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Alex Jones from Infowars.com speaks during a rally in support of Republican presidential candidate Donald Trump near the Republican National Convention in Cleveland, Ohio, U.S., July 18, 2016. REUTERS/Lucas Jackson

Prepared by Stephen D. Solomon, Editor First Amendment Watch, NYU’s Arthur L. Carter Journalism Institute

People whose reputation has been harmed by a publication may decide to sue for libel. In today’s highly charged political environment, a number of high-profile libel suits have been filed as a result of public controversies. Among them, Sandy Hook Elementary School parents sued Alex Jones and Infowars; coal mogul Robert Murray sued Last Week Tonight host John Oliver; Stormy Daniels, a porn star, sued Donald Trump; and a woman who claimed Bill Cosby assaulted her sued him for libel.

Sandy Hook parents, who suffered the trauma of losing their children to a mass murderer, and their lawsuit against conspiracy theorist Alex Jones, provides a compelling case study for teaching defamation law.

Your students can read about the Sandy Hook lawsuits here.

Learning Objectives
  1. Understand the libel law requirement for intentional or reckless falsehood, and analyze how it applies to the statements made by Alex Jones.
  2. Understand the First Amendment protection of opinion, and analyze whether it applies to the statements made by Alex Jones.
  3. Understand the First Amendment protection of rhetorical hyperbole, and analyze whether it applies to the statements made by Alex Jones.

Can the Sandy Hook Parents Prove an Intentional or Reckless Falsehood?

Alex Jones and his website Infowars have been the subject of multiple defamation lawsuits over his repeated claims that the 2012 shooting at the Sandy Hook Elementary School in Connecticut was a “giant hoax.”  Jones and Infowars continued to make these claims on broadcasts, and in articles published on his website, over the course of many years. Jones’ followers have harassed the families of the victims and many, in turn, filed suit against him for making statements that that they said were false and defamatory. See our posting about the lawsuit and read and hear Jones’ statements under “Documents and Resources.” The complaints filed by the Sandy Hook plaintiffs, also on our website, present the statements by Jones that are the subject of the lawsuits.

Under New York Times v. Sullivan, 376 U.S. 254 (1964) and in later cases, plaintiffs typically must prove that a defamatory statement is false. But even a false statement may be protected expression; plaintiffs must also prove that the false statement was published with fault. The level of fault to be proven depends on who is the plaintiff.

Public officials and public figures have the toughest burden of proof to meet. That’s because they have voluntarily assumed influential positions in society, and therefore their activities should be the object of continual scrutiny. Critics need substantial protection from libel suits or they will be chilled from providing vigorous coverage. Also, public officials and public figures can command the attention of the media to counter defamatory statement made about them without resorting to the courts for libel suits. Given these considerations, such persons are required to prove a high level of fault in order to win—that false, defamatory statements about them were published with knowledge of falsity or with a reckless disregard for the truth. An intentional falsehood is essentially a fabrication. Reckless disregard for the truth applies when the speaker had a high degree of awareness of probable falsity and published anyway.

On the other hand, private persons do not assume positions of influence, and so there is less imperative to cover their activities. So private persons enjoy a greater claim to protection from defamatory falsehoods. Generally, they must prove that the false statement was published with negligence—that is, with lack of due care under the circumstances. This negligence standard is much easier for a plaintiff to prove than a standard of intentional or reckless.

For the questions that follow, assume that the plaintiff Sandy Hook parents are public figures.

Questions for Discussion
  1. Why did the Supreme Court make it much more difficult for public officials and public figures to win libel suits than for private persons?
  2. Given what we know about Sandy Hook and Alex Jones’ statements about the tragedy, do you think that the plaintiffs can prove that Jones has published intentional falsehoods?
  3. If not intentional falsehood, do you think that the plaintiffs can prove that Jones acted with reckless disregard for the truth?

Can Alex Jones Use the First Amendment Opinion Defense?

The First Amendment enables a libel defendant to use the defense of opinion. Libel pertains only to false statements of fact. An expression of opinion, on the other hand, typically involves subjective judgments and not factual statements. As Justice Lewis Powell wrote in Gertz v. Welch, 418 U.S. 323 (1974), “there is no such thing as a false idea. However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries, but on the competition of other ideas.” But what exactly is opinion as distinguished from statements of fact? The Supreme Court in Milkovich v. Lorain, 497 U.S. 1 (1990) looked at whether a statement “is sufficiently factual to be susceptible of being proved true or false.” A more detailed test came with Ollman v. Evans, 750 F.2d 970 (D.C. Cir. 1984), in which a federal appeals court suggested a four-part test to determine whether a statement is protected opinion: (1) Is the statement verifiable, that is, capable of being proved true or false?; (2) What is the common usage of the words in the statement? (3) What is the journalistic context in which the statement is made? (for example, an op-ed would signal opinion); and (4) What is the social context in which the statement is made?

Questions for Discussion
  1. Why does the First Amendment protect expressions of opinion?
  2. Analyze whether the statements of Alex Jones on the Sandy Hook massacre constitutes opinion rather than expressions of fact.

Can Alex Jones Use the First Amendment Rhetorical Hyperbole Defense?

Another type of opinion defense involves rhetorical hyperbole. Again, libel suits involve statements of fact. In some situations, an expression can be so outrageous that no reasonable person would understand that it constitutes a statement of fact. For example, in Greenbelt Cooperative Publishing v. Bresler, 398 U.S. 6 (1970), a newspaper quoted a person who said that a developer’s negotiating position on a land deal with the city of Greenbelt, MD amounted to “blackmail.” The Court ruled that the statement in context did not actually accuse the developer of the crime of blackmail, but rather “even the most careless reader must have perceived that the word was no more than rhetorical hyperbole, a vigorous epithet used by those who considered [the developer’s] negotiating position extremely unreasonable.” In another case, Letter Carriers v. Austin, 418 U.S. 264 (1974), the use of the description “traitor” for workers who crossed the picket line in a strike was “merely rhetorical hyperbole, a lusty and imaginative expression of the contempt felt by union members” and not an accusation involving the crime of treason.

Questions for Discussion
    1. Why does the First Amendment protect hyperbolic expression? How common is hyperbole in political debate? What is the value of hyperbolic expression in political debate?
    2. How would Alex Jones argue that his speech involving the Sandy Hook massacre constitutes rhetorical hyperbole?
    3. Do you think Alex Jones’ statements constitute rhetorical hyperbole—that is, would reasonable people hearing or reading his statements understand that he was making assertions of purported fact?