Within hours of Alex Jones and Infowars providing thousands of emails to lawyers for the plaintiffs in a lawsuit brought by surviving family members of the mass shooting at the Sandy Hook Elementary School in Newtown, Connecticut, in 2012, the Huffington Post contacted Mr. Jones. We have your emails, they said. We’re going to publish them. Do you want to comment?
And when lawyers for Mr. Jones went to court in Connecticut this week, NPR read the pleadings filed by the plaintiffs before Mr. Jones had a chance to do so. NPR didn’t call to ask for comment. It just read the plaintiffs’s pleading and ran with it as breaking news.
Just who leaked this material to the press in an effort to keep the press at Mr. Jones’s throat isn’t clear, even if no one will admit to having done so. Indeed, one of the law firms involved in this litigation regularly holds press conferences, replete with a blue background for a stage worthy of the Academy Awards, the firm’s name blazoned on the screen for all to see, no matter what is being said.
There is no mob quite so dangerous as a self-righteous mob, and, believe me, there’s a mob of would-be censors ready to limit free speech in the name of what makes them comfortable.
And then there is Senator Chris Murphy of Connecticut. Did a father of one of the Newtown child victims commit suicide this week? It's Alex Jones’s fault, the Senator said, before any facts were known. Murphy’s a one-trick pony, having ridden the Sandy Hook shootings all the way from obscurity to the U.S. Senate.
It’s open season on Alex Jones. He’s unpopular, and the forces of righteousness are aligned against him. Mr. Jones’s speech, we are told, is toxic. It must be stopped. Google, YouTube, Facebook, Twitter have de-platformed Mr. Jones.
But still Mr. Jones and Infowar continue to broadcast.
What’s all this about?
It’s about the marketplace of ideas. What critics of Mr. Jones fail to realize is that ideas matter. People listen to Mr. Jones because he provides them with a forum. Some of the things folks say to Mr. Jones, some of the things Mr. Jones says, make folks uncomfortable. No one is forced to listen to Mr. Jones. No one is forced to watch InfoWars. People do so because they find something they need there.
Rather than attacking the messenger, folks ought to ask what forces in American life make the message appealing.
I represent Mr. Jones and InfoWars in Connecticut lawsuits brought by surviving family members of victims in Sandy Hook. A separate suit is filed by surviving family members in Texas. Both suits are based on the premise Mr. Jones spread the opinion that Sandy Hook never happened. That crisis actors played roles to create mass hysteria. That the government benefits from this hysteria by making it easier to do such things as limit the right to bear arms.
This is an outlandish form an old genre in American life – the conspiracy theory. Indeed, the Connecticut complaints against Mr. Jones read in part like an undergraduate term paper, replete with a footnote to Richard Hofstadter’s The Paranoid Style in American Politics, published in 1964. The plaintiffs’s lawyers don’t realize that Hofstadter is Exhibit A in Mr. Jones’s defense – conspiracy theory is old news in American life. Doubt it? Look at the back of a dollar bill and try to explain all the symbolism on it.
I’ll leave to the courtroom battle the case involving Mr. Jones. Among the questions to be addressed in that case: Did Mr. Jones host others on a talk show who called Sandy Hook a hoax? If so, isn’t that protected speech? Did Mr. Jones entertain the possibility that it was a hoax, after listening to guests on his show? If so, isn’t that protected speech? Did some people who viewed Mr. Jones’s broadcasts then harass surviving family members of Sandy Hook? If so, what strained theory of causation makes that the fault of Mr. Jones? And if Mr. Jones did believe the shooting was a hoax, how is that different from believing the government killed JFK?
And then there is the central question: How many of the allegations now hurled causally at Mr. Jones are about things he actually said? Some of the allegations now have the status of urban legend. Mr. Jones has become a cipher, a symbol for the hatred of the self-righteous.
