On Sandy Hook, Alex Jones says ‘they’ are coming for 1st, 2nd Amendment. Why experts say he’s wrong

Gun Rights

Alex Jones has, experts say, used the U.S. Constitution as both a shield and a sword. 

When Jones first started talking about the Sandy Hook shooting, the day of the massacre itself, he said it was a manufactured crisis intended to create enough sympathy and outrage to enact gun control legislation. 

Now that he faces the second of three civil trials to decide damages after courts in both Connecticut and Texas handed down a default judgment in favor of Sandy Hook families, he has claimed that his First Amendment rights to free speech have been limited by a judge he’s called a “tyrant.”

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During the current trial, Chris Mattei, attorney for the Sandy Hook families, played a video of Jones saying Sandy Hook — and the Aurora, Colo. movie theater shooting a few months prior — were false flag operations designed as a pretense to limit the Second Amendment and part of a “global conspiracy out to kill and enslave them,” Mattei said, quoting Jones. 

Earlier in the trial, Jones went on Infowars and told his viewers “they” came for the Second Amendment with Sandy Hook and now “they” were coming for the First Amendment, too. 

The judge in the case, Barbara Bellis, has attempted to avoid the whole issue by barring Jones from saying in the courtroom that his free speech rights under the First Amendment have been compromised. This trial is about damages. Jones was already found liable for defamation. 

“The First Amendment is not an issue,” Bellis said.  

That has not stopped Jones from talking about it outside the courthouse.  

“We’re supposed to be the land of the free, home of the brave, and they’re using these dead children not just to try to get rid of the Second Amendment, but now the First Amendment,” he said during a press conference on the courthouse steps.  

The First Amendment

There are limits to the First Amendment. It does not, for example, protect a right to spread misinformation. 

“It’s very frustrating to see someone who has apparently, from all indications, been spreading knowing lies,” said David Schulz, director of the Media Freedom and Information Access Clinic at Yale Law School. “To try to hide behind the protections of the First Amendment is quite frustrating. It’s not what the First Amendment protects. The Supreme Court has said that there’s no First Amendment value in lies, and lies that cause harm can be punished.”

While Jones might have the First Amendment right to say what he thinks on the air or in court, he cannot use his platform to lie about individuals if those lies cause harm. 

“He certainly has a right to express his opinion about the right to bear arms, but that’s not what’s going on,” Schulz said. “And he doesn’t have the right to make up lies to try to fan the flames of, you know, Second Amendment advocates. 

William Dunlap, a Constitutional law professor at Quinnipiac University, said there are many limits to the freedom of speech. 

“Both Congress and the states have a lot of law regulating or punishing speech,” he said. “Among the categories of speech that are not protected completely by the First Amendment is defamation, which is what this case is all about.”

Throughout the current trial, and the previous trial held in Texas, the question arose of whether or not Jones is a journalist and if Infowars practices journalism. The First Amendment protects not only freedom of speech but freedom of the press. 

Opinions are protected, as are honest mistakes. 

“The Supreme Court over the years has been very careful to protect innocent mistakes when they’re made by news organizations on issues of public concern, because, as it is explained, errors inevitably happen in the give-and-take of covering the news, particularly when you’re under a deadline,” Schulz said.

But Jones and Infowars, Schulz said, did not make an honest mistake when they suggested, year after year, that the parents were actors and the massacre never happened. 

“What has been going on here is a pattern over the years of repeating information that has been shown to be untrue,” he said. “The First Amendment says that when you’re talking about matters of public concern, that there has to be a knowing falsehood.”

Jones has said that he genuinely believed the Sandy Hook massacre was faked, but that’s not good enough, according to Schulz. 

“You can misbelieve something,” he said. “But when something is so outrageous, so unbelievable, that only a reckless person would put it into circulation. would repeat it, that’s not protected. And to continue it over a number of years, it’s certainly conduct that can be punishable consistent with the First Amendment.”

‘Misleading’

Ryan O’Neill, a professor at Quinnipiac University and a partner with the Law Offices of Mark Sherman, practicing in the areas of criminal defense and defamation, said he believed Jones is “being misleading.” 

Jones is not allowed to say in court that his Constitutional right to free speech is being violated. He’s also not allowed to say in court that he believed Sandy Hook was a calculated “false flag” maneuver to take away Second Amendment rights.  

That, O’Neill explained, is because Jones was already found liable.  

“I understand that he has a problem with the fact that he never had a jury decide whether he was liable, but that was decided by the judgment of the court,” O’Neill said. “The problem is, that that judgment happened because he did not follow the rules of the court with respect to how information is supposed to be exchanged.”

New Haven-based attorney Alex Taubes explained that “there are rules in any court case.”

“Both sides have to comply with deadlines, both sides have to hand over to the other side their evidence,” he said. “Alex Jones wants to claim our system of government, or freedom of speech, open courts, as his savior, but when it came time to actually comply with court orders he refused to do so.”

