ALEX JONES AND ACTUAL MALICE

Here is an excellent Atlantic piece about the recent massive libel verdict handed down against Alex Jones.  For those who have not been following, Jones is radio host who traffics in conspiracy theories and other fantasies.  I’ve not listened to his show very often, but when I have, he always seems to be yelling.

Among his other failings, Jones pushed pretty aggressively the theory that the Sandy Hook massacre was faked.  This obvious lie led to families of dead children getting harassed by Jones’ passionate listeners.  Most recently, in a second libel trial, a jury hit Jones with a nearly $1 billion verdict.  And while some feel this is a completely just, others seem to think it is a threat to the First Amendment and a miscarriage of justice at the very least.

It is interesting thought that at least some of those folks bemoaning the verdict cheered on Donald Trump when, in his 2016 Presidential campaign, he promised to “loosen up” libel laws to make it easier to sue for defamation.  The irony of this is that had Jones not managed to get a default judgment issued against himself, the jury would have had to find him liable under the very stringent New York Times v. Sullivan standard.

I suspect had the liability issue gone to a jury, Jones would have been found liable.  The nonsense he pushed out was provably false, Jones knew it was false (thus satisfying the actual malice standard), defamatory (since it alleged the parents were willing participants in a fraud) and it caused provable damages.  The family members had ample evidence of harassment, not to mention the sheer cruelty of Jones’s words.

This is really not an assault on the First Amendment.  Despite the text of the Amendment (“Congress shall make no law . . .”) there are in fact limits and some speech is unprotected.  False speech that damages a person’s reputation is not protected.  But if the person defamed is a public figure, the plaintiff needs to show not just falsity but actual malice – that is, speaking the falsity knowing it’s false.  It’s designed to be a difficult standard and it is.  But plaintiffs who satisfy the standard (or who no doubt could satisfy it) are entitled to damages.

Alex Jones supporters can whine all they want, but the system worked here and the First Amendment will be just fine.