{"id":415409,"date":"2021-12-02T22:17:40","date_gmt":"2021-12-02T22:17:40","guid":{"rendered":"https:\/\/fair.org\/?p=9025133"},"modified":"2021-12-02T22:17:40","modified_gmt":"2021-12-02T22:17:40","slug":"now-i-can-say-anything-about-you-and-not-be-sued-for-it","status":"publish","type":"post","link":"https:\/\/radiofree.asia\/2021\/12\/02\/now-i-can-say-anything-about-you-and-not-be-sued-for-it\/","title":{"rendered":"\u2018Now I Can Say Anything About You and Not Be Sued for It\u2019"},"content":{"rendered":"<p>&nbsp;<\/p>\n<p><i>Janine Jackson interviewed Elon University&#8217;s <\/i><em>Enrique Armijo<\/em><i> about the Alex Jones lawsuit for the <\/i><a href=\"https:\/\/fair.org\/home\/jon-schwarz-on-inflation-enrique-armijo-on-alex-jones\/\"><i>November 19, 2021, episode<\/i><\/a><i> of <\/i><b><i>CounterSpin<\/i><\/b><i>. This is a lightly edited transcript.<\/i><\/p>\n<div id=\"mp3jWrap_0\" class=\"mjp-s-wrapper s-graphic unsel-mjp  verdana-mjp\" style=\"font-size:14px;\"><span id=\"playpause_wrap_mp3j_0\" class=\"wrap_inline_mp3j\" style=\"font-weight:700;\"><span class=\"gfxbutton_mp3j play-mjp\" id=\"playpause_mp3j_0\" style=\"font-size:14px;\">&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;<\/span>&nbsp;<span class=\"group_wrap\"><span class=\"bars_mp3j\"><span class=\"loadB_mp3j\" id=\"load_mp3j_0\"><\/span><span class=\"posbarB_mp3j\" id=\"posbar_mp3j_0\"><\/span><\/span><span class=\"T_mp3j\" id=\"T_mp3j_0\" style=\"font-size:14px;\">CounterSpin211119Armijo.mp3<\/span><span class=\"indi_mp3j\" style=\"font-size:9.8px;\" id=\"statusMI_0\"><\/span><\/span><\/span><\/div><span class=\"s-nosolution\" id=\"mp3j_nosolution_0\" style=\"display:none;\"><\/span><script>\nMP3jPLAYLISTS.inline_0 = [\n\t{ name: \"CounterSpin211119Armijo.mp3\", formats: [\"mp3\"], mp3: \"aHR0cHM6Ly9tZWRpYS5ibHVicnJ5LmNvbS9jb3VudGVyc3Bpbi9jb250ZW50LmJsdWJycnkuY29tL2NvdW50ZXJzcGluL0NvdW50ZXJTcGluMjExMTE5QXJtaWpvLm1wMw==\", counterpart:\"\", artist: \"\", image: \"\", imgurl: \"\" }\n];\n<\/script>\n\n<script>MP3jPLAYERS[0] = { list: MP3jPLAYLISTS.inline_0, tr:0, type:'single', lstate:'', loop:false, play_txt:'&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;', pause_txt:'&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;', pp_title:'', autoplay:false, download:false, vol:80, height:'' };<\/script>\n<p>&nbsp;<\/p>\n<div id=\"attachment_9025136\" style=\"width: 360px\" class=\"wp-caption alignright\"><img aria-describedby=\"caption-attachment-9025136\" loading=\"lazy\" class=\"wp-image-9025136\" src=\"https:\/\/fair.org\/wp-content\/uploads\/2021\/12\/Conversation-Alex-Jones-e1638470885554.png\" alt=\"The Conversation: Alex Jones loses Sandy Hook case, but important defamation issues remain unresolved\" width=\"350\" height=\"193\" \/><p id=\"caption-attachment-9025136\" class=\"wp-caption-text\"><em><strong>The Conversation<\/strong> (<a href=\"https:\/\/theconversation.com\/alex-jones-loses-sandy-hook-case-but-important-defamation-issues-remain-unresolved-171914\">11\/15\/21<\/a>)<\/em><\/p><\/div>\n<p><b>Janine Jackson: <\/b>An <a href=\"https:\/\/theconversation.com\/alex-jones-loses-sandy-hook-case-but-important-defamation-issues-remain-unresolved-171914\">article<\/a> by our next guest begins with the news that a Connecticut judge has found radio host Alex Jones<\/p>\n<blockquote><p>liable in the defamation claim brought against him by parents of six- and seven-year-old children killed in the Sandy Hook massacre for falsely claiming they were accomplices in faking the murders of their own children.<\/p><\/blockquote>\n<p>Because that\u2019s the kind of sentence we get to hear in 2021.