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naraburns  nihil supernum  1yr ago (text post)   32870 thread views

Culture War Roundup for the week of October 10, 2022

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Alex Jones just lost a lawsuit for defamation for claiming that Sandy Hook was a hoax and the reward was $965bil (after a previous $50mil verdict so its over a billion) for defamation and emotional damages. Jones is a kook, and his claim was both false, and outrageous; but I'm not 100 percent sure he even should have lost. Esp for the emotional damage part. I don't think people should be entitled to damages because they feel hurt by what you say. As far as the defamation part if he claimed particular people created the hoax then I can understand a loss of a defamation lawsuit, but if its just a general comment along the lines of "I think it's a hoax" I don't think he should face any legal penalty for it. And a billion dollars for spouting off some nonsense seems ridiculous to me.

I suspect that he will appeal (I understand he tried to appeal the previous case all the way up to the Supreme Court, who refused to accept the case), and that the case won't be overturned on appeal, but perhaps the damages will be reduced.

There was also some talk about harassment and death threats against people suing Jones. If it can be proven that Jones was behind it I suppose that could be ground for a lawsuit (and perhaps even criminal charges depending on the details), but that would be a separate issue than defamation or emotional distress over the original comment.

Jones spent years scapegoating these families. Claiming they lied, that their children were fine. He combed over footage of grieving parents pointing out “acting.” This was broadcast to an enormous and enthusiastic audience, some of whom proceeded to threaten these Deep State shills.

It was a clear case of “communicating to a third party false statements about a person that result in damage to that person's reputation,” or defamation. Whether or not you think the corresponding legal penalties are appropriate, he has no defense.

If people were pissing on the grave of my murdered son, threatening to dig up an “empty” coffin, I think I’d have objections to the guy selling that narrative.

This makes me wonder if any Holocaust deniers ever been sued for this. Much less ordered to pay a billion dollars? This isn't a snarky rhetorical question--it seems like it would fit a very similar set of criteria to what you are describing here and I don't know the answer. The Holocaust was certainly worse than Sandy Hook, so I would think Jones's punishment would be less.

Holocaust deniers rarely accuse particular persons of lying. That was what exposed Jones to liability. The right to generally lie about history, or about anything, is well established in US law if it is not both knowing or reckless and causes harm. "Absent from those few categories where the law allows content-based regulation of speech is any general exception to the First Amendment for false statements. . . . These quotations [inplying less protection for falsehood] all derive from cases discussing defamation, fraud, or some other legally cognizable harm associated with a false statement, such as an invasion of privacy or the costs of vexatious litigation. . . . Even when considering some instances of defamation and fraud, moreover, the Court has been careful to instruct that falsity alone may not suffice to bring the speech outside the First Amendment. The statement must be a knowing or reckless falsehood. " United States v. Alvarez, 567 U.S. 709 (2012)

And, hurt feelings from disagreement with the content of the speech is not enough harm to remove the speech from constitutional protection. "Our fighting words cases have made clear, however, that such generalized reactions are not sufficient to strip expression of its constitutional protection. The mere fact that expressive activity causes hurt feelings, offense, or resentment does not render the expression unprotected." RAV v. St. Paul, 505 US 377, 414 (1992) [Overturning cross burning statute}. See also Virginia v. Black, 538 US 343 (2003) [Upholding conviction for cross burning done on the lawn of a black family with intent to intimidate, but overturning conviction for cross burning at Klan rally under statute that made the burning of a cross prima facie evidence of intent to intimidate]. And of course there was the famous Skokie case

In the mid-90s, David Irving tried to sue an author for libel after she wrote that he was "one of the most dangerous spokespersons for Holocaust denial." His suit was shot down since she was able to provide proof of his garbage scholarship.

A better example might be the Mermelstein suit, in which a Holocaust survivor sues the premier revisionist organization for breach of contract. In that case, the plaintiff got the promised $50k prize, plus a similar amount in damages. But it was the early 80s, and the IHR hadn't engaged in actual defamation (yet).

How would bad scholarship be relevant to him being a dangerous spokesperson for Holocaust denial?

