BROOKE GLADSTONE: From WNYC in New York, this is On the Media. I’m Brooke Gladstone.
BOB GARFIELD: And I'm Bob Garfield. The age of Trump, the age of polarization, the age of alternate facts also seems to be shaping up to be the age of defamation. This week, for instance, came the lawsuit filed against Infowars, the conspiracy- mongering media outlet most notorious for denying the reality of the Sandy Hook Elementary School massacre.
ALEX JONES: Sandy Hook is a synthetic, completely fake, with actors, in my view, manufactured. I couldn't believe it at first. And then the weird videos of reported parents of kids laughing and then all of a sudden they do the hyperventilating to cry to go on TV, all I know is something’s goin’ on.
BOB GARFIELD: Infowars host Alex Jones now stands accused of defamation and conspiracy, one of several defamation cases being brought against him. Meanwhile, President Donald Trump faces a suit from a former contestant on his reality TV show whose allegation that Trump kissed and groped her was met by the now standard presidential counter allegation that she is a liar. The lawyer for porn actress and self-described Trump sex partner Stormy Daniels says she's mulling a similar suit, as is the lawyer for former FBI Director Andrew McCabe who tweeted Thursday that Trump’s tweets on the matter would serve such a case beautifully. It’s a constant duel of, you’re a liar, no, you’re a liar on the world’s biggest stage. But ‘til now, it seems to have taken place with impunity.
Lyrissa Lidsky is a First Amendment expert and dean of the University of Missouri's School of Law. And I have a checklist of legal questions for her. Dean Lidsky, welcome to On the Media.
LYRISSA LIDSKY: Thank you very much. It’s nice to be here.
BOB GARFIELD: Let's start with Alex Jones. One suit was filed last month by Brennan Gilmore who happened to be in Charlottesville and shot video of a neo-Nazi protester running down a counter protester in the street.
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Jones and other voices from Infowars, in a now common refrain, called it all a setup.
ALEX JONES: They have known CIA and State Department officials in Charlottesville first tweeting, first being on MSNBC, CNN, NBC. And the mayor is involved. It -- everybody's a “cut-out.”
BOB GARFIELD: Now he’s called a witness a liar, an agent for something sinister, for which he has no evidence. Is that defamation?
LYRISSA LIDSKY: Well, it certainly can be. So he referred to Brennan Gilmore, a former Foreign Service officer, as a “deep state” operative. And while in some contexts that might be mere hyperbole, it seems that he is basically calling Brennan Gilmore a traitor. And, evidently, Gilmore received lots of threats as a result, so that can be an allegation that tends to harm your reputation and, in this case, it looks like it actually did because it resulted in those threats.
BOB GARFIELD: Another case was brought against Jones earlier this month by Marcel Fontaine, a Massachusetts man whom Inforwars incorrectly identified as the Marjory Stoneman Douglas High School shooter, apparently based on a t-shirt that he has been photographed in depicting Marx and Lenin. Now, we know the allegation was false. Does his lawsuit hinge on whether Infowars knew it to be false at the time it printed it?
LYRISSA LIDSKY: Yes, it does. So this happened in the Boston Marathon bombing originally. It's happened in -- even in the Sandy Hook shooting, the brother was identified as the shooter first, erroneously. But the key here is whether it was a lie or whether Alex Jones and Infowars were reckless in perpetuating this falsehood that Mr. Fontaine was the shooter.
BOB GARFIELD: Reckless because they made no attempt to --
LYRISSA LIDSKY: No attempt to verify it. He was wearing a t-shirt that was evidently a parody of Communism. I mean, it had, you know, Karl Marx wearing a silly hat.
BOB GARFIELD: Now, I want to get to Tuesday's development. Three parents whose children were murdered at Sandy Hook Elementary filed a suit against Jones and Infowars for defamation and also for conspiracy. Jones, for a long time, maintained that Sandy Hook was not a real crime scene but a false flag operation perpetrated by the government to justify bridging Second Amendment rights or some such nonsense. And the plaintiffs’ allegation is that Jones and the entire Infowars operation defamed them by saying they’re part of a false flag operation and not victims of a tragedy. And, pointedly, they alleged conspiracy, as well. Why is that significant?
