Win or Lose, the Alex Jones Lawsuit Will Help Redefine Free Speech

March 20, 2019 0 By JohnValbyNation

Once upon a time, there was a fringe news outlet with a loud and dissenting opinion. A fatal shooting, it claimed, was not at all what it seemed to be: It was a hoax, orchestrated by some shadowy force—probably Communists—bent on replacing freedom with dictatorship. This was untrue, but that didn’t stop the outlet from naming and insulting alleged collaborators. And so the media outlet was sued for defamation.

This story might seem familiar, but we’re not actually talking about Alex Jones, the Infowars founder who infamously spread the lie that the Sandy Hook school shooting was an elaborate hoax—the grieving parents simply crisis actors—across YouTube, and is now being sued by Lenny Pozner and Veronique De La Rosa, the parents of Noah Pozner, a 6-year-old killed in the attack. We’re talking about Gertz v. Robert Welch, Inc., a Supreme Court case that will provide the legal precedent for the court to decide how hard or easy it will be to take Alex Jones to task for spreading lies.

Trouble is, that case was tried in 1974.

A lot has happened in the past half century. Most notably, the emergence of Jones’ preferred medium: the internet. In a case where the web is not only the vector of the defamation but also the means of targeted harassment campaigns, severe enough that Pozner’s parents have moved seven times in the past five years, that is a pretty serious context switch.

Thus far, Jones’ legal arguments remain embroiled in the nuances of free speech: Specifically, what kind of platform constitutes a serious media institution, and what kind of actions signify a public figure. While it’s hard to sympathize with a man who spent years haranguing the parents of a murdered first grader, in a time when the modes and impacts of speech are being redesigned and renegotiated with every software update and platform policy, these are pressing questions. Whether Jones wins or loses, his suit, according to First Amendment lawyers, will be a building block for the way we think of free speech in the age of the internet.

And now back to precedents. In 1964, the Supreme Court heard the case of a Montgomery Public Safety commissioner who felt defamed by an ad in The New York Times that claimed the police departments he supervised had arrested Martin Luther King Jr. seven times. (Really they’d just arrested King four times.) In the resulting case, New York Times v. Sullivan, the court bestowed special status to public officials like the commissioner: Defamation would require “actual malice,” a knowingly false statement in “reckless disregard” of the truth. This high bar was a way of protecting the First Amendment-guaranteed right to speak openly about those in power.

Gertz v. Robert Welch, Inc. added a new wrinkle in the form of another type of public figure—a “limited-purpose public figure,” who also required the high bar of malice. Jones claims that by entering the public debates on misinformation and gun control, De La Rosa and Pozner occupy this second group. (De La Rosa has advocated for an assault rifle ban, and Pozner founded a nonprofit devoted to fighting misinformation.)

This is where the context of the internet starts to matter. The law assumes a narrow notion of fame—not a world where a YouTube channel’s following can rival a media company’s and the parents of a slain child can instantly become household names. “The First Amendment is a legal tool … crafted in a particular time to deal with particular media environments,” says Neil Richards, a First Amendment expert at the University of Washington Law School. “Our libel model is one that envisions establishment media and a bunch of people gossiping. It doesn’t envision social media.”

Do Pozner and De La Rosa count as limited-purpose public figures? Maybe. “Arguments have been made that in the digital world, you can be a public figure in the context of a particular videogame,” says Sandra Baron, a resident fellow at Yale Law School. “Even if no one outside that community would have ever heard of you.” So the Sandy Hook parents’ #activism may qualify them by making them well known in gun control circles, while public moves like founding nonprofits would only cement that status.

Others have argued that their accidental fame is another reason to revisit the laws. Under the original Gertz v. Robert Welch, Inc., the justices decided that, while it was technically possible to become an involuntary limited-purpose public figure, someone who is thrust into the public debate by outside design, such instances would be “exceedingly rare.” Not so in the age of the web. Having a mob of conspiracy theorists pillory you for articulating grief over a murdered child seems exactly the sort of public entrance no one would make voluntarily—and in age of virality, such situations aren’t even uncommon. We are all one rogue tweet away from public figure-dom.

Yet Jones is walking a second, well-trod line: No reasonable person should take what Jones says as fact. In that way, his (multiple) defamation lawsuits are a legal test run for internet trolls’ favorite excuse for their bad behavior: LOL JK.

As always, digital trolls aren’t as edgy as they’d have you think. This excuse has relevant pre-internet case law behind it: A few shock jocks on talk radio have successfully deflected defamation cases by arguing that no one took their comments seriously. But even if Jones wins that argument, he might lose against Pozner and De La Rosa’s claims that he intentionally inflicted emotional distress. See, the tale of the shock jock cuts both ways: According to Baron, shock jocks were the only defendants she ever saw lose to that argument, because their behavior—while performative—was considered so outside any form of civilized norm. Might harassing (and doxing) the parents of a murdered child qualify? It’s apparently not outside the internet’s moral code. IRL, it’ll depend on the judge, and the jury.

For the most part, this push and pull between internet and legal norms is a good thing—as long as it continues to evolve. “We adjusted the law to deal with the mass market media era of television and newspapers,” Richards says. “It’s clear that First Amendment doctrine needs to evolve, not to undo freedom of speech, but to ensure the values of public debate and of democratic self-government continue in a digital environment.”

That might mean adjusting what it means to be a public figure, so victims of tragedy don’t feel unable to express their feelings on social media. It might mean recalibrating what counts as “reckless,” when lies on the internet can mobilize genuine real world threats. Or, it might mean doubling down on protections for the kind of wild, fringe speech Jones engages in. What's important is we learn to negotiate the balance between speaking safely, and freely, on the web.