There was a time when victims of the horrific were honored, pitied, and provided the time and space they needed for respectable grief. Today victims become instant celebrities and props for the political interests of others. Enterprising victims become spokespersons and public figures. We’ve weaponized pathos. It’s small wonder the misused victims feel even more crushing despair when the glare of sympathy is redirected to newer, more fashionable and au courant victims.
We used to say that no person could be a judge in their own case. Now we flock to the aggrieved to let them pass judgment on the rest of us. Is it any wonder our politics is rudderless and empty suits like Chris Murphy can ride a national tragedy to national office?
I’ve taken to watching Infowars as I prepare to defend Mr. Jones and his companies. Here’s what I have learned thus far – people watch the show, and then call in to the show, to be heard. Mr. Jones listens. He is a far more reasonable listener than many of the callers. Where will these callers go if censors succeed in silencing Infowars?
One theory of freedom of speech is that it serves the purpose of finding the truth by testing ideas in the marketplace of ideas. Hence, the antidote to hateful speech is not enforced silence, but more speech. “If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the process of education, the remedy to be applied is more speech, not enforced silence,” The Supreme Court wrote in Whitney v. California, a 1927 decision upholding the right of a Communist to advocate overthrow of the United States government. The same rationale led the American Civil Liberties Union to defend the right of Nazis to march in Skokie, Illinois, through a community of holocaust survivors.
ACLU has retreated today behind a barrier of cowardice, preferring comfortable conformity and solicitude for the censor to the risks that free speech imposes. We are all worse off as a result.
So keep an eye on the Huffington Post. Rest assured that the tongue-clucking editors will select the most outrageous emails they can find. Look! Their pieces will scream. Look at these outrageous ideas! Did the CIA really stage Sandy Hook!? They will ridicule. All this in support of some version of orthodoxy.
I am far less frightened by the cranky opinions of the village eccentric than I am by the demand of the censor. From social media comes the avalanche of hate, either from the left of the right -- not long ago I was labeled racist after posting a picture I thought funny; not one of those who were so quick to scorn me actually critically engaged in a discussion of what made a photo of beer bottles into a sign of racism. Politicians want more. They want limits on speech. On what can be said and how it can be said. You know where that leads, don’t you? To censorhip.
I can ignore the crank. I don’t have to watch Infowars or MSNBC. But the government official with a warrant is harder to ignore. To the government I must yield my liberty, even my life. The government scares me in a way Alex Jones never will.
I expect to win the Alex Jones lawsuit. Not because his speech is popular – it is not in the communities close to Sandy Hook. I expect to win it because there is a long history of freedom of expression, even of crazy conspiracy theories, in the United States. Mr. Jones isn’t an outlier. What’s changed is our political culture. Perhaps a goodly number of Americans are prepared to sacrifice the First Amendment on an altar of solicitude. I’m betting – and hoping -- that won’t happen in the case against Infowars, regardless of what the Huffington Post publishes in the days to come.
Pathos is a recognized form of rhetoric. Until today, it had little real place in the law. The Connecticut Supreme Court changed all that with a 4-3 ruling in a case involving guns and the victims of the horrific mass shooting at the Sandy Hook Elementary School in Newtown, Connecticut, in December 2014. The Court’s ruling in Soto v. Bushmaster is no doubt en route to the United States Supreme Court, where, I suspect, minds more disciplined and less steeped in pathos will reverse.
If you were alive, sentient and in Connecticut on the morning of December 14, 2014, you will remember what you were doing the moment you learned that 20 students and six adults were gunned down by Adam Lanza. I was awaiting a verdict in a murder case involving a shooting in the Eastern part of the state. It was a grim day. Death seemed everywhere.
The shooting, as such shootings do, became the fodder of our roiling debate about guns. Soon the victims’ families were instant objects of pity and sympathy. They rapidly became symbols, then martyrs, then spokesmen for those favoring more robust regulation of guns. Those who regard the Second Amendment as a divine license to arm one self to the teeth took a different tack – extremists took the view that Sandy Hook was a hoax.
