Alex Jones’ website Infowars submitted high-profile bankruptcy filings this week, the latest chapter in his ongoing legal battle with relatives of victims of the Sandy Hook Elementary School massacre. Some are cautiously wondering if the families’ defamation lawsuits could offer a new model for battling the spread of harmful conspiracy theories.
American defamation law is famously deferential to free speech, particularly when made in good faith and particularly in instances when public figures are involved. But lawsuits brought against Jones by families of children and educators slaughtered by a gunman at Sandy Hook in 2012 represent a new use of this established tool.
Jones has been a vocal proponent of a disinformation campaign against the victims of the mass shooting in Newtown, Connecticut. He has falsely asserted that that mass shooting was a hoax and that the grieving families were crisis actors. Relatives filed three lawsuits in 2018, claiming that Jones exposed them to targeted harassment, including death threats.
“Spreading false facts that are knowingly defamatory of a person or company is exactly what defamation laws protect against. They protect peoples’ (and companies’) reputations, a perfect way to chill false speech,” said Ed Klaris, a media and intellectual property expert, in an email.
The Sandy Hook lawsuits are a bit different, however, because they don’t focus on harm against one individual’s reputation, said Roy Gutterman, a media law and First Amendment expert who directs the Tully Center for Free Speech at Syracuse University.
“Most defamation cases really focus on an individual plaintiff,” he said. “So, in some ways, these lawsuits against Alex Jones and Infowars are kind of a novel way to rein in this new genre of conspiracy theory-related information.”
But any defamation case is a double-edged sword, he cautioned, opening the door for potential action against many types of media, not just explicit disinformation peddlers.
“We’re always afraid of a slippery slope,” said Gutterman. “Who’s to say that today’s Infowars won’t be tomorrow’s mainstream media that somebody has a problem with?”
The defamation question
Jones has long maintained that his outlandish claims constitute protected free speech.
In a 2017 custody battle with his ex-wife, his lawyers asserted that Jones is “a performance artist.” Defending against the Sandy Hook lawsuits, lawyers said that Jones’ claims about the families were “rhetorical hyperbole.” This would grant him more First Amendment protection allowed to purveyors of parody, satire or “pure opinion.”
“But you can’t have it both ways,” Gutterman said. “You can’t propagate false information and say, ‘No one’s taking me seriously anyway.’”
The defamation lawsuits against Jones — whose claims against the Sandy Hook families transpired over years — reveal a different landscape for American libel laws, Gutterman said. The landmark Supreme Court case governing libel is 1964′s New York Times Co. v. Sullivan.
In that case, the paper of record was sued by the Montgomery, Alabama, police commissioner for running an advertisement critical of his department’s treatment of civil rights protesters, which contained some factual inaccuracies. The court ruled in favor of the Times, determining that a defendant must knowingly or intentionally publish false information.
In sworn depositions, Jones has said that he understands the Sandy Hook massacre was not a hoax.
“People involved in First Amendment law right now are wringing their hands about where the Times v. Sullivan standard plays out in a modern media landscape,” said Gutterman. “1964 … was a different era. I don’t know if we could have anticipated some of the crazy false information we’re seeing nowadays spreading on social media.”
This is not the first time in recent memory that defamation laws have been leveraged in a disinformation case. The voting companies Dominion Voting Systems and Smartmatic are engaged in defamation suits against right-wing media outlets and individuals, including Fox News, OANN, and allies and lawyers to former president Donald Trump, for baseless claims that their machines had contributed to election fraud.
In general, adjudicating defamation lawsuits is challenging, said Gutterman, because U.S. law seeks to balance the primacy of free speech against harms caused. In the modern age of social media, those harms can spread further and faster than when early precedent was set.
“These cases put media people in a precarious position. You want to support free flow of information and robust public debate on public issues,” he said. “But we need to rein in blatantly false and harmful information.”
The potential expense of being found liable for libel can also hamstring traditional media outlets, particularly smaller ones, said Klaris.
“That’s why we so rarely see major investigations into powerful (wealthy) people and companies,” he said. “That’s why the media is handicapped as the Fourth Estate.”
The bankruptcy case
Jones’ Infowars, a website and a radio program of the same name, often spreads far-right and outlandish conspiracy theories, such as 9/11 trutherism — the idea that the U.S. government is responsible for the Sept. 11 attacks — and Pizzagate, which alleged that Hillary Clinton and others operated a child sex trafficking ring out of a D.C. pizza restaurant.
That website and two other companies owned by Jones — IWHealth and Prison Planet TV — filed for Chapter 11 bankruptcy protection on Sunday in the U.S. Bankruptcy Court for the Southern District of Texas.
Jones faces a trial in the next month to determine the amount of damages owed to plaintiffs in one of the lawsuits filed in that state. That could have dismantled Jones’ assets, according to a bankruptcy declaration filed Monday.
Chapter 11 allows a company to remain in business while restructuring or attempting to negotiate its debts. It also places pending civil litigation on hold.
One lawyer representing plaintiffs in Connecticut called the filing a delay tactic.
Jones “will be held accountable for his profit-driven campaign of lies against the Sandy Hook families who have brought this lawsuit,” said attorney Chris Mattei in a statement Monday.
According to the filings, Infowars claims its assets are worth $0 to $50,000, while its liabilities range from $1,000,001 to $10 million. Paperwork also states that Jones and his companies have spent $10 million handling the Sandy Hook lawsuits and set aside $725,000 for the bankruptcy administration as well as $2 million for settlements.
Those liabilities include the prospective judgment on behalf of the Sandy Hook plaintiffs, said Klaris, the media lawyer.
Notably, it is Jones’ companies — not him as an individual — filing for Chapter 11 protection.
This may be to protect his own personal finances from coming under scrutiny, experts say. Plaintiffs believe he may be using the move to hide assets, diverting to companies owned by family members when they first filed suit in 2018.
A new lawsuit filed April 6 alleges that Jones moved $72 million from his parent company to himself and to shell companies.
“Jones may have taken money out of the companies so they will have to search high and low for money he disbursed,” said Klaris. “In one way the plaintiffs won. They put Infowars out of business. But in another, they will have a hard time collecting.”
And no matter what becomes of those companies, Jones as a person can begin again, Klaris added.
“Jones may start a new company under a new name and continue to peddle his disinformation. Nothing in the law would stop him from doing that.”
The courts’ role in the battle over disinformation
Nevertheless, this case may provide a “blueprint for future lawsuits when fake news causes some palpable damage,” according to Gutterman.
The Sandy Hook families can point to real-life harm from online disinformation. Because of the relentless attention cast on them, they were subject to scrutiny, harassment and stalking. One family, for example, has had to move 10 times and now lives in hiding.
But proving liability from disinformation is not always so easy. In the case of Dominion Voting Systems, for example, the company will have to demonstrate that news outlets knowingly published false information that it engaged in a voter fraud conspiracy.
And as these lawsuits wind through the courts, they could alter defamation law. Some experts worry about the effects this could have on the media landscape.
“Ironically, Infowars going out of business will chill legitimate media,” said Klaris.
Thanks to Lillian Barkley for copy editing this article.