Irving is one of the most dangerous spokespersons for Holocaust denial. Familiar with historical evidence, he bends it until it conforms with his ideological leanings and political agenda. A man who is convinced that Britain's great decline was accelerated by its decision to go to war with Germany, he is most facile at taking accurate information and shaping it to confirm his conclusions. A review of his recent book, Churchill's War, which appeared in New York Review of Books, accurately analyzed his practice of applying a double standard of evidence. He demands "absolute documentary proof" when it comes to proving the Germans guilty, but he relies on highly circumstantial evidence to condemn the Allies. This is an accurate description not only of Irving's tactics, but of those of deniers in general.

The first bit was just my choice to show relevance to the OP. She had more scholarly criticism elsewhere.

I don't understand. You said that his suit was shot down because she was able to provide proof of garbage scholarship. Is your assumption then that if Irving had ironclad proof that the Holocaust did not happen he would be considered less of a 'dangerous' holocaust denier?

There was more than one point of contention.

Finding instances where he used fake sources defended her claims that he was bending the truth. Claiming that he was a Hitler fanboy and Holocaust denier was pretty easy. I believe the defense for calling him dangerous was his association with violent neo-Nazi groups.

But I suppose you’re welcome to check the actual judgment. Paragraphs 2.10 and 2.15 had the specific claims.

You're not answering the point relevant to what you yourself wrote. You said that his suit was shot down because she was able to provide proof of garbage scholarship. Is your assumption then that if Irving had ironclad proof that the Holocaust did not happen he would be considered less of a 'dangerous' holocaust denier?

I fail to see what light the court judgment would shed on your own statements.

More comments

Yes, they have. Almost exclusively in Europe but now in Canada as well since Holocaust denial was outlawed just this year. This lawsuit may portend the beginning of similar lawsuits against Holocaust deniers in the United States.

This is my biggest concern from the Jones trial. The billion in damages potentially anchors future juries and courts on what is essentially a political reprisal. In a world where a billion in damages is considered justice, it's easy to image a world were a million dollar in damages is demanded from a Holocaust denier.

Probably the most relevant example is the various organizations and individual literary scholars who have questioned the authenticity of the Anne Frank diaries - many have been successfully sued by Otto Frank and the Anne Frank House for defamation abroad.

Historically, in the United States, Revisionists have been able to get away with questioning the authenticity of the Anne Frank diaries. But with a billion in damages against Jones, it won't be surprising to see the Holocaust industry emboldened to bring civil lawsuits against Holocaust deniers for questioning the Anne Frank story.

It so happens that in August, Revisionists published another work on the Anne Frank diaries which I am reading now. Maybe I'll write a review, it's an interesting controversy.

It wouldn't surprise me if in the future we see lawsuits against Revisionists.

As for me, I would certainly satisfy the standards of @KnotGoel (if I had reach). There are famous survivors and witnesses I would call major liars - like Irene Zisblatt who featured prominently in Steven Spielberg's film The Last Days.

There is no way in 1000 years that someone can be successfully sued in the US for simply claiming that the Ann Frank diaries are not authentic, unless they target a particular person and claim that he or she faked them. And even then, any damages that person would suffer would be likely be relatively low.

Of course, if someone aids and abets a campaign of harassment against that person, that would be a different matter. But that is what takes it out of the realm of mere advocacy of an idea (the Holocaust didn't happen; the diary is fake; Sandy Hook was a hoax), which is protected speech, and into the realm of defamation or another tort.

Of course, if someone aids and abets a campaign of harassment against that person

What would this consist of, exactly? I think this is the area most ripe for attack. Under the theory of stocahastic terrorism, public criticism itself, however valid, could certainly be considered "aiding and abetting a campaign of public harassment."

There is no way in 1000 years that someone can be successfully sued in the US for simply claiming that the Ann Frank diaries are not authentic, unless they target a particular person and claim that he or she faked them.

"Defamation" (stating insufficiently contexualized facts) of a person dead for more than a millenium, is illegal in Austria.

  1. That is not a defamation case. It is a hate speech case.

  2. I specifically said "in the US."

  3. US courts will not enforce a foreign judgment imposing liability for speech protected in the US

$1 billion is enough so silence anyone , save for a multi-billionaire or a media conglomerate.