LYRISSA LIDSKY: I think in this case there's a symbolic value to the conspiracy claim in saying, this is a whole organization based on perpetuating lies and alternate facts. So it’s not just Alex Jones doing it as an individual, it's an entire business model about defaming individuals.
BOB GARFIELD: It’s clear that they won't be satisfied to see an apology or a cash payment from Alex Jones or some such penalty. They want to shut him down. Is this a path to do so?
LYRISSA LIDSKY: Potentially. The aggregation of all of these defamation lawsuits have the potential to bankrupt Infowars and bankrupt Alex Jones. Our country has a strong, strong commitment to free speech and we even protect people, for example, who deny that the Holocaust ever happened. This lawsuit is about sending a message that what Alex Jones has done is simply not acceptable and it's not free speech.
BOB GARFIELD: All right, it’s not just Alex Jones and it's not just Parkland, it’s not just Sandy Hook. It’s also, as we’ve seen, Pizzagate. It’s a supposed political murder of Seth Rich, a Democratic Committee employee who died in an apparent robbery in Washington, DC. I would add the birther lie to the list. There's a whole cottage industry of right-wing media in the business of propounding rumors, conspiracies, perverse theories without evidence. If this new case against Infowars succeeds, does that put this category of right-wing media as an industry at risk?
LYRISSA LIDSKY: It’s a warning shot that you don't get to invent lies, you don't get to invent your own reality. One of the functions of defamation law is to protect individual reputation, but a broader function is to make sure that our public discourse has a necessary anchor in truth or at least an attempt to find that truth.
BOB GARFIELD: I mentioned the proto-conspiracy of this age of defamation, Trump’s birther lie about Barack Obama supposedly having been born in Kenya, which he repeated and repeated and repeated without any repercussions, [LAUGHS] certainly not political ones. I know there was a high threshold for libel or defamation against political figures because it can intrude on protected political speech, but are politicians absolutely invulnerable to the consequences of bald-faced lies about other politicians or anyone else?
LYRISSA LIDSKY: So in 1964, in a case called New York Times v. Sullivan, which is probably the most famous First Amendment case of all time, the US Supreme Court said that public officials suing for defamation would have to prove that the speaker intentionally lied or recklessly disregarded the truth of what they were saying about them, but they left open the possibility that the public official could, in fact, sue for defamation.
As a practical matter, most politicians, particularly at the national level, don't sue for defamation. They will use the bully pulpit to get their message across. And that's why you see most presidents, even though they’re routinely defamed, even with lies, they don't use a defamation suit to try to go after their critics.
BOB GARFIELD: Well, over the last year and a half the president has repeatedly called Hillary Clinton a “criminal.” He has recently started calling James Comey a “criminal.” And there are some noises brewing about defamation suits in his claims about the fired Justice Department official, Andrew McCabe. Those are not presidents. Is there a chance that they will take on the pastor of the bully pulpit?
LYRISSA LIDSKY: Well, there very well may be because it could be that we've crossed a threshold in our public discourse where people decide they are gonna go to court, that it's not enough, given how polarized our debate is, to just reach out to the people that believe as they do, that they need a, an objective source to pronounce what the truth is. Although I would point out that Comey was certainly able to get his message out, both in a book and in a well-publicized television interview.
BOB GARFIELD: I’m going to ask this question carefully because I don’t want to be accused [LAUGHS] of inciting people to litigation but is it possible that those who feel defamed by accusations made on the Hannity show, on Breitbart or, for that matter, Salon and The Nation, to go to court to seek remedy there and, again, to have some sort of salutary effect on the swamp that political discourse has become?
LYRISSA LIDSKY: Well, potentially. That is one function of defamation law. However, there's a heavy dose of realism that needs to come with that. Most of us just don't have the resources to engage in that, either the financial resources to pay the lawyer or the emotional resources to see it through to the end.
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BOB GARFIELD: Lyrissa, thank you very much.
LYRISSA LIDSKY: Thank you.
BOB GARFIELD: Lyrissa Lidsky is the dean of the University of Missouri’s School of Law.