Most of us stood aside and let the politics play itself out in legislative chambers.
It was perhaps inevitable than lawyers would weigh in. We always do. So plaintiffs’ lawyers signed a series of surviving families up for a challenge. Could gun manufacturers and those who sell them by held accountable for the deaths in Sandy Hook?
It appeared not, until today’s ruling.
As a general matter of federalism, two governments have jurisdiction over each of us whenever we are in the United States. A state government possesses power over our health, education and welfare – the so-called police powers. The federal government has a more limited reach, extending only so far as the Constitution gives it power – the so-called federal questions.
Drawing the line between police powers and federal questions is tricky work. How that line gets drawn is one of the dominant themes of jurisprudence since the early 20th century.
One doctrine lawyers use to draw this line is called “pre-emption.” When Congress enacts a law, that law federal pre-empts, or takes precedence over state law. Thus, a power once reserved to the states becomes a matter of federal law. (On a related note, when the Supreme Court interprets a federal constitutional question its ruling becomes the supreme law of the land, overriding contrary state laws. What makes the Roe v. Wade abortion decision controversial to constitutional lawyers is not the right it guarantees to have an abortion, but the troubling and obscure reasoning supporting the decision. Isn’t abortion a state law matter?)
In the gun cases, Congress, no doubt a captive of the gun lobby, passed a law in 2012, the Lawful Commerce in Arms Act, that granted gun makers and distributors immunity from law suits for illegal acts committed with firearms. This is an example of pre-emption, trumping traditional state legal doctrines establishing liability for folks who put things into the stream of commerce.
The gun case involving the Sandy Hook defendants was tossed from court when first filed. The trial court ruled that under the Lawful Commerce in Arms Act, the Sandy Hook plaintiffs simply could not bring an action under Connecticut law involving the death of their loved ones against gun makers and distributors.
Today’s Supreme Court ruling largely upheld that ruling with one important caveat – the Court held that the manufacturers might be held liable because of how they advertised and marketed their products. As the Court put it, the defendants are alleged to have engaged in:
"advertising and marketing the XM15-E2S [Weapon] in an unethical, oppressive, immoral, and unscrupulous manner that promoted illegal offensive use of the rifle. Specifically, they allege that the defendants:
"promoted use of the XM15-E2S for offensive, assaultive purposes— specifically, for ‘‘waging war and killing human beings’’—and not solely for self-defense, hunting, target practice, collection, or other legitimate civilian firearm uses
"extolled the militaristic qualities of the XM15- E2S
"advertised the XM15-E2S as a weapon that allows a single individual to force his multiple opponents to ‘‘bow down’’
"marketed and promoted the sale of the XM15- E2S with the expectation and intent that it would be transferred to family members and other unscreened, unsafe users after its purchase."
You’ll need a law degree and the patience of six saints to read through the Supreme Court’s tortured analysis of how this advertising escapes pre-emption. I do encourage you to read it, however. Implicit within it is a warning to makers of violent video games, films and works of fiction – pour gasoline on the smoldering rage of the loner and you just might get burned. Connecticut prefers a softer, kinder nanny state to the state required by the First Amendment.
Expect the losers in this case to take the case to United States Supreme Court, and expect that Court to reverse on pre-emption grounds. And against the remote possibility that the Connecticut Supreme Court’s tortured effort to escape pre-emption persuades the United States Supreme Court to uphold on statutory grounds, expect a First Amendment challenge. Is it really unlawful to market things using robust, even offensive speech? What’s #MeToo going to do with that the next time it sees an ad it thinks fosters “rape culture?” Is GIJoe a tool of toxic masculinity?
Horrible cases make horrible law. All of Connecticut was wounded when 26 innocents died in Sandy Hook. It moves us to pathos. But pathos makes for bad jurisprudence. The Supreme Court’s 4-3 decision in this case is an example of what happens when justice is tempted to play politics.