By Steven J.J. Weisman
BOSTON — Last week, a Texas jury took primary custody of his three children — ages 9, 12 and 14 — away from talk host and Infowars founder Alex Jones and awarded joint custody to Jones and his former wife, Kelly Jones.
In the first day of the trial, Alex Jones’ attorneys were quick to combat the characterization of their client as unstable by indicating that he was a “performance artist” akin to Jon Stewart or Rush Limbaugh. Rather than being a raving madman, they argued he was merely a performer combining “humor, bombasity, sarcasm and wit.” However, later that very night Alex Jones posted a video in which he contradicted his lawyers, saying “they’ve got articles out today that say I’m fake, all of this other crap. Total bull.” He went on to criticize the media and say, “the media is deceiving everywhere. I 110 percent believe what I stand for.”
Normally, we would not be reporting on family disputes in Talkers, but these are far from normal times in media. A significant part of Kelly Jones’ case was her allegation that her former husband was unstable as evidenced by his volatile media rantings, which have included a number of unusual conspiracy theories, such as alleging that the Al Qaeda attacks of 9/11 were in fact “an inside job” carried out by the U.S. government and that the lone gunman attack at the Sandy Hook Elementary School in Newtown, Connecticut in 2012 was a hoax perpetrated by gun control advocates.
It should be noted, however, that despite much of the media focusing on the trial as a forum for the legitimacy of Alex Jones’ media career, Judge Orlinda Naranjo largely refused to accept evidence of Alex Jones’ shows nor his politics.
Jones’ troubles last week were not limited, however to his custody case. While the trial was going on, he was sued for defamation in Idaho by the Chobani yogurt company for stories that appeared on Infowars and on the Alex Jones Channel on YouTube in which Jones is alleged to have asserted a connection between a 2016 sexual assault on a five year old girl by three boys ages 7, 10 and 14. The tenuous apparent connection is due to Chobani, a successful yogurt company started by Hamdi Ulukaya, a Turkish immigrant, hiring more than 300 immigrants as employees. The stories were promoted with tweets under the headline “Idaho Yogurt Maker Caught Importing Migrant Rapists.” Another Infowars video was linked to a Drudge Report with the headline of “REPORT: Syrian ‘Refugees’ Rape Little Girl at Knifepoint in Idaho.”
The facts, however, do not support either the misleading headlines or the stories.
Idaho prosecutor Grant Loebs said there was no absolutely no connection with the crime and Chobani. Because the case involved juveniles, Attorney Loebs was limited in what he could say, however, he did indicate that a five-year-old girl was sexually assaulted by three boys and that two were refugees from the African country of Eritrea and one was an Iraqi refugee. Further, Loebs indicated that while the boys pleaded guilty to several charges including sexual exploitation of a child, “there was no gang rape, no knife attack, and we did not charge anybody with rape because no rape occurred.”
The attorneys for Chobani said that they filed the defamation lawsuit only after Jones had refused to retract the false reports. In their lawsuit, they claim that Jones acted with malice, which is a critical element of their lawsuit. Chobani may be considered by the court to be the equivalent of a public figure and therefore someone in the media communicating a false statement about it would only be held legally responsible for defamation if the statements were made with malice, which in this context means either knowing that the assertions were lies or with a reckless disregard for the truth.
The lawsuit alleges, “Defendants falsely accuse Chobani of ‘importing migrant rapists’ and bringing ‘crime and tuberculosis’ into the community among other false statements. Such bald accusations of criminal conduct constitute classic examples of defamation per se.” The claim of defamation per se is important because if the court agrees with this analysis, Chobani can be successful in its claim without having to prove any economic harm.
Following the stories alleging a connection between Chobani and the sexual assault on the five-year-old girl the company has been confronted with numerous calls for boycotts. It should be noted that these stories did not originate with Jones and have appeared in a number of other sources, as well.
In a video response to the filing of the lawsuit, Jones admitted that Chobani does not have the power to import migrants and has not done so, however, he also portrayed himself as the victim when he characterized the lawsuit as an attempt to intimidate him brought by “the bullies of the Islamic invasion movement.”
False statements and fake news can have disastrous consequences as we saw with the fake news reports by numerous sources including Jones that came to be known as Pizzagate that utterly without evidence stated that Democratic party figures, including Hillary Clinton, were involved in a satanic child trafficking ring at the Comet Ping Pong pizza restaurant in Washington, DC. These totally false stories resulted in protests to the restaurant and death threats to its owner James Alefantis culminating last December when Edgar Welch, armed with a semiautomatic rifle, drove from North Carolina to Washington and fired shots inside the restaurant in response to the stories. Welch has pleaded guilty to assault with a dangerous weapon and interstate transportation of a firearm. For his part, Jones made an apology in March for helping to perpetrate this false news story. Jones indicated that the story was false, but justified his actions as merely commentary saying “To my knowledge today, neither Mr. Alefantis, nor his restaurant Comet Ping Pong were involved in any human trafficking, as was part of the theories about Pizzagate that were being written about in many media outlets and which we commented upon.”
And that is the crux of the issue that all talk hosts face. What is the liability for commenting on stories that end up being false? The courts have generally been supportive of talk hosts commenting on stories without imposing a duty of commentators to investigate the facts. A Ninth Circuit Court of Appeals case in 2009 dismissed a defamation case against talk host Tom Marino, ruling that something that may sound like an assertion of a fact by a talk host would be interpreted by reasonable talk show listeners as a First Amendment protected opinion. The court went on to characterize much of talk radio saying that it “contains many of the elements that would reduce the audience’s expectation of learning an objective fact: drama, hyperbolic language, an opinionated and arrogant host, and heated controversy.” In the Marino case the court emphasized that giving an opinion on news reports originating elsewhere is protected by the First Amendment.
Talk radio is a magnificent part of the media filled with entertainment and insight, however in an era when fake news is a significant problem, we could all do a better job of investigating the facts before commenting. The First Amendment does not require us to do so, but our own ethics should.
Steven J.J. Weisman is a practicing attorney, legal editor for TALKERS magazine, a professor of Media Law at Bentley University in Waltham, Massachusetts and publisher of the website www.scamicide.com. He can be e-mailed at: firstname.lastname@example.org. Steven J.J. Weisman is available as a guest to discuss legal matters and the subjects of identity theft and scams. Meet him at Talkers 2017: A New Era on Friday, June 2 in New York City.