<\/p>\n<p>Alex Jones has urgently and repeatedly told millions of people that Hillary Clinton runs a <a href=\"https:\/\/www.washingtonpost.com\/lifestyle\/style\/conspiracy-theorist-alex-jones-backs-off-pizzagate-claims\/2017\/03\/24\/6f0246fe-10cd-11e7-ab07-07d9f521f6b5_story.html\">child-trafficking ring<\/a> from the back of a pizza parlor, that Donald Trump <a href=\"https:\/\/www.pbs.org\/wgbh\/frontline\/article\/what-conspiracy-theorist-alex-jones-said-in-the-lead-up-to-the-capitol-riot\/\">won the 2020 election<\/a>, and that <a href=\"https:\/\/www.nytimes.com\/video\/us\/politics\/100000006070750\/inside-alex-joness-tangy-tangerine-fueled-empire.html\">Tangy Tangerine<\/a> supplements made him lose 37 pounds in two months. The thing is, when Jones\u2019 ex-wife was suing him for custody of their children, because, reportedly, she didn\u2019t want them around someone who tells ardent followers he wants to <a href=\"https:\/\/www.thewrap.com\/alex-jones-challenges-alec-baldwin-bare-knuckle-fight-will-break-nose-video\/\">break people\u2019s necks<\/a>, or have women sexually assaulted, or lawyers\u2019 heads brought to him <a href=\"https:\/\/www.courant.com\/breaking-news\/hc-br-sandy-hook-lawsuit-alex-jones-hearing-20211115-ccie6kyugrcenm5pjrje7xswk4-story.html\">on a pike<\/a>, Jones\u2019 <a href=\"https:\/\/www.nbcnews.com\/news\/us-news\/not-fake-news-infowars-alex-jones-performance-artist-n747491\">defense<\/a> was that he is just playing a character. Nobody is supposed to believe what he says. Asking Jones to account for things he says, his lawyers assert, is like judging Jack Nicholson by his depiction of the Joker in <i>Batman<\/i>.<\/p>\n<p>Well, Jones\u2019 most recent court loss is around those claims that the 2012 Connecticut shooting that killed 20 first graders and six educators was a government plot to take away American guns, and that grieving parents were paid actors in the scheme. It\u2019s that case, and what it leaves unresolved, that our guest is here to discuss.<\/p>\n<p>Enrique Armijo is a law professor at Elon University, as well as an affiliate fellow of the Yale Law School Information Society Project. He joins us now by phone from North Carolina. Welcome to <b>CounterSpin<\/b>, Enrique Armijo.<\/p>\n<p><b>Enrique Armijo: <\/b>Thanks for having me, Janine.<\/p>\n<div id=\"attachment_9024963\" style=\"width: 360px\" class=\"wp-caption alignright\"><img aria-describedby=\"caption-attachment-9024963\" loading=\"lazy\" class=\"wp-image-9024963\" src=\"https:\/\/fair.org\/wp-content\/uploads\/2021\/11\/Alex-Jones.png\" alt=\"Alex Jones\" width=\"350\" height=\"197\" srcset=\"https:\/\/fair.org\/wp-content\/uploads\/2021\/11\/Alex-Jones.png 575w, https:\/\/fair.org\/wp-content\/uploads\/2021\/11\/Alex-Jones-300x169.png 300w\" sizes=\"(max-width: 350px) 100vw, 350px\" \/><p id=\"caption-attachment-9024963\" class=\"wp-caption-text\"><em><strong>InfoWars<\/strong>&#8216; Alex Jones<\/em><\/p><\/div>\n<p><b>JJ: <\/b>This judgment from Connecticut, which is similar to previous ones around Jones\u2019 shtick around the Sandy Hook massacre, it was a &#8220;default judgment.&#8221; What does that mean, and what doesn\u2019t that mean?<\/p>\n<p><b>EA: <\/b>What it basically means is that the reason that Alex Jones has, in effect, for purposes of this trial, been found to be liable is not because his legal arguments were considered on their merits and rejected, but rather that he just refused to defend himself against these state law claims, brought against him in Connecticut and Texas by the Sandy Hook parents for\u2014the claim is of defamation.<\/p>\n<p>So what that means is that the juries in these cases are now simply going to go on and decide damages, that is, the degree to which Alex Jones\u2019 statements harmed the reputations and caused emotional distress for these families. What it doesn\u2019t mean, as I said, is that there have been conclusive rulings at the state court level, or really the United States Supreme Court level, with respect to the First Amendment, regarding some of the First Amendment issues that would have been at issue in this case had it been litigated on the merits.<\/p>\n<p><b>JJ: <\/b>Yeah, it seems important that his actions are self-protective, in a way. Like, by just not participating, he preserves his ability in the minds of some to say, \u201cI never had my day in court,\u201d and at the same time to say, \u201cI refused to participate in this corrupt system,\u201d which of course is going to be part of his rhetoric.