It would only be "a very similar set of criteria" if the Holocaust denier

  1. was not anonymous

  2. named specific victims and claimed they were lying

  3. had enough reach that those victims received threats from other people

  4. had enough reach that these victims knew about those particular instances of Holocaust denial

Has that ever happened? idk

had enough reach that those victims received threats from other people

But the threats don't have to have anything to do with the reach. Everything Alex Jones said about Sandy Hook came long after it was mainstream in conspiracy theory circles. The idea that those involved were actors didn't catch on because of Jones. It caught on because of that one Robbie Parker video from the day after the shooting where he comes across as suspicious, which has been incessently posted on /pol/ since it came out and supplemented with various additional coincidences. 4plebs doesn't go all the way back to the shooting but you can see the discussion back in December 2013:

http://archive.4plebs.org/pol/search/text/robbie%20parker/order/asc/page/1/

Meanwhile Alex Jones was claiming that the shooting happened but was a false-flag orchestated by the government. If we go by this Media Matters page he didn't start parroting the "actors" thing until 2014. It's hard to judge since obviously I obviously don't watch him myself but it doesn't even look like he talked about it much, the grassroots conspiracy-theorist interest was much greater. But nonetheless the legal system blames him for other conspiracy theorists because they share the same beliefs, without proving that he caused those beliefs.

Some guy in an online conspiracy theory site talking to a couple hundred like-minded zealots about how you are an actor and your alleged child never existed so couldn't have been shot is harmful, but if you never hear about it and none of the zealots try tracking you down, it's small harm.

Some guy with a radio show broadcast nationally, who has been sued several times for repeating these theories, and refuses to shut up but keeps going on about it, is a different matter.

"On April 16, 2018, Neil Heslin, father of victim Jesse Lewis, filed a defamation suit against Jones, Infowars and Free Speech Systems in Travis County, Texas. Later that day, Leonard Pozner and Veronique De La Rosa, parents of victim Noah Pozner, filed a defamation suit against them as well. Pozner, who has been forced to move several times to avoid harassment and death threats, was accused by Jones of being a crisis actor. Jones was found to be in contempt of court even before the trial started, failing to produce witnesses and materials relevant to the procedures. Consequently, Jones and Infowars were fined a total of $126,000 in October and December 2019."

If it is true that someone had to move several times because Jones fans/believers were harassing him, then Jones is responsible for not shutting the hell up.

but if you never hear about it and none of the zealots try tracking you down, it's small harm.

I'm not sure this is necessarily obvious. Can you really be harmed if you don't realize it?

If the victim feels no distress, what actually determines if someone has been harmed?

Except that the complaint alleged that it was all about the reach -- ie, that it was him, and not whatever else was going on in conspiracy theory circles, which caused the harm to the plaintiffs. Since he managed to fuck up his way to a default judgment, the allegations of the complaint were taken as true. So, those are the facts (or, if you prefer,, "facts") that were the basis of the damages.

I'm not sure how relevant that is. Whether those claims had been made before or not, Jones was still making those claims, and he brought them to vast new audiences that would not have been reached if they had just circulated among 4chan anons (a group that is harder to bring to court for defamation for reasons that should be obvious).

brought them to vast new audiences

Did he? How many people watch Alex Jones but aren't familiar enough with the conspiracy-theory community to have encountered an extremely popular conspiracy theory? And of course the grassroots conspiracy theorists had a lot more detail and arguments too, unlike Alex Jones vaguely referencing the claims that were already widespread. For that matter the first page of that 4plebs search in 2013 has a screenshot of Robbie Parker's former phone number, certainly not something Alex Jones shared and from before he even started referencing "actors". We hardly need Alex Jones to explain why he got harassing phone calls. Even if there's a significant audience of casual conspiracy-theorists who watch Alex Jones but aren't in contact with the rest of the conspiracy theory community, it seems like those would be the least likely to act on that information.

From what I can tell the modern conspiracy-theorist community is fundamentally very grassroots, a distributed effort to accumulate the sort of seemingly-convincing evidence and arguments described in The Pyramid and the Garden. Not that non-conspiracy-theorists are immune to this, most of them will accept similarly bad evidence under other circumstances, they're usually just using heuristics like "reject things called conspiracy theories by mainstream sources" which fail as soon as something true is called a conspiracy theory or a false conspiracy theory is treated seriously by the mainstream. E.g. I remember people on 4chan sometimes thinking posts they didn't like were "bots" even when this was technologically very implausible, and then years later I saw the habit of accusing opposing posters of being "Russian bots" on sites like Twitter and Reddit go mainstream. (Complete with popular ideas like "You can tell they're Russian bots because their usernames end with 8 numbers on Twitter" - of course the actual reason is because that's Twitter's format for suggested usernames.) Anyway, maybe the conspiracy-theorist community used to be more centralized but nowadays very few conspiracy theories originate or are even popularized by some identifiable leader, they're just networks of people who combine the same mistakes in reasoning most people make with a distrust of official sources.

