Disinformation and Defamation: Alex Jones and the Sandy Hook Massacre

The Opinion Defense

First Amendment Issue #3

The First Amendment enables a libel defendant to use the defense of opinion. Libel pertains only to false statements of fact. An expression of opinion, on the other hand, typically involves subjective judgments and not factual statements.

As Justice Lewis Powell wrote in the U.S. Supreme Court decision Gertz v. Welch (1974), “there is no such thing as a false idea. However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries, but on the competition of other ideas.”

But what exactly is opinion as distinguished from statements of fact? The U.S. Supreme Court in Milkovich v. Lorain (1990) looked at whether a statement “is sufficiently factual to be susceptible of being proved true or false.” 

A more detailed judicial test came with Ollman v. Evans (D.C. Cir. 1984), in which a federal appeals court suggested a four-part test to determine whether a statement is protected opinion:

  1. Is the statement verifiable, that is, capable of being proved true or false?
  2. What is the common usage of the words in the statement?
  3. What is the journalistic context in which the statement is made? (for example, an op-ed would signal opinion); and
  4. What is the social context in which the statement is made?

Jone's Opinion Defense

“As a pundit, and as someone who is giving opinion, my opinions have been wrong but they were never wrong consciously to hurt people,” Jones said during a deposition. He also argued that opinions, even wrong ones expressed in the spirit of journalism, may have value under the First Amendment. 

In an attempt to dismiss a defamation lawsuit, Jones compared himself to Carl Bernstein and Bob Woodward, The Washington Post journalists who helped uncover the Watergate scandal, saying he acted like a journalist when his opinion led him to question the narrative of the Sandy Hook school shooting in 2012. 

Lawyers for Jones wrote in his filing for dismissal: “Such journalism, questioning official narratives, would be chilled if reporters were subject to liability if they turned out to be wrong…. To stifle the press (by making them liable for merely interviewing people who have strange theories) will simply turn this human tragedy into a Constitutional one.” 

Jones acknowledged that some of his opinions were baseless, but asserted, “I was stating that I was reporting on the general questioning when others were questioning. And, you know, it’s painful that we have to question big public events. I think that’s an essential part of the First Amendment in America.” 

In response, Bill Bloss, an attorney for the families, said in multiple news reports that, “The First Amendment simply does not protect false statements about the parents of one of the worst tragedies in our nation’s history. Any effort by any of the defendants to avoid responsibility for the harm that they have inflicted will be unsuccessful.”

Apply the First Amendment

Then invite students to imagine they are judges in a court. Have them apply the four-part opinion test to Alex Jones’s statements as detailed in Tables 1 and 2 on the previous page. Invite students to determine

  1. whether the statements were verifiable;
  2. whether the statements express use common usage of words to convey its meaning;
  3. the journalistic context in which Jones made his statements; and
  4. the social context in which his statements were expressed.

Invite the students to analyze whether the deposition statements of Alex Jones on the Sandy Hook massacre constitutes opinion rather than meant as expressions of fact.

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