How Alex Jones' Trial Relates to the First Amendment

All defamation suits are First Amendment cases
By Newser Editors and Wire Services
Posted Aug 2, 2022 4:51 PM CDT
How Alex Jones' Trial Relates to the First Amendment
Neil Heslin, the father of 6-year-old Sandy Hook shooting victim Jesse Lewis, becomes emotional during his testimony during the trial for Alex Jones on Tuesday.   (Briana Sanchez/Austin American-Statesman via AP, Pool)

(Newser) – Conspiracy theorist Alex Jones arrived at a Texas courthouse for his defamation trial for calling the Sandy Hook Elementary School attack a hoax with the words "Save the 1st" scrawled on tape covering his mouth. Although Jones portrays the lawsuit as an assault on the First Amendment, parents say his statements were so malicious and obviously false that they fell well outside the bounds of speech protected by the constitution, the AP reports. Jones said actors staged the shooting as a pretext to strengthen gun control, then later conceded the massacre occurred. The ongoing trial in Austin, where Jones' far-right Infowars website is based, stems from a $150 million suit brought by Neil Heslin and Scarlett Lewis, whose 6-year-old son was killed in the 2012 mass shooting. Here's a look the case, including First Amendment relevance:

  • Defamation laws: Typically, the first question jurors answer at trial is whether the speech qualifies as unprotected defamation, as understood through decades of US Supreme Court rulings. If it does, they consider damages. Jones' trial largely skipped the first question and went straight to the second. From the start, it focused not on whether Jones must pay damages, but how much. All defamation suits are First Amendment cases.
  • Defamation's elements: A successful case must involve someone making a false statement of fact publicly—typically via the media—and purporting that it's true. An opinion can't be defamatory. The statement also must have done damage to someone's reputation. The parents suing Jones say his lies about their child's death harmed their reputations and led to death threats from Jones' followers.
  • Noncompliance: Jones seemed to sabotage his chance to argue that his speech was protected by not complying with orders to hand over critical evidence, such as emails, which the parents hoped would prove he knew all along that his statements were false. That led the exasperated judge to enter a rare default judgment, declaring the parents winners before the trial began. "It is reasonable to presume that (Jones) and his team did not think they had a viable defense ... or they would have complied," said Barry Covert, a First Amendment lawyer.

  • Free speech arguments: Plaintiffs' lawyer Mark Bankston told jurors it doesn't protect defamatory speech. "Speech is free," he said, "but lies you have to pay for." In a deposition, Jones argued that "if questioning public events and free speech is banned because it might hurt somebody’s feelings, we are not in America anymore."
  • Public vs. nonpublic figures: In New York Times v. Sullivan in 1964, the Supreme Court said the bar for defamation among public figures must be higher than for nonpublic individuals because scrutiny of them is so vital to democracy. They must prove "actual malice,” that a false statement was made "with knowledge that it was false or with reckless disregard of whether it was false or not," rather than simply that a false statement was made carelessly.
  • Are the parents public figures? Their lawyers say they clearly aren't in the category of politicians or celebrities who stepped voluntarily into the public arena. The high court, however, has said those who temporarily enter public debates can become temporary public figures. Jones argues that Heslin did just that, entering the national debate over guns by advocating for tougher gun laws on TV and before Congress.
  • Can First Amendment issues influence the outcome? Indirectly, yes. Jones can't argue that he's not liable for damages on the grounds that his speech was protected. The judge already ruled he is liable. But as a way to limit damages, his lawyers can argue that his speech was protected.
  • Could Jones have won if the trial was all about free speech? He could have contended that his statements were hyperbolic opinion—that wild, non-factual exaggeration is his schtick. But it would have been tough to persuade jurors that he was merely riffing and opining. "It was a verifiable fact the massacre occurred at Sandy Hook," said Stephen D. Solomon, a founding editor of New York University's First Amendment Watch. "That's not opinion. It is a fact." Even if the parents were deemed public figures, imposing the higher standard, "I think Alex Jones would still lose," he said.
(Read more Alex Jones stories.)

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