To many on the right, Alex Jones is a free-speech martyr. On Wednesday, the conspiracy theorist was hit with a nearly $1 billion defamation judgment, after having smeared the families of the victims of the 2012 Sandy Hook massacre as “crisis actors” in a government plot to ban guns. Twenty first graders and six teachers were killed in the shooting.
In response to the verdict, the second time a court has found Jones liable, prominent conservative-media figures began insisting that Jones’s free-speech rights had been violated. The right-wing personality Charlie Kirk tweeted, “This isn’t about calculating real damages from Alex Jones. This is about sending a message: If you upset the Regime, they will destroy you, completely and utterly, forever.” Representative Marjorie Taylor Greene of Georgia called Jones a victim of “political persecution” because “all he did was speak words.”
Defamation typically involves words, and defamation is a long-recognized exception to the First Amendment’s protections. There is no dispute about the falsehood of Jones’s conspiratorial statements regarding the Sandy Hook massacre, that “the whole thing was fake,” that it was “completely fake with actors, in my view, manufactured.” After all, during the first defamation trial in Texas, Jones acknowledged that the massacre was “100% real.” There is also no dispute about whether he made the statements. As a result of Jones’s false claims, the families of those slain in Sandy Hook were subjected to years of online harassment from malicious idiots who believed his lies. Reasonable people can disagree about the size of the monetary award, but Jones’s liability seems a foregone conclusion. For his part, Jones faced default judgments because he refused to fully cooperate with the process, while also attacking the proceedings as “show trials.”
Tellingly, there were very few defenses of what he actually said, and more reputable conservative outlets simply posted news of the verdict without much commentary. Most of the time, conservatives argue that it is not easy enough to sue for defamation. The standard for defamation of public figures in the United States is high in order to protect freedom of speech in general and political debate in particular. Altering that standard would make speech in America less free. But the response of many right-wing figures to the Jones verdict shows that rather than “freedom of speech,” what they actually have in mind is an arrangement in which liberal speech is chilled by exacting legal standards that do not apply to conservatives. Although few conservative elites explicitly hold this position, the story of the Republican Party in the last decade is one of ideas from the fringe migrating to a position of dominance within the party.
While running for president in 2016, Donald Trump declared his intention to “open up the libel laws.” Supreme Court Justices Clarence Thomas and Neil Gorsuch have voiced support for overturning the landmark 1964 case New York Times Company v. Sullivan, which set the legal standard for defamation high for those deemed to be “public figures.” Under that standard, known as “actual malice,” a public figure typically has to prove that the person they are suing either knew what they said to be false or held a “reckless disregard” for whether it was true. Thomas’s call has been echoed by a chorus of conservative pundits, including the Heritage Foundation’s Hans von Spakovsky, who complained that thanks to Times v. Sullivan, “the media can get away with printing or saying just about anything they want, no matter how false or malicious.”
The verdict against Jones proves that’s actually not true, that even with the admirably high bar set by Times v. Sullivan, it is possible for powerful media figures to be held accountable for deliberately spreading blatant falsehoods. And although Jones appears to make most of his money cynically hawking snake-oil supplements to the gullible, his popularity means that he qualifies as a powerful media figure. In fact, to the extent conservatives believe that the law should protect ordinary citizens without important media platforms from those who have and wield them maliciously, a popular fabulist held liable for smearing people whose loved ones were murdered in order to sell dietary supplements would seem to be an example of the system working properly.
Given all that, you would think that conservatives would be rejoicing over the Sandy Hook verdict, rather than engaging in hysterics about being silenced by the “regime.” But they’re not, because lowering the bar for defamation lawsuits was never about countering falsehoods in the press; it was about silencing criticism of conservatives. Both Trump and his supporters imagined that if the actual-malice standard were overturned and defamation standards eased, they would have an easier time intimidating mainstream media outlets with legal threats, forcing them to provide Republicans with more positive coverage.
Trump’s recent lawsuit against CNN provides a useful example. In it, Trump’s attorneys complain that CNN has aired segments where individuals have used “ever-more scandalous, false, and defamatory labels” such as “‘Russian lackey,’ ‘insurrectionist,’ and ultimately ‘Hitler.’” Whether you think these remarks are stupid or accurate, they are obvious statements of opinion, just as the lawsuit’s description of CNN as the “stuff of tabloids” is a statement of opinion. It’s unlikely a single American president since World War II hasn’t been compared to Hitler by someone who doesn’t like him very much.
Nevertheless, Trump’s attorneys argued, citing the late federal judge Laurence Silberman, that the actual-malice standard should not apply, because “ideological homogeneity in the media—or in the channels of information distribution—risks repressing certain ideas from the public consciousness just as surely as if access were restricted by the government.” In other words, speech critical of conservatives should be held to a different legal standard than conservative speech. Indeed, Silberman contemplated overturning Sullivan as a means to punish the media for, in his view, being too liberal, itself a form of unconstitutional state retaliation against speech.
This is the true force behind the right-wing reaction to the Jones verdict, and the campaign to overturn Times v. Sullivan. Even under the current exacting standard, Jones was held liable in multiple lawsuits. But when conservatives defend him as a free-speech martyr while demanding Sullivan be overturned, they are really saying that only their speech should be protected. Conservatives like Jones should be able to defame without consequence, but harsh criticism of powerful right-wing politicians should be subject to legal sanction.
In the most rosy possible scenario, abandoning the actual malice standard would make it easier for wealthy and powerful people of any political stripe to silence their critics. Applied neutrally, it could be far more dangerous for many conservative outlets than mainstream ones. But that is not the society these conservatives imagine when they defend their own right to defame others while insisting that the law itself should be changed to make it easier for powerful political figures to silence their critics. What they conceive of is a society, backed by right-wing control of the federal judiciary, in which they have a right to say whatever they want about you, and you have a right to shut up and like it.
This is part of the general drift of the conservative movement, many of whose adherents now believe the rights conferred by small-l liberalism are exclusively reserved for those who share their views. Corporate money is speech, unless conservatives do not like how that money is spent. A true free marketplace of ideas is one in which right-wing arguments always prevail. Democracy is when Republicans win elections; fraud is when they lose them. Freedom of speech is when they can say what they want and their critics cannot effectively respond. Their anger over the Jones verdict is simple disgust at the idea that the rules apply to them at all, when in a truly great and free America, they would only apply to their opposition.