<\/p>\n<p>But in your <a href=\"https:\/\/theconversation.com\/alex-jones-loses-sandy-hook-case-but-important-defamation-issues-remain-unresolved-171914\">piece<\/a> for <b>The<\/b> <b>Conversation<\/b> that explores this, you talk about how this sort of defamation claim might have been seen differently by courts, even up to the 1950s. So what\u2019s changed?<\/p>\n<p><b>EA: <\/b>Prior to the 1950s, and prior really to the United States Supreme Court\u2019s intervention into state law defamation claims\u2014basically, allegations that a speaker has said something that\u2019s false, and that negatively affects the reputation of the subject of that statement, and which has caused the subject of the statement damages that are compensable in state court.<\/p>\n<p>Basically, prior to the constitutionalization by the United States Supreme Court of these state law claims, plaintiffs like the Sandy Hook parents would have simply had to show that the statement was about them, and that it caused them some harm, and that there was some minor (what\u2019s known in the law of defamation as) degree of fault, where basically the statement was made by the speaker defendant without any kind of reasonable investigation, or whether or not the statement was actually true.<\/p>\n<p>So what happened in a case that I talk about, a very famous case called <a href=\"https:\/\/www.oyez.org\/cases\/1963\/39\"><b><i>New York Times<\/i><\/b><i> v. Sullivan<\/i><\/a>, is that the United States Supreme Court basically said, because of the First Amendment, people should be freer to speak about public officials, including the possibility that some of the statements that they make about public officials might be false. So we had to protect these kinds of statements, even false statements, by saying that the plaintiff in these cases\u2014in other words, public officials who thought they were defamed by other people\u2019s statements\u2014would have to show what\u2019s known as actual malice. What that means is that the speaker had to have made the false statement either knowing that it was false, or with reckless disregard as to whether or not it was true.<\/p>\n<p>So the <b><i>New York Times<\/i><\/b><i> v. Sullivan<\/i> was a case brought by a police commissioner in Alabama against the <b>New York Times<\/b>. And in later cases, as I go through in some detail in the piece, this idea that it should be harder for public officials to show defamation, because the First Amendment wants to encourage people to talk about public officials without risk of being held liable, that was extended to not just public officials\u2014and the case basically means elected officials or individuals in very high levels of government\u2014 but also what the Supreme Court called public figures.<\/p>\n<p>So these are folks that are not elected officials, they\u2019re not servants in government. But they\u2019re otherwise notable, in a way that the First Amendment should permit discussion about them. And the Supreme Court essentially applied a degree of fault to public officials from the <i>Sullivan<\/i> case to public figures in a series of cases. And public figures, essentially in many instances, are otherwise private people. So the idea that it would be harder to show defamation extended to private people who were for purposes of litigation what\u2019s known as limited purpose public figures.<\/p>\n<p><b>JJ: <\/b>Which is an odd sort of thing. It\u2019s like you came into the news, so now you are a limited purpose public figure. And that\u2019s <a href=\"https:\/\/www.oyez.org\/cases\/1973\/72-617\"><i>Gertz v. Welch<\/i><\/a> that you\u2019re talking about. How did that change things in that way?<\/p>\n<p><b>EA: <\/b>Exactly. So in other words, if you were a person who had inserted yourself into a controversy, in the <i>Gertz <\/i>case, the Supreme Court said that it should be harder for you to show that someone else has defamed you, because, again, there\u2019s a First Amendment interest in talking about the controversy.