It’s not just the court in Connecticut that issued a default judgment in favor of the Sandy Hook families because Jones had so flagrantly ignored the court’s rules, specifically the rules on discovery. A judge in Texas decided similarly.  

“The fact that two judges in two different states reached the same conclusion about Alex Jones’ litigation conduct tells you, I think, that it was very substantial violations and it wasn’t just something that was done by accident,” O’Neill said.  

In ignoring the court’s rules, Jones lost his chance to make a free speech argument. 

“He’s talking about things that he would have had the opportunity to potentially argue if he had followed the rules,” O’Neill said. “He didn’t follow the rules, and so what Bellis is saying is, ‘It doesn’t matter whether you believed it, or what your beliefs are based on right now, because that issue has come and gone. You had the chance to litigate it. You decided not to follow our rules when litigating it, and I had no other choice but to sanction you by deciding the issue of liability.’” 

That is, unless plaintiffs decide to raise questions of motive themselves. If Mattei and his colleagues suggest, as they have, that Jones’ motive was money, that allows Jones to offer a counter argument. 

O’Neill called it a “calculated high-risk, high-reward scenario.” Every time the plaintiffs’ lawyers raise political issues, Jones’ lawyer, Norm Pattis, says they “opened the door.” 

“Injecting some of these things into the case certainly does arouse more negative emotions toward Alex Jones when they frame it in their way,” O’Neill said. “But it does allow opportunities for Pattis in the defense to start injecting some of these other things that can create more distractions, or also create more justifications in the minds of some folks that might be deciding this.” 

The Second Amendment

On the day of the Sandy Hook shooting, literally as the parents were learning that their children had died, Jones was on the air claiming that the massacre was a manufactured “false flag” operation intended to take away his and his viewers’ Second Amendment right to bear arms.  

Plaintiffs have argued in court that Jones was essentially fear-mongering, that his real motivation was and remains money.  

“It’s come out in the trial so far that he had sponsors, advertisers that were gun manufacturers, and that they were courting other gun manufacturers as advertisers,” said University of Connecticut journalism professor Amanda J. Crawford. 

The Second Amendment has been, to some degree, a pivot point on which the strategies of both the plaintiffs and defense have rested. When Pattis questions a plaintiff on the stand, he asks whether or not they knew how Jones felt about the Second Amendment, and how the shooting changed their anti-gun activism.  

“He wants to convince the jury that the goal of the plaintiffs is to silence Jones’ free speech to talk about guns, that this is a plot to undermine Jones because they don’t like what he believes about guns,” Crawford said. 

There is a connection between mass shootings and gun sales, as Dunlap said: “Every time that there is a mass shooting or some other atrocity involving guns, that the sale of guns would go up, because the manufacturers and organizations like the National Rifle Association would say, ‘OK, now they’re going to come after your guns.’” 

Claiming that your Second Amendment rights are at risk is a business and advocacy strategy Dunlap said “has been going on for years, for decades.” Proposals for gun legislation may make it harder for certain people to get guns, those laws are not unconstitutional, he said. 

Though he said he disagrees with “the substance” of Jones’ arguments — “disagree with them in a big way” — Dunlap said using the Bill of Rights to defend your beliefs is, in and of itself, why the Bill of Rights exists. 

“There aren’t very many individual protections in the Constitution itself, but in the Bill of Rights, in the post Civil War amendments, are a lot of rights that I think people are entirely justified in using to protect their behavior,” he said.  

The fault of default

Jones cannot speak on the record, in court, about the First Amendment, something Crawford sees as a bit of a missed opportunity. 

Jones spread misinformation about a national (and local) tragedy. A discussion — on the record, in court — on where First Amendment protections begin and end might have been valuable to our society.  

“The court has said that because he didn’t cooperate, he can’t make his First Amendment argument,” she said. “Does that help our conversation about what is misinformation, what’s allowed in the First Amendment? Not at all.” 

The default judgment is good for the families, Crawford said. It means they don’t actually have to prove liability, just the extent of the damage Jones caused. But that also means the discourse is limited. 

“If you’re looking at this as a case that is important in our current moment, about how do we deal with misinformation through the institutions that exist, from an academic perspective it’s somewhat disappointing that we don’t get to have a trial that deals with the merits of this case,” she said.  

Jones did not explicitly name many of the people who are suing him (though he did name and publicly mock father Robbie Parker, who took the stand recently). But there will be no serious discussion about what Crawford called “the finer points of libel.” 

“There will be no arguments about whether or not his speech was protected by the First Amendment,” she said. “There’ll be no arguments about group libel, and whether or not he actually libeled, defamed or inflicted emotional distress on individuals that he did not name.” 

The default judgment “may have been warranted,” Crawford said, but it hands Jones a talking point, the ability to claim on television, in press conferences and everywhere else outside of the courtroom, that his rights have been stolen.  

“He will forever be able to argue that he didn’t have a trial on the merits, that he was hamstrung by the legal system,” she said. “He gets to prove his argument that they were out to get him.” 

“He gets to say that this was the government going after his First Amendment rights, because he didn’t get to make that case,” she said.  

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