Defending The Indefensible
BROOKE GLADSTONE: From WNYC in New York, this is On the Media. I’m Brooke Gladstone.
BOB GARFIELD: And I'm Bob Garfield. This weekend marks one year since Heather Heyer was killed as she protested against a Unite the Right rally in Charlottesville, Virginia. As I record this, the city and state have declared a state of emergency, even though the organizer of last year's rally, White Supremacist Jason Kessler, says this year's version won't take place in Charlottesville.
MALE CORRESPONDENT: He argues that his First Amendment rights were violated when the city denied his permit application. Charlottesville rejected the application in December, saying the proposed event would present a danger to public safety.
MALE CORRESPONDENT: He abandoned the legal fight, then posted a message on Twitter saying they will be focusing exclusively on a rally outside the White House at Lafayette Park on August 12th.
BOB GARFIELD: Because we’re recording Friday afternoon, you know more now than we do about what transpired this weekend in DC. But whatever the facts on the ground, it is another clash between the First Amendment right to speak and those who take that right to its ugliest violent extreme.
Marc Randazza is a lawyer, not a First Amendment absolutist but pretty, pretty close. He’s represented fringe actors ranging from the political performance artist Vermin Supreme to the notorious Andrew Anglin, publisher of the neo-Nazi website Daily Stormer and others of that ilk. One of his newest clients and maybe his most high profile is conspiracy theorist and InfoWars host Alex Jones. Jones currently faces multiple lawsuits, including for defamation filed by family members of Sandy Hook shooting victims.
ALEX JONES: Sandy Hook used a synthetic, completely fake, with-actors, in my view, manufactured.
ALEX JONES: It took me about a year with Sandy Hook to come to grips with the fact that the whole thing was fake.
ALEX JONES: Because the media lies so much, you can’t ban free speech of people that are asking questions.
BOB GARFIELD: The parents say that five years after the shootings, they are still harassed and threatened by Jones’ followers. The parents of Noah Pozner, the youngest Sandy Hook victim, say they've had to move seven times and each time conspiracy theorists have published their address. Marc Randazza, welcome back to On the Media.
MARC RANDAZZA: Thank you.
BOB GARFIELD: Your clients are racist, liars, anti-Semites, slanderers. Why are you working for them?
MARC RANDAZZA: Well, I wouldn't say that that describes all of my clients. I get along pretty well with Vermin Supreme. You know, the Muslim American Women's Political Action Committee appreciates my pro bono service. You know, some of these people are perhaps not accurately portrayed in the media either. I would say that about Alex Jones. I may not politically agree with him but think of the absolute worst thing that anybody could possibly say, you need to, as an American, have a, have a knee-jerk reaction to want to protect that because if that can be limited, then they can get at any other speech.
I look at these people as speedbumps on a runway, where someone is charging toward Lady liberty and I want these speedbumps to be high, wide and damage the hell out of any vehicle that’s speeding toward her.
BOB GARFIELD: However, the First Amendment is in no way absolute, whether in government regulation, criminal cases or civil litigation.
MARC RANDAZZA: Sure.
BOB GARFIELD: Now, you think Alex Jones was mischaracterized as a conspiracy theorist, but this is a man who claims that the children murdered in the Sandy Hook episode were not, in fact, murdered, that they did not exist and that their supposed parents are crisis actors and they’re all part of a grand government conspiracy. And what has happened since then is these people have been terrorized by Alex Jones’ followers. It is just sick beyond words. It is not political speech. It is the intentional infliction of pain.
MARC RANDAZZA: [CLEARS THROAT] I’m gonna give you a, a 50 percent grade on that statement. The correct part is the First Amendment is not an absolute. I think your characterization that my client has caused actual harm is not true. His listeners have harassed these people. That's not him. I know that in the beginning he did question whether this event happened. He comes from a perspective of I will never trust our government. That doesn't make him a conspiracy theorist.
When the New York Times reported the official government line that Iraq had weapons of mass destruction, the New York Times failed to do its job as a member of the Fourth Estate by questioning that official narrative and, as a result, a nation is destroyed, millions of people are dead and an entire region of the world is destabilized. Now, I realize that young kids died --
BOB GARFIELD: You know what, I’m, I am going to stop you here because it’s preposterous. There were hundreds, hundreds of contemporaneous eyewitnesses to the Sandy Hook murders and very few of them were employees of any government, much less the federal government, presumably behind a conspiracy to have a false-flag operation.
MARC RANDAZZA: And did you meet any of them?
BOB GARFIELD: And the notion --
MARC RANDAZZA: Well, if you’re going to interrupt me, I’m gonna interrupt you, so if --
BOB GARFIELD: No, no, let me please go. The, the notion that there is an equivalence between that and --
MARC RANDAZZA: No, this is not [ ? ], sir. I am not gonna be treated that way in this interview. Understood?
BOB GARFIELD: Okay, go ahead, please continue and then I’ll ask questions sequentially. Go ahead.
MARC RANDAZZA: Yeah, that’s fine. All right, if he questioned the official narrative, he has a right to do that. I want people to do that. I thought it was preposterous to question whether or not this happened but a lot of people thought it was preposterous to question whether or not there were actually weapons of mass destruction in Iraq. I want to live in a country where someone can do that.
After initially questioning whether it happened or not, then he actually came on camera, said, I was wrong, this happened. Nobody wants to report on the fact that the guy went through some deliberative process and actually came to the opposite conclusion.
BOB GARFIELD: You know, if he has some late-discovered compassion for the Sandy Hook parents, if he’s been chastened somehow, you know, it's worth observing that back in February InfoWars shared a YouTube video claiming that David Hogg, who was one of the survivors of the Parkland shooting in Florida, is a “crisis actor,” in other words, exactly more of the same.