<\/p>\n<p>And one of those justifications, in saying that it should be harder for public figures to show defamation is, as you just said, that the public figure has the opportunity to protect their own reputation. So in other words, if I\u2019m a public figure and I\u2019m defamed, and I want to rebut that defamation, people will listen to me, right? There will be an audience for my self-help. And also, and I think this is the issue in the Jones case that I talk about, the fact that I voluntarily inserted myself into a controversy essentially means that I have assumed the risk of potential defamation when other people talk about that controversy, including my role in that controversy.<\/p>\n<p><b>JJ: <\/b>We can see why this is very much a live and thorny issue. And there is the role of the internet, which, as you indicate in the piece, has changed defamation laws, as you\u2019re starting to talk about, has changed that idea that folks have a platform to speak back against defamation. And yet we still have the law, and harm is still done. So how does that bring us back to Alex Jones?<\/p>\n<div id=\"attachment_9025144\" style=\"width: 360px\" class=\"wp-caption alignright\"><img aria-describedby=\"caption-attachment-9025144\" loading=\"lazy\" class=\" wp-image-9025144\" src=\"https:\/\/fair.org\/wp-content\/uploads\/2021\/12\/Enrique-Armijo-Portrait.jpg\" alt=\"Enrique Armijo\" width=\"350\" height=\"438\" srcset=\"https:\/\/fair.org\/wp-content\/uploads\/2021\/12\/Enrique-Armijo-Portrait.jpg 600w, https:\/\/fair.org\/wp-content\/uploads\/2021\/12\/Enrique-Armijo-Portrait-240x300.jpg 240w\" sizes=\"(max-width: 350px) 100vw, 350px\" \/><p id=\"caption-attachment-9025144\" class=\"wp-caption-text\"><em>Enrique Armijo: &#8220;The internet has really changed the distinction between public and private&#8230;to make it much easier that someone is a public figure.&#8221;<\/em><\/p><\/div>\n<p><b>EA: <\/b>The legal issues in the case, as brought by the parents, were initially being litigated. And one issue to litigate, initially, is basically Alex Jones, and other folks involved with <b>InfoWars<\/b>, their state of mind with respect to these statements that they were making about the parents. And what Alex Jones was arguing is that the parents essentially had to show that Alex Jones made the statements knowing that they were false, because the parents had injected themselves into this controversy about gun rights, and that in one case they were advocating about stricter gun laws in the United States in the wake of the Sandy Hook shooting.<\/p>\n<p>And what I try to get at in the piece is that that is a very dangerous argument for defendants in defamation cases to make, because, as you said, the internet has really changed the distinction between public and private. And one of the things that it\u2019s done with respect to defamation law is to make it much easier that someone is a public figure, right?<\/p>\n<p>So in other words, if you put something on the internet, if you make an argument on the internet, and then someone defames you, the person that defames you is going to basically say that you\u2019ve inserted yourself in the controversy. Now I can say anything about you and not be sued for it, unless you can show that I knew it was false. And, obviously, state of mind is hard to prove, right? So as you said at the beginning, Alex Jones and these types of folks\u2019 modus operandi is to say, \u201cI\u2019m just raising questions. I don\u2019t know what\u2019s true or false.\u201d You know, to use the quintessential Donald Trump term, \u201cPeople are saying this. I\u2019m not saying it, but people are saying it.\u201d<\/p>\n<p>So once you get into this very rigorous requirement that you have to basically show that someone knew the defamatory statement was false, or acted with what\u2019s known as reckless disregard as to whether or not it was true, by making it easier to argue folks are public figures, you\u2019ve also made it much more difficult for people who claim that they\u2019re still private people to successfully sue for defamation.<\/p>\n<p><b>JJ: <\/b>And I just want to end on that note, that it\u2019s being presented, and can be presented, as just media mouthiness, and we can\u2019t lose sight of the fact that there are people impacted here. And in the piece, you say that one of the impacts, one of the effects of making individuals prove actual malice against someone like Jones, would encourage families, for example, to take the tragedies that happen to them and swallow them silently.