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The jury’s ruling could slow the spread of baseless conspiracy theories in the future, experts believe, but it could also have “a chilling effect” for legitimate news sources.
Experts say that the jury’s ruling could have a far-reaching impact on First Amendment law and on the future of journalism in the United States.
“It’s really a question of whether defamation will even really exist in the age of conspiracy theories and ‘anything goes’ on the internet,” said Hartford attorney Alex Taubes. “There’s a real question here with this case of, is there anywhere that facts matter? As lawyers, we care about facts. So, do facts matter? If Mr. Jones is not held fully liable for the harm he’s inflicted on our communities, then facts don’t really matter, do they?”
As the parents’ lead attorney Mark Bankston, speaking to the jury during opening arguments on Tuesday, explained, the judge already ruled that Jones and his company, Free Speech Systems, did defame Heslin and Lewis, and intentionally inflict emotional distress.
Although the jury is being asked to decide on an award, its ruling will still have bearing on First Amendment litigation.
“One of the oldest rules we have as a society is do not bear false witness against people,” Bankston said. “You are not here to decide that all this happened. You are not here to decide whether Mr. Jones is responsible. This also has nothing to do with the Constitution, because defamation is not protected by freedom of speech.”
At this point Jones, sitting between his attorneys at a table in between Bankston and the jury, became visibly agitated.
“False statements of fact are particularly valueless and interfere with the truth-seeking function within the marketplace of ideas,” Bankston continued. “We do not protect lies. Speech is free but lies you have to pay for.”
The jury must decide how much the parents are owed in in compensatory damages for intentional infliction of emotional distress, both in the past and in the future. For Heslin, the jury will also determine how much he is owed for damage to reputation and mental anguish, both past and future.
Proving someone intentionally caused emotional distress is challenging, Taubes said.
“It’s very difficult to show what a person is believing inside of their head. That’s something that courts and struggle with all the time,” he said.
Over the first week of arguments, lawyers for the family sought to show that Jones’ intention is to sell products, and is willing to say anything to do so, regardless of the truth.
Jones’ defense team argued that Jones might reasonably have questioned the official narrative and, therefore, any emotional distress could not have been intentional. The goal of Jones and Infowars was to ask questions, not draw conclusions, they argued.
To that end, attorney Andino Reynal questioned Daniel Jewiss, who had been the Connecticut State Police’s lead investigator in the case, about the difficulty of preserving evidence at the scene, specifically whether or not he knew that Heslin had access to his son’s body. The false claim that Heslin did not hold his son after the boy died has been a significant part of the case.
Richard Roth, a New York attorney who is representing a client accusing a Westchester-based newspaper of defamation, said Andino’s argument won’t hold water for the jury.
“We don’t live in a world anymore where you don’t know what happened,” he said. “You can say whatever you want in this wonderful world because there’s a First Amendment right. And that’s a wonderful thing. But that doesn’t mean there’s not someone who hasn’t been damaged by those statements.”
This is a civil trial, so the plaintiffs do not have to prove the facts of the case “beyond a reasonable doubt.”
Instead, as Roth explained, the standard is “the preponderance of the evidence.” All plaintiffs have to do is “tip the scales” though, even so, “legally the burden to prove intentional infliction of emotional stress is not easy.”
“It’s a high burden, so I’m not sure if they’ll meet it. They may,” Roth said. “But I think that defense is really lacking.”
Jones arrived at court on the first day of trial wearing duct tape over his mouth, bearing the words “Save the 1st.” Though publicly Jones is suggesting he is defending freedom of speech, in court his lawyers have claimed that he and his employees made a mistake in claiming that Sandy Hook was “a hoax,” a mistake for which they are sorry.
“Alex Jones has apologized repeatedly for the coverage he gave” to the so-called ‘truther’ community, Reynal said. “He trusted people he shouldn’t have trusted.”
“He regrets that now, and he has said so,” Reynal told the jury. “He was looking at the world through dirty glasses, and if you look at the world through dirty glasses, everything is dirty.”
That argument, according to Taubes, won’t be effective.
“What Alex Jones is doing gives freedom of speech a bad name,” he said. “Just because you’re using your mouth doesn’t mean that it’s OK.”
The case is one of several being litigated, Taubes said, that could draw a line in the sand for people who proliferate conspiracy theories for their own gain.
“The lawyers for the families have done a lot of groundwork to show that it wasn’t facts that Mr. Jones was questioning, it was how much money he could make exploiting a situation for his own benefit, regardless of who got hurt along the way. That’s really what this is about,” he said. “The mistake theory, I think, is going to be debunked. Just like all of his conspiracy theories got debunked.”
News versus infotainment
Another point of contention over the first week of arguments was the nature of Infowars, specifically whether or not Infowars is a news source. Plaintiffs attempted to cast Infowars as a hub for conspiracy theorists, offering a platform to “unhinged” contributors and amplifying their claims.
The defense argued that Infowars is a news source, like many others.
The jury’s decision will have an impact on journalists and journalism, according to Rich Hanley, Quinnipiac University associate journalism professor.
“The impact of this lawsuit is going to ripple throughout the media ecosystem,” he said. It could have “a chilling effect on traditional reporting.”
A witness, Infowars producer Daria Karpova, was asked by a juror if the show was a legitimate news source or infotainment. She replied that it was neither. Perhaps anticipating that response, the juror then asked, if the answer was neither, would Karpova admit that Infowars is not a trustworthy source of information?
Karpova replied, “I would not say that.”
Another witness, Infowars host Owen Shroyer (who is also facing charges related to the Jan. 6, 2021, attack on the U.S. Capitol) was asked if he was a journalist, and then asked if he was a conspiracy theorist.
To both questions, Shroyer answered, “Sometimes.”
The job of journalists, Hanley said, is “professionally reporting news, not propagating baseless conspiracy theories.” But the average news consumer might not see daylight in between Shroyer and a real journalist.
“The information consumer of the 21st century will focus on new sources that conform to their existing biases and perspectives of the world,” Hanley said. “So, a person who’s interested in conspiracy theories, for whatever reason, will tend to listen to or watch Infowars as opposed to reading The New York Times, or the [Stamford] Advocate or Connecticut Post.”
The impact of the Alex Jones defamation damages trial could therefore be twofold, Hanley said — both a blurring of those distinctions and an increase in litigation against trusted, legitimate news sources.
“It will set a contemporary legal precedent, given the shape of media in 2022,” he said. “It’s so much easier to cause harm now because of how easily information spreads and how quickly it can reach a lot of people. But you still have to prove it.”
But Roth believes the “chilling effect” will only be to force news sources to check facts more carefully, to guarantee their accuracy.
“I don’t think that something like this is going to prevent reporters and publishers and networks from publishing the news. They just have to make sure that it’s accurate,” he said.
The end result, he said, will be that sites like Infowars will find it more difficult to thrive.
“I think the chilling effect is not in any way limiting or constraining the First Amendment,” Roth said. “It’s just making sure that those reporters get it right, and people like this will hopefully — I’m not sure if it’s ever going to happen, but hopefully — be weeded out of the industry.”
Reporters Rob Ryser and John Moritz contributed to this story.