MARC RANDAZZA: Well, why can't you be an actual victim and a crisis actor? There's a crisis. They’re out there dealing with it in a theatrical way, in order to push the -- you know --
BOB GARFIELD: But that’s not what crisis actor means. Come on, Marc, it m -- it, it suggests an imposter, an event that never happened, that was portrayed to have happened by some conspiracy and that he is not a genuine student at a real high school where real people died but some sort of prop.
MARC RANDAZZA: I don’t think he’s ever said that Parkland didn’t happen. I think that saying that he’s using the event to push his own agenda is accurate. You know, if your agenda is, hey, I was in a school that got shot up and I want gun rights restricted because of that, man, I applaud those kids. I applaud David Hogg. Any teenager who’s gonna come out and do what he can to change the world, I don't care what direction he's pushing it in, I’m a fan.
BOB GARFIELD: This is Alex Jones speaking. “Folks, they staged Aurora. They staged Sandy Hook. The evidence is just overwhelming. The attacks in Orlando were a false flag terrorist attack.” [SIGHS] All right, that’s -- never mind, I don’t need a response.
MARC RANDAZZA: Look, I can't defend -- I am not going to defend the logic of his statements. I don't agree with them. I don't approve of them. I don't like them. But I like living in a country where he can ask them.
BOB GARFIELD: Earlier this week, Alex Jones and his InfoWars program got the virtual boot from three major platforms, Facebook, YouTube and Apple podcasts; they washed their hands of him. Is it his intention to sue?
MARC RANDAZZA: At this point, I have not discussed that with him. I can’t tell you what his intentions are at this time.
BOB GARFIELD: I want to ask you about another client. I don’t know her name. Her screen name on the messaging app called Discord is “kristall.night.”
MARC RANDAZZA: Mm.
BOB GARFIELD: Kristallnacht.
MARC RANDAZZA: Yeah.
BOB GARFIELD: And she was one of the organizers of the Charlottesville white power demonstrations. Among the things she organized was instructing followers what weapons to bring along. Now, there was violence that day, which ended in a woman being killed by one of the right-wing protesters. And there is a court order for the operators of the Discord app to surrender her actual name to be sued for her responsibility for Charlottesville under the general rubric of incitement. And you’re fighting that court order. Why?
MARC RANDAZZA: I disagree that “kristall.night” -- I wish this wasn’t radio, that you could see me rolling my eyes at that name -- I wish that Ms. Night had not participated in it at all but I think to call her an organizer I think oversells her role in this. There were a lot of people on this board talking about going there and what they should and shouldn't do, and my recollection of her comments were, bring a camera you don't mind losing ‘cause somebody might grab it, don't do certain things that might be considered violent. But yes, I do recall a comment where she said, bring a flagpole so that you can defend yourself if you’re attacked.
I think it’s awful that that girl got killed. I mean, I don’t know why the guy did it, but I certainly know Kristall Night didn’t say, get in your car and drive into a group of protesters. You are only responsible if you advocate imminent lawless action with the intent that that imminent lawless action take place. And neither Andrew Anglin nor Alex Jones nor Kristall Night, I think, are responsible for the lawless action that took place tenuously afterward.
BOB GARFIELD: You could certainly make the argument that when you denounce people as criminals or conspirators or, in some cases, as subhuman and your explicit audience acts on that in the most horrendous ways and you do not immediately intervene by saying, no, no, not that, please don't do that, in fact, double down on your original rhetoric, that signifies intent.
MARC RANDAZZA: I don’t believe so. I believe that what is going on in the Charlottesville case is more about making sure that you can add people's names to the list, the list of people who have to be un-personed. Look, I don’t want Kristall Night as my dinner guest, I don’t want to date her, I don’t want to hang out with her. But I think that the right to anonymous speech is very important, especially when it comes to disfavored political groups.
I don't think that she has enough responsibility for these events that she should lose her First Amendment right to anonymous speech. You know, if I could pick people to defend that would also be able to defend this neutral principle, I wouldn’t pick these people. You go to war with the army you have, not the army you want. These fights are not usually waged by really nice people. It’s the Westboro Baptist Church screaming at a poor kid's funeral. It’s the Ku Klux Klan. It’s the Nazis, It’s hardcore pornography. That's what's on that wall, and that wall defends the First Amendment.
BOB GARFIELD: I wonder if you can be described as a true exemplar of constitutional purity who just happens to have a client list of some of the most loathsome Americans in the political scene or whether you are kind of huffing your own fumes, defining yourself by the more or less absolutist stands that you take, that what you’re describing is not principle but just preening, building up an image of yourself.
MARC RANDAZZA: Hmm.
BOB GARFIELD: Is it a fair question and is it onto something?
MARC RANDAZZA: It’s a fair question. You know, I, I, I appreciate being forced into a deeper corner of self-reflection by it. I don't find it even to be offensive. You know, I get the, how can you do that, why would you do that?
I may be wrong, okay? I may be doing a terrible thing. I mean, Elle Reeve from VICE News asked me, I think, was the best question anybody ever asked me in an interview, which is, is America a better or a worse place if you win this case? And I said, I don't know. You know, I don't know, I really don't.
I'm not even convinced that we shouldn't have a conversation about how we change what is allowed as far as free speech, but we have a promise that we made to each other and that promise is that we shall have the broadest and most robust protections for freedom of speech.
BOB GARFIELD: Well Marc, thank you very much.
MARC RANDAZZA: Thanks, man.
BOB GARFIELD: Marc Randazza is a First Amendment lawyer from Las Vegas who spoke to us from Gloucester, Massachusetts.