Edward Fitzpatrick, RWU director of media and public relations, a New England First Amendment Coalition and Common Cause Rhode Island board member, and a former Providence Journal columnist:
The First Amendment protects a lot of outlandish, hateful speech.
It protected the right of Westboro Baptist Church members to hold anti-gay protests at the funerals of fallen soldiers. And it protected the right of neo-Nazis to march through the Chicago suburb of Skokie where many Holocaust survivors lived (they ended up marching in Chicago).
But as Alex Jones seeks to cower behind the First Amendment, he might not find the shelter he seeks for his particular brand of baleful blather.
As the founder of the Infowars website and media platform, Jones has made a living peddling dark conspiracy theories (along with dietary supplements and survivalist gear). He has shown no regard for the truth – and no regard the pain that he has inflicted – while having the gall to claim that the Sandy Hook school shooting in Connecticut was an elaborate hoax, that the 9/11 terrorist attacks were an “inside job” and that the FBI engineered the Boston Marathon bombings.
But now that he is facing civil lawsuits by Sandy Hook families and now that big tech firms such as Google and Facebook have bounced most of his posts from their platforms, Jones is displaying a high regard for the First Amendment.
When Sandy Hook families filed a defamation suit against him in early August, Jones described it as an attack on him and the First Amendment. “This is the modern Lexington, this is the modern Concord,” he said.
But First Amendment experts say this might actually turn out to be the modern Waterloo for Jones.
“It is hard to imagine more sympathetic plaintiffs than the parents of the children who were killed,” said Professor David A. Logan, former dean of the Roger Williams University School of Law. “They allege that Infowars broadcasts defamed them by portraying them as liars for insisting that their children were, in fact, dead.”
Many defamation cases focus on somewhat ephemeral harms to reputation, but these plaintiffs can prove they were stalked and harassed by Infowars followers after Jones displayed their addresses and maps to their homes on his show, Logan said.
Jones claims he is immune from liability because the harmful statements were opinions rather than fact. “Courts have struggled with where to draw the line between fact and opinion,” Logan said. “But it is certainly possible that allegations that a person is part of a government conspiracy and is lying when they say their child is dead are sufficiently verifiable to be support a defamation claim.”
Jones also claims the plaintiffs were “public figures” who must prove by “clear and convincing evidence” that he made the statements knowing they were false, or with reckless disregard for the truth. “This, too, is not a clear winner for Jones,” Logan said. “These plaintiffs were inadvertently drawn into the debate about Sandy Hook and gun control.”
Even if the plaintiffs are considered public figures, “there is much in Jones’ past behavior that calls into question whether he made any effort to verify the truth of his assertions,” Logan said. “That could support a substantial jury award.”
After Apple, Google, Facebook and Spotify erased most of Jones’ posts and videos from their services, Jones tweeted: “Now, who will stand against Tyranny and who will stand for free speech?”
Well, it is worth remembering that the First Amendment protects freedom not just for speech we agree with – it protects freedom for “the thought that we hate,” as U.S. Supreme Court Justice Oliver Wendell Holmes Jr. wrote in a famous dissent in 1929.
But it is also worth remembering that the First Amendment prohibits the government (as opposed to private entities) from abridging freedom of speech, said First Amendment lawyer Gregory V. Sullivan, a New England First Amendment Coalition board member and general counsel for the Union Leader Corporation.
“If it isn’t the government, it isn’t the First Amendment,” Sullivan said. “We participate in social media under the rules that the private companies set for us, and if we don’t like the rules, we don’t have to participate.” Some argue Facebook is so large that it is in effect a public square, but he said, “The public square is owned by the public. These are private companies.”
Sullivan noted the First Amendment does not protect all speech. For example, it doesn’t protect obscenity and it doesn’t protect defamation. “Plus, there are torts that come to mind,” he said. “If I were representing a family who lost a child in a school shooting and some guys says that is fake, these kids were not shot, I’d sue the guy for negligent and intentional infliction of emotional distress.”
So while Jones believes the First Amendment will protect his outlandish, hateful speech, that might just turn out to be his latest false claim.