a group that is harder to bring to court for defamation for reasons that should be obvious

Right. But it doesn't seem like you should get to legally treat the guy who happens to be the most prominent conspiracy-theorist as a scapegoat just because there's nobody else to sue. Defamation law doesn't have a mechanism to crack down on communities of people with mistaken ideas, and rightly so.

Yes to all this, but it's also important to mention that he lost by default because being an obstinate litigant and refusing to comply with discovery orders was his entire MO. We'll see how the collection and bankruptcy after-action ultimately play out, but I can't imagine anyone thinking this ever had a chance of working in his favor. MAYBE his efforts (setting aside their morality/legality) helped him shield some of his assets, but that was in exchange for abandoning the field to swallow the default judgment poison pill. Moreover, this also means that he had to functionally abandon any actually real defenses, such as anything remotely grounded in free speech protections. I would love to see an earnest steelman of why his cases sets a bad precedent, but as far as I can tell it largely falls along tribal lines.

If he thinks he cannot win, it probably does not help to aggressively fight it because that would cost him $ that would otherwise go to paying the judgement. It would also add to the plaintiff's legal bills (a default judgement is a lot cheaper than a long legal battle). A successful defense in a libel case would be to show that the Sandy Hook victims were in fact crisis actors or that no reasonable person would believe him (satire defense). The $1 billion seems arbitrarily and excessively punitive if you include medical bills and lost wages for every family member, which cannot possibly be anywhere close to $1 billion. It sets a precedent that anyone who is sufficiently and convincingly traumatized by speech can be awarded an arbitrarily large amount of money.

The $1 billion seems arbitrarily and excessively punitive if you include medical bills and lost wages for every family member, which cannot possibly be anywhere close to $1 billion.

But, damages for defamation have always included far more than medical bills and lost wages. 3 Restatement of Torts § 621, Comment a (1938) ("It is not necessary for the plaintiff [who is seeking general damages in an action for defamation] to prove any specific harm to his reputation or any other loss caused thereby"). And, damages for emotional distress are normal, not just in defamation cases, but in all intentional tort cases, if the defendant's behavior is egregious enough. See, eg, Molien v. Kaiser Foundation Hospitals, 27 Cal.3d 916, 927 (1980) ["intentional torts will support an award of damages for emotional distress alone, but only in cases involving 'extreme and outrageous intentional invasions of one's mental and emotional tranquility.'"].

It sets a precedent that anyone who is sufficiently and convincingly traumatized by speech can be awarded an arbitrarily large amount of money.

No, it doesn't, not unless 1) the award is not reduced by the court upon entry of judgment, which happens all the time; and 2) the award was actually arbitrary. You seem to assume that "large" = "arbitrary." But, without looking at the actual evidence before the jury, there is no way to determine whether it was arbitrary or not. The fact that the amount awarded to each plaintiff varied from 28 million to 120 million, is at least some evidence that the jury did not act arbitrarily.

Finally, it does not remotely create a precedent that anyone "traumatized by speech" can be awarded any compensation at all; rather it is merely the latest in 200+ years of precedent holding that someone harmed by** unprotected **speech, of which defamation is an obvious example, can be compensated.

You're incomplete. It this sets any precedent it's "anyone who is sufficiently and convincingly traumatized by speech can be awarded an arbitrarily large amount of money...provided they face a defendant who 100% gives up any semblance of legal defense and instead spends enormous resources trying to shield from liability as much of his multi-million dollar commercial enterprise as possible, by ineffectively trying to distribute it to family members and other antics."

The precedent it sets isn't a legal one, but a practical one. If you're on the right, you can be destroyed for any reason and the legal system will bend over backwards to do it. Your motions will be summarily denied and your appeals unheard. You will be denied your day in court based on procedural gotchas, your lawyers will be sanctioned for defending you, and you will be penalized well beyond your ability to withstand.

I thought we were talking about Alex Jones? I have no idea what your hypothetical has to do with his cases.

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