There is No Constitutional Value in False Statements
Free Speech, False Speech, and True Speech
views of law professors on First Amendment issues

The New York Times, By Alan Feuer, Aug. 7, 2018

Not long after several of the country’s biggest tech firms — namely Apple, Facebook and Google — kicked the conspiracy theorist Alex Jones off their various online platforms, Mr. Jones’s allies complained that he had been deprived of his First Amendment rights to free speech.

“Social media goes Gestapo!” wrote Bill Mitchell, a conservative Twitter personality with 366,000 followers, on Monday evening.

“The great censorship purge has truly begun,” warned Paul Joseph Watson, a contributor to Mr. Jones’s website, Infowars.

And in his own message on Twitter, one platform that hasn’t removed his content, Mr. Jones asked: “Now, who will stand against Tyranny and who will stand for free speech?”

The removal of Mr. Jones and Infowars came after months of mounting pressure on technology companies to tackle the spread of misinformation online. Mr. Jones and Infowars have for years used social media to push unfounded conspiracy theories. On Sunday, Apple removed five of the six Infowars podcasts on its popular Podcasts app and by Monday Facebook and Google’s YouTube had followed with similar measures.

But this isn’t the only effort to stop Mr. Jones from spreading his theories. He also faces multiple defamation claims, and well before Monday’s moves, several scholars of free speech had already concluded that many of the things he has said online were not in fact protected by the First Amendment.

In a recent court filing, four law professors who specialize in free-speech issues said that Mr. Jones’s oeuvre was riddled with “absurd conspiracy theories” and urged a federal judge considering a lawsuit against him not to let him hide behind the First Amendment while publishing his rhetoric.

“False speech does not serve the public interest the way that true speech does,” the scholars wrote. “And indeed, there is no constitutional value in false statements of fact.”

The filing — an amicus, or friend of the court, brief — was submitted in June in the case of Brennan Gilmore, a former State Department official and Democratic Party activist who attended last summer’s violent far-right rally in Charlottesville, Va. Mr. Gilmore, 39, was on the street on Aug. 12 when James Alex Fields Jr. drove his car into a crowd of protesters, killing a woman, Heather Heyer, and injuring several others.

After Mr. Gilmore posted a video of the episode online and spoke about it repeatedly to the media, Mr. Jones published his own video on Infowars, accusing him in a rambling jeremiad of being a plant from the Central Intelligence Agency employed by the billionaire George Soros.

In a breathless moment (“I mean, it’s like, whoa, whoa — C.I.A.?”), Mr. Jones went on to suggest that Mr. Gilmore may have been involved in the attack on Ms. Heyer to bring about what he described as “the downfall of Trump.”

In March, Mr. Gilmore sued Mr. Jones for defamation, arguing that he had suffered threats and harassment because of the report.

Mr. Jones is also facing defamation lawsuits filed by the parents of victims of the Sandy Hook school shooting in Connecticut for claiming the attack was an elaborate hoax. But the Gilmore suit is the first against Mr. Jones in which a judge, Norman K. Moon of Federal District Court in Charlottesville, has directly sought the opinion of First Amendment scholars.

In defending himself, Mr. Jones has claimed in court papers that his allegations concerning Mr. Gilmore were “opinion, not statements of fact” and that Infowars is a “freewheeling” website, “in which hyperbole and diatribe reign as the preferred tools of discourse.” His viewers, Mr. Jones maintained, “expect an interview or monologue to be more free-flowing and opinionated and less precise in its use of language than an article or a book.”

While they acknowledged that the protection of speech is “a priority of the first order,” the First Amendment scholars, from institutions like Rutgers University and the University of Chicago Law School, noted that since the Middle Ages defamation law has created “social boundaries about what speech is and is not acceptable.” It has also, they wrote, long sought to balance the freedom of expression with the safeguarding of people’s reputations.

To do this, the scholars said, defamation statutes have always restricted some speech — especially for private figures like Mr. Gilmore, who have less of an ability than those like Mr. Jones with media platforms to “disseminate their own side of the story.”

The scholars were particularly scathing when it came to Mr. Jones’s contention that his videos on Infowars reflected nothing more than his beliefs. It would set a dangerous precedent, they said, if Judge Moon ruled on his behalf.

“It would allow unscrupulous news organizations to couch their language as ‘opinion’ and to mask their meaning with implication and insinuation,” the scholars wrote. That, they added, would leave “readers clear as to the message but avoiding all liability for defamatory remarks. This should not be allowed and, in fact, is not allowed.”

The law professors who signed the amicus brief were Lyrissa B. Lidsky, dean of the University of Missouri School of Law, Tamara R. Piety at the University of Tulsa College of Law, David A. Strauss from the University of Chicago Law School, and Carlos A. Ball of Rutgers.

The brief was also signed by Michael B. Hissam, a lawyer at the firm of Bailey & Glasser in Charleston, W.Va., who is amicus counsel for Mr. Gilmore, and Katharine M. Mapes and Katherine O’Konski, lawyers at the firm of Spiegel & McDiarmid in Washington.

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