fact.” Even if the parents are seen as public figures and impose a higher standard, he said, “I think Alex Jones is still going to lose.
But Covert said defamation is always a challenge to prove.
“I’m not discounting the possibility of Jones winning,” he said. “Trying to guess what a jury will find is always a fool’s errand.”
Could the Supreme Court be sympathetic to any Jones appeal?
Conservative and liberal judges have found that some deeply offensive speech is protected.
In 2011, the Supreme Court voted 8 to 1 to overturn a ruling by Kansas-based Westboro Baptist Church for striking a military funeral with signs saying God hates the United States for tolerating homosexuality.
“As a nation, we have chosen … to protect even offensive speech … to ensure that we do not stifle public debate,” the ruling said.
But it and the Jones case have key differences.
“Both were extreme, outrageous, shocking and deplorable. But Westboro Baptist Church was also overtly political and not defamatory … not about a person’s reputation,” Goldberg said.
He added: I will be shocked if the (Jones) case ends up in the Supreme Court.
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