Alex Jones, a well-known media personality, falsely claims you were an accomplice in faking the murder of your own child.
You sue him.
It seems such a case should be easy to win, given the nature of those statements. But defamation law does not provide an equally easy answer.
Sandy Hook: Fact and fiction
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Here’s the background: On Dec. 14, 2012, gunman Adam Lanza shot and killed 20 6- and 7-year-olds at the Sandy Hook Elementary School in Newtown, Connecticut.
For several years afterward, Infowars host and conspiracy theorist Alex Jones questioned whether the shooting was faked by the Obama White House and co-conspirators in an effort to undermine gun rights in the United States. Sandy Hook parents were also harassed online and in person as “hoaxers” and “crisis actors” by members of Jones’ audience.
So this spring, several of the parents of children who died in the shooting at Sandy Hook sued Jones for defamation.
Narrow standards for defamation
For hundreds of years, the parents’ defamation claim would have been a simple one decided under state law. Jones’ false allegations that the parents lied would have been deemed harmful to the parents’ reputations; a jury would assume money damages were appropriate; and Jones would have had to pay.
However, that changed in 1964 when the U.S. Supreme Court, in New York Times v. Sullivan, decided that the federal Constitution’s First Amendment required state courts to strike a different balance.
In Sullivan, the court decided that where the plaintiff claiming she was defamed by a defendant’s statement was a “public official” – a politician or other high-level government officer – state defamation law had to be more lenient in order to protect the public’s right to vigorously discuss such people, even where statements in that discussion turn out to be false.
Instead of simply showing that the defamatory statement was false, or showing that a reasonable speaker would have known the statement was false – which is the standard that still applies to private people in many states – the plaintiff had to show that the defendant either deliberately lied about her or seriously doubted the statement was true and said it anyway.
That standard is known as “actual malice.”
Ten years later, in Gertz v. Welch, the court extended the actual malice standard to a new class of defamation plaintiffs. The court called them “limited-purpose public figures” – otherwise private people who had voluntarily inserted themselves into controversies that were the subject of public discussion.
These people, concluded the court, should, like public officials, also have to show actual malice in defamation suits. That’s because they assume the risk, the court said, of being talked about negatively and even falsely when they enter public debates “in order to influence the resolution of the issues involved.”
But what if a person didn’t choose to be a public figure? Should they still be treated as one when they sued a speaker for defamation?
The court said that “hypothetically, it may be possible for someone to become a public figure through no purposeful action of his own, but the instances of truly involuntary public figures must be exceedingly rare.”
Technology complicates defamation
As I’ve written before, the internet has changed defamation law in deep and meaningful ways. But the internet has also undermined the court’s statement in Gertz that the problem of an involuntary limited-purpose public figure was unlikely to occur.
By making public so much of daily life that was formerly private, the internet has made involuntary public figures out of many people who have suffered notable tragedies through no fault or risky behavior of their own.
In his legal defense, Jones will likely argue that the plaintiff-parents are limited-purpose public figures and they should therefore have to prove that his statements about them were made with knowledge that they were false.
True, many Sandy Hook parents became vocal participants in the anti-gun movement in the wake of the tragedy. But making such individuals prove actual malice in their defamation suit against Jones would get the First Amendment backwards. It would stifle important responses to disastrous events in individuals’ private lives.
It would encourage individuals to take the tragedies that happen to them and swallow them silently.
Parents have the right to decide whether to grieve their children publicly or privately, and online or off. The degree of fault they might have to show in a defamation claim should not play any role in that decision.