Janine Jackson interviewed Elon University’s Enrique Armijo about the Alex Jones lawsuit for the November 19, 2021, episode of CounterSpin. This is a lightly edited transcript.
The Conversation (11/15/21)
Janine Jackson: An article by our next guest begins with the news that a Connecticut judge has found radio host Alex Jones
liable in the defamation claim brought against him by parents of six- and seven-year-old children killed in the Sandy Hook massacre for falsely claiming they were accomplices in faking the murders of their own children.
Because that’s the kind of sentence we get to hear in 2021.
Alex Jones has urgently and repeatedly told millions of people that Hillary Clinton runs a child-trafficking ring from the back of a pizza parlor, that Donald Trump won the 2020 election, and that Tangy Tangerine supplements made him lose 37 pounds in two months. The thing is, when Jones’ ex-wife was suing him for custody of their children, because, reportedly, she didn’t want them around someone who tells ardent followers he wants to break people’s necks, or have women sexually assaulted, or lawyers’ heads brought to him on a pike, Jones’ defense was that he is just playing a character. Nobody is supposed to believe what he says. Asking Jones to account for things he says, his lawyers assert, is like judging Jack Nicholson by his depiction of the Joker in Batman.
Well, Jones’ most recent court loss is around those claims that the 2012 Connecticut shooting that killed 20 first graders and six educators was a government plot to take away American guns, and that grieving parents were paid actors in the scheme. It’s that case, and what it leaves unresolved, that our guest is here to discuss.
Enrique Armijo is a law professor at Elon University, as well as an affiliate fellow of the Yale Law School Information Society Project. He joins us now by phone from North Carolina. Welcome to CounterSpin, Enrique Armijo.
Enrique Armijo: Thanks for having me, Janine.
InfoWars‘ Alex Jones
JJ: This judgment from Connecticut, which is similar to previous ones around Jones’ shtick around the Sandy Hook massacre, it was a “default judgment.” What does that mean, and what doesn’t that mean?
EA: What it basically means is that the reason that Alex Jones has, in effect, for purposes of this trial, been found to be liable is not because his legal arguments were considered on their merits and rejected, but rather that he just refused to defend himself against these state law claims, brought against him in Connecticut and Texas by the Sandy Hook parents for—the claim is of defamation.
So what that means is that the juries in these cases are now simply going to go on and decide damages, that is, the degree to which Alex Jones’ statements harmed the reputations and caused emotional distress for these families. What it doesn’t mean, as I said, is that there have been conclusive rulings at the state court level, or really the United States Supreme Court level, with respect to the First Amendment, regarding some of the First Amendment issues that would have been at issue in this case had it been litigated on the merits.
JJ: Yeah, it seems important that his actions are self-protective, in a way. Like, by just not participating, he preserves his ability in the minds of some to say, “I never had my day in court,” and at the same time to say, “I refused to participate in this corrupt system,” which of course is going to be part of his rhetoric.
But in your piece for The Conversation that explores this, you talk about how this sort of defamation claim might have been seen differently by courts, even up to the 1950s. So what’s changed?
EA: Prior to the 1950s, and prior really to the United States Supreme Court’s intervention into state law defamation claims—basically, allegations that a speaker has said something that’s false, and that negatively affects the reputation of the subject of that statement, and which has caused the subject of the statement damages that are compensable in state court.
Basically, prior to the constitutionalization by the United States Supreme Court of these state law claims, plaintiffs like the Sandy Hook parents would have simply had to show that the statement was about them, and that it caused them some harm, and that there was some minor (what’s known in the law of defamation as) degree of fault, where basically the statement was made by the speaker defendant without any kind of reasonable investigation, or whether or not the statement was actually true.
So what happened in a case that I talk about, a very famous case called New York Times v. Sullivan, is that the United States Supreme Court basically said, because of the First Amendment, people should be freer to speak about public officials, including the possibility that some of the statements that they make about public officials might be false. So we had to protect these kinds of statements, even false statements, by saying that the plaintiff in these cases—in other words, public officials who thought they were defamed by other people’s statements—would have to show what’s known as actual malice. What that means is that the speaker had to have made the false statement either knowing that it was false, or with reckless disregard as to whether or not it was true.
So the New York Times v. Sullivan was a case brought by a police commissioner in Alabama against the New York Times. And in later cases, as I go through in some detail in the piece, this idea that it should be harder for public officials to show defamation, because the First Amendment wants to encourage people to talk about public officials without risk of being held liable, that was extended to not just public officials—and the case basically means elected officials or individuals in very high levels of government— but also what the Supreme Court called public figures.
So these are folks that are not elected officials, they’re not servants in government. But they’re otherwise notable, in a way that the First Amendment should permit discussion about them. And the Supreme Court essentially applied a degree of fault to public officials from the Sullivan case to public figures in a series of cases. And public figures, essentially in many instances, are otherwise private people. So the idea that it would be harder to show defamation extended to private people who were for purposes of litigation what’s known as limited purpose public figures.
