Maybe InfoWars defense will be – “Hey nobody believe us anyway”

My friend Ben Kaufman sent me this link earlier this week.  The gist is that a plaintiff named Marcel Fontaine has filed a defamation suit against the website “InfoWars,” its head honcho Alex Jones, and reporter Kit Daniels.

In a story about the Parkland, Florida shooting, Daniels included a photo of Mr. Fontaine above a caption that read “And another alleged photo of the suspect shows communist garb.”  The InfoWars site added “Shooter is a commie.”

Not that InfoWars cares, but the story is false.  Mr. Fontaine lives in Massachusetts and, according to the lawsuit, has never even travelled to Florida. In the photo, he is wearing a shirt that says “Communist Party.”  It depicts famous communists, including Karl Marx drinking and carousing.  Marx is wearing a lampshade on his head.

For those unfamiliar with Alex Jones, here he is in action.   As for InfoWars, the lawsuit says it best:

“There was a time when Mr. Jones was a fringe character, little more than a hyper-active carnival barker in the midway of early 2000s conspiracy theory culture.  But over the past few years, InfoWars slowly adopted the mantle of ‘respectable’ media outlet and somehow went mainstream.  On May 22, 2017, InfoWars’ Washington Bureau Chief was given White House press credentials.”

The lawsuit makes some interesting points.  First, it highlights the reach of InfoWars.  According to the lawsuit, the site receives over 30 million page-views per month.  So it’s clear that the false story about Mr. Fontaine exposed him to a massive audience.  And of course, ignorant InfoWars readers tend to forward the articles on their own social media accounts, magnifying the harm. According to Mr. Fontaine’s complaint, Larry Pittman, a Republican legislator from North Carolina did just that.

Second, that massive audience is in large part, true believers of InfoWars fiction.  And worse for Mr. Fontaine, a lot of them don’t believe anything the mainstream media says.  So while we tend to think that clarifications and retractions can lessen the impact of defamatory information, that may not be the case here.

Third, not all of the InfoWars readership is, for lack of a better word, “hinged.”  Jones was a big proponent of the Pizzagate conspiracy.  According to that “story” the Democratic Party oversaw a pedophile slave ring in the basement of a Washington, D.C. pizzeria.  Which was interesting because not only was there no slave ring, there was no basement.  But that didn’t stop a loyal listener from travelling to the restaurant and firing shots inside, in an effort to put an end to the activity.

The complaint catalogues all of this background and more.  Which could prove problematic.  To the extent InfoWars is as ludicrous as it appears, one could argue that no one takes it serious, and so even if the information is false, no reasonable reader would believe it.  Defamation law recognizes a “hyperbole” defense.  To the extent the false statement is so over the top, it may not support a defamation claim.  For example, if one were to say Kellyanne Conway lies every time her lips move, that would be technically false.  I mean, when she says “good morning” to her kids, she is probably being sincere.  But I suspect if Kellyanne were to sue the person who said that (and to be clear, in case she is reading this, I am only using this as a hypothetical) she’d lose.

So maybe Jones and the InfoWars folks will argue that they are simply purveyors of hyperbole, and can’t be held accountable for what they spew.  That would no doubt impact their credibility on other matters, but let’s be honest, credibility doesn’t seem to be high on their priority list.

And ironically, cataloguing the history of InfoWars’ abuses may work against Mr. Fontaine in another way.  As the linked article notes,  Texas (the suit was filed in a Texas federal court) has an anti-SLAPP statute that prohibits lawsuits deemed frivolous, and filed to shut down a speaker generally.  If it appears Mr. Fontaine’s lawsuit is more political agenda than an actual complaint, the court could invoke the statute.

The good news for Mr. Fontaine, though, is that he has a legitimate complaint underlying his suit.  That sets him apart from the typical SLAPPer.  Having justice on your side is almost always a good thing.