<\/p>\n<p>So once again, when we talk about the First Amendment, when we talk about speech, we often talk about the speaker. And we have to also keep in mind the chilling effect, and the effect on other people when they are not allowed to hear things, &#8217;cause people are scared to say them.<\/p>\n<p><b>EA: <\/b>And that\u2019s really the fear that I express in the piece with respect to this issue, is that I don\u2019t think\u2014I certainly wouldn\u2019t want, and I don\u2019t think any fair-minded person would want, a parent who has suffered this kind of tragedy to be thinking about preserving their right to sue someone for defamation later, if they decided that one of the things they wanted to do with that grief is try to make sure the incident didn\u2019t happen again.<\/p>\n<p>I think what would happen is if the Alex Jones side of this argument would win, these parents, rather than speaking out and trying to prevent other school shootings, they would think, well, I want to remain private. I want to protect my own reputation. And there\u2019s a real First Amendment loss to that, because we don\u2019t get to hear from people who really have the most important things to say about these tragic events, and how to potentially prevent them in the future.<\/p>\n<p><b>JJ: <\/b>We\u2019ve been speaking with Enrique Armijo, professor of law at Elon University. His <a href=\"https:\/\/theconversation.com\/alex-jones-loses-sandy-hook-case-but-important-defamation-issues-remain-unresolved-171914\">article<\/a>, \u201cAlex Jones Loses Sandy Hook Case, but Important Defamation Issues Remain Unresolved,\u201d can be found at <a href=\"https:\/\/theconversation.com\/us\"><b>TheConversation.com<\/b><\/a>. Enrique Armijo, thank you so much for joining us this week on <b>CounterSpin<\/b>.<\/p>\n<p><b>EA: <\/b>Thank you.<\/p>\n<p>The post <a rel=\"nofollow\" href=\"https:\/\/fair.org\/home\/now-i-can-say-anything-about-you-and-not-be-sued-for-it\/\">&#8216;Now I Can Say Anything About You and Not Be Sued for It&#8217;<\/a> appeared first on <a rel=\"nofollow\" href=\"https:\/\/fair.org\/\">FAIR<\/a>.<\/p>\n\n<p class=\"syndicated-attribution\">This post was originally published on <a href=\"https:\/\/fair.org\/home\/now-i-can-say-anything-about-you-and-not-be-sued-for-it\/\">FAIR<\/a>. <\/p>","protected":false},"excerpt":{"rendered":"<p>&#8220;The internet has really changed the distinction between public and private&#8230;to make it much easier that someone is a public figure.&#8221;<\/p>\n<p>The post <a rel=\"nofollow\" href=\"https:\/\/fair.org\/home\/now-i-can-say-anything-about-you-and-not-be-sued-for-it\/\">\u2018Now I Can Say Anything About You and Not Be Sued for It\u2019<\/a> appeared first on <a rel=\"nofollow\" href=\"https:\/\/fair.org\/\">FAIR<\/a>.<\/p>\n","protected":false},"author":1415,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[4409,259,1348,8317,640,260,262,263],"tags":[],"_links":{"self":[{"href":"https:\/\/radiofree.asia\/wp-json\/wp\/v2\/posts\/415409"}],"collection":[{"href":"https:\/\/radiofree.asia\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/radiofree.asia\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/radiofree.asia\/wp-json\/wp\/v2\/users\/1415"}],"replies":[{"embeddable":true,"href":"https:\/\/radiofree.asia\/wp-json\/wp\/v2\/comments?post=415409"}],"version-history":[{"count":7,"href":"https:\/\/radiofree.asia\/wp-json\/wp\/v2\/posts\/415409\/revisions"}],"predecessor-version":[{"id":427426,"href":"https:\/\/radiofree.asia\/wp-json\/wp\/v2\/posts\/415409\/revisions\/427426"}],"wp:attachment":[{"href":"https:\/\/radiofree.asia\/wp-json\/wp\/v2\/media?parent=415409"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/radiofree.asia\/wp-json\/wp\/v2\/categories?post=415409"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/radiofree.asia\/wp-json\/wp\/v2\/tags?post=415409"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}