Religious freedom and freedom of speech form an inseparable part of the First Amendment of the Constitution. This week as Alex Jones was hit with a nearly $1 billion judgment for what he said on his radio show and PayPal hastily withdrew a “misinformation fine” that it “accidentally” included in its user agreement, it’s worth taking a step back and understanding how the Courts have interpreted this fundamental right.
Free Speech and the Civil Rights Movement
In New York Times v. Sullivan, 376 U.S. 254 (1964), the Supreme Court reversed a libel damages judgment against the newspaper and that libelous words about a public official can be protected in the name of fostering debate about government and public affairs. The case involves the placement of a newspaper advertisement in 1960 called “Heed Their Rising Voices” that protested how Alabama law enforcement treated Martin Luther King, Jr. It named civil rights activitists, writers, ministers, and others.
L.B. Sullivan, an elected city commissioner in Montgomery, Alabama, supervised the police. Sullivan sued the New York Times and was awarded $500,000 by a jury because all he had to prove under Alabama law was that the advertisement contained mistakes that had harmed his reputation, even though he was not mentioned in the ad. But the fact that the police officers he oversaw were criticized meant that it would damage his reputation.
He gained the sympathies of the Alabama jury and convinced them that two of the claims in the document were false. There were two disputed sections. First, it said that the entire body had refused to register for classes in solidarity with nine students expelled for protesting at the state capitol. This was false because most students, not all, had boycotted classes for a single day.
The other section said that Dr. King had been arrested seven times and implied that the police had been involved in bombing his home. Sullivan noted that Dr. King had only been arrested four times and that the police had not been involved in the bombing.
His attorneys called it “libelous per se” because it caused him “public contempt.” The only defense would be to prove to the jury that everything said in the advertisement was true.
In a move that likely saved the ability to keep publishing stories about the Civil Rights Movement, the New York Times appealed the $500,000 verdict to the U.S. Supreme Court, which unanimously ruled for the Times. The court held that “debate on public issues should be uninhibited, robust, and wide-open” even if there might be some “misinformation” involved. Just because there are factual errors does not mean defamation is engaged.
PayPal’s “Accidentally Announced” Misinformation Fine
Last week, online payment processing company PayPal released new user terms that would allow the company to retain $2,500 per incident of “misinformation” by customers. There was nothing said about what constituted “misinformation.” The backlash to the policy was swift, and PayPal later noted that adding the “misinformation” clause was an “accident.” The circumstances in which such an “accident” could occur are difficult to fathom, but setting that aside, the policing of “misinformation” is more of an art than a science. It could be as broad as to include any factual error (like PayPal’s “accidental” publication of the misinformation clause) or only those that were part of an unannounced proscribed list.
Earlier this year, the Biden administration abandoned efforts to form an Orwelling-sounding Disinformation Board to fight disinformation on the internet. Presumably, this would include removing comments about Hunter Biden’s laptop before the 2020 election and various theories about COVID-19. Some ideas that some believe the American public cannot digest and should not discuss among themselves, and if they do so in any free forum, they should be shut out.
Then there are “lies.” A person can spread “misinformation” but sincerely believe it is true, even if “authorities” try to show them that it is not. The crux of the issue lies in the definition of “lie.” It’s not uncommon to hear the media say that somebody’s opinion is a “lie” because it contradicts what most people believe.
Are Sincere Flat-Earthers Lying?
Is a flat-earther lying when they promote their theory that the round earth is part of some conspiracy? Maybe somebody is masochistic enough to risk the disapproval of the thinking world and say the world is flat for some other benefit, but most of the time, it is seen as “ignorant.” Does a person who sincerely believes the 2000, 2016, or 2020 elections were illegitimate “lie” just because they don’t think the conclusions reached by all the courts, or are they just stubborn and ignorant, choosing to believe their first impression rather than evolve in their thinking as evidence comes out.
Similarly, Twitter, other private social media companies, and a bank have taken to “de-platforming” people who have expressed some awful opinions, shutting them out of the stream of ideas and commerce. The politically opinionated often speak of being placed in Twitter or Facebook “jail” for periods of punishment for things they have said, and the alternative social media platforms they’ve gone to are considered grave threats to the status quo. After all, some people routinely say things that should not be told among polite company, and there are always crazy people who will take what they hear and act on it irresponsibly.
Adverse Inference and Alex Jones
The gravelly-voiced conspiracy theorist, Alex Jones, has a loyal following of contrarians who listen to him as the authority on any number of current issues. Today, a jury reached a verdict against Jones for defamation after he repeated an insane conspiracy theory that the Sandy Hook Elementary school shooting, in which 20 first graders and six educators were killed, did not happen. He said it was a hoax designed to increase gun control. Jones’s followers sickeningly relied on his theories to intimidate the victims’ families and make their lives even harder. This was a repeated feature of his show, not just a one-time statement.
The ordinary citizens, who are not public officials, who were suing Jones would have had to prove that he carelessly made false statements. In contrast, public figures, per Sullivan, need to show “actual malice” and that incorrect information was made “with the knowledge that it was false or with reckless disregard of whether it was false or not.” Jones’ argued that they were public officials, but the fact that their children were murdered is not the same as winning an election or holding a public job. To maintain their allegation, the families suing Jones demanded copies of his emails and other documents to show that he knew the whole time that his on-air claims were false. But Jones refused to turn them over despite court orders that he do so.
Last year, Judge Maya Guerra Gamble entered a default judgment against Jones, applying an adverse inference standard, finding that he lost the case because he refused to defend himself by providing the evidence. The matter went to the jury to determine damages, and today they found he owed nearly $1 billion.
The easy way for Jones to win would be to show that what he had said was correct and that the massacre had been staged, but he could not do that and did not even attempt it. Instead, he rode the cash wave of those who felt their Second Amendment rights had been threatened and would continue to tune into his media.
The specificity of Jones’ statements about the Sandy Hook families differs from the 2011 case involving the Westboro Baptist Church. In that case, the Supreme Court ruled 8-1 that even though the group had offensively picketed military funerals, their statements were general. “As a Nation, we have chosen … to protect even hurtful speech … to ensure that we do not stifle public debate.”
I do not anticipate that the Supreme Court will hear Alex Jones because his case was self-sabotaged by the refusal to provide the requested defensive evidence. I also do not expect social media platforms to be forced to carry speech they find objectionable. But this could lead to a balkanization of the media with people self-isolating into conversational silos. We will continue to watch these developments.