JJ: Which is an odd sort of thing. It’s like you came into the news, so now you are a limited purpose public figure. And that’s Gertz v. Welch that you’re talking about. How did that change things in that way?
EA: Exactly. So in other words, if you were a person who had inserted yourself into a controversy, in the Gertz case, the Supreme Court said that it should be harder for you to show that someone else has defamed you, because, again, there’s a First Amendment interest in talking about the controversy.
And one of those justifications, in saying that it should be harder for public figures to show defamation is, as you just said, that the public figure has the opportunity to protect their own reputation. So in other words, if I’m a public figure and I’m defamed, and I want to rebut that defamation, people will listen to me, right? There will be an audience for my self-help. And also, and I think this is the issue in the Jones case that I talk about, the fact that I voluntarily inserted myself into a controversy essentially means that I have assumed the risk of potential defamation when other people talk about that controversy, including my role in that controversy.
JJ: We can see why this is very much a live and thorny issue. And there is the role of the internet, which, as you indicate in the piece, has changed defamation laws, as you’re starting to talk about, has changed that idea that folks have a platform to speak back against defamation. And yet we still have the law, and harm is still done. So how does that bring us back to Alex Jones?
Enrique Armijo: “The internet has really changed the distinction between public and private…to make it much easier that someone is a public figure.”
EA: The legal issues in the case, as brought by the parents, were initially being litigated. And one issue to litigate, initially, is basically Alex Jones, and other folks involved with InfoWars, their state of mind with respect to these statements that they were making about the parents. And what Alex Jones was arguing is that the parents essentially had to show that Alex Jones made the statements knowing that they were false, because the parents had injected themselves into this controversy about gun rights, and that in one case they were advocating about stricter gun laws in the United States in the wake of the Sandy Hook shooting.
And what I try to get at in the piece is that that is a very dangerous argument for defendants in defamation cases to make, because, as you said, the internet has really changed the distinction between public and private. And one of the things that it’s done with respect to defamation law is to make it much easier that someone is a public figure, right?
So in other words, if you put something on the internet, if you make an argument on the internet, and then someone defames you, the person that defames you is going to basically say that you’ve inserted yourself in the controversy. Now I can say anything about you and not be sued for it, unless you can show that I knew it was false. And, obviously, state of mind is hard to prove, right? So as you said at the beginning, Alex Jones and these types of folks’ modus operandi is to say, “I’m just raising questions. I don’t know what’s true or false.” You know, to use the quintessential Donald Trump term, “People are saying this. I’m not saying it, but people are saying it.”
So once you get into this very rigorous requirement that you have to basically show that someone knew the defamatory statement was false, or acted with what’s known as reckless disregard as to whether or not it was true, by making it easier to argue folks are public figures, you’ve also made it much more difficult for people who claim that they’re still private people to successfully sue for defamation.
JJ: And I just want to end on that note, that it’s being presented, and can be presented, as just media mouthiness, and we can’t lose sight of the fact that there are people impacted here. And in the piece, you say that one of the impacts, one of the effects of making individuals prove actual malice against someone like Jones, would encourage families, for example, to take the tragedies that happen to them and swallow them silently.
So once again, when we talk about the First Amendment, when we talk about speech, we often talk about the speaker. And we have to also keep in mind the chilling effect, and the effect on other people when they are not allowed to hear things, ’cause people are scared to say them.
EA: And that’s really the fear that I express in the piece with respect to this issue, is that I don’t think—I certainly wouldn’t want, and I don’t think any fair-minded person would want, a parent who has suffered this kind of tragedy to be thinking about preserving their right to sue someone for defamation later, if they decided that one of the things they wanted to do with that grief is try to make sure the incident didn’t happen again.
I think what would happen is if the Alex Jones side of this argument would win, these parents, rather than speaking out and trying to prevent other school shootings, they would think, well, I want to remain private. I want to protect my own reputation. And there’s a real First Amendment loss to that, because we don’t get to hear from people who really have the most important things to say about these tragic events, and how to potentially prevent them in the future.
JJ: We’ve been speaking with Enrique Armijo, professor of law at Elon University. His article, “Alex Jones Loses Sandy Hook Case, but Important Defamation Issues Remain Unresolved,” can be found at TheConversation.com. Enrique Armijo, thank you so much for joining us this week on CounterSpin.
EA: Thank you.
The post ‘Now I Can Say Anything About You and Not Be Sued for It’ appeared first on FAIR.
This content originally appeared on FAIR and was authored by Janine Jackson.
Janine Jackson | Radio Free (2021-12-02T22:17:40+00:00) ‘Now I Can Say Anything About You and Not Be Sued for It’. Retrieved from https://www.radiofree.org/2021/12/02/now-i-can-say-anything-about-you-and-not-be-sued-for-it/
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