Defamation / Reputation
Johnson v. Steele
On Appeal Mixed Outcome
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The Texas Court of Appeals for the Third Circuit dismissed the appellants’ motion to dismiss and affirmed the district court’s order in favour of the defendant, Neil Heslin, in a case involving a defamation claim against appellants’ Alex Jones and Owen Shroyer. Neil Heslin’s son, Jesse Lewis, was a victim of the 2012 Sandy Hook Elementary School shooting in Connecticut which claimed the lives of many students and teachers. The appellants’ (who are renowned talk show hosts) had disputed Heslin’s account of the Sandy Hook incident, claiming that statements made by Heslin on a public forum such as him holding his son’s body after the incident, were false. The Court of Appeals dismissed the appellants’ claim that the challenged statements were subjective commentary (rather than statements of fact) entitled to protection as protected speech under the First Amendment, and declared that subjective commentary on disclosed facts which is verifiable as false can be subject to defamation liability.
Appellant, Alex Jones, is an internet broadcaster and a talk show host based in Texas. The appellant owns and operates other appellants, namely Free Speech Systems, LLC (which broadcasts his videos) and InfoWars, LLC. The appellant Owen Shroyer is a talk show host for Free Speech Systems. A long-standing advocate of First and Second Amendment rights, Alex Jones had frequently questioned the biased views of mainstream media in reporting newsworthy events to promote certain policy views – such as, the media presenting a prejudiced view of gun violence to increase support for gun control.
A similar event discussed on the appellant’s show was the shooting at Sandy Hook Elementary School in Newtown, Connecticut on December 14, 2012. The incident claimed the lives of many students and teachers, including one Jesse Lewis – a six year old kid. In the wake of the shooting, Neil Heslin, defendant and father of the victim Jesse Lewis, became a leading national advocate for gun control. For more than four years after the shooting, he participated in and spoke publicly on TV as well as newspapers advocating for gun control laws. On June 25, 2017, Heslin gave a televised interview to a NBC reporter, Megyn Kelly, during which he rebutted Jones’ claims that the shooting was a hoax. Later on the same day, Free Speech Systems broadcasted a video featuring commentary by Shroyer which disputed Heslin’s account of the Sandy Hook incident. A month later, the report from Owen Shroyer was repeated on Alex Jones’ show, with additional commentary from Jones.
In response, Heslin sued the media organisation as well as its hosts, Jones and Shroyer, for defamation and for offering subjective commentary on his media appearance on NBC news. Specifically, Heslin sued the appellants for statements disputing his claim on Megyn Kelly’s show about holding his deceased son in his arms. The appellants subsequently filed a motion to dismiss Heslin’s claims under the Texas Citizens Participation Act (TCPA). Because the appellants did not respond to limited discovery requests granted by the trial court’s preliminary ruling to Heslin under Rule 215 of TCPA (Rule 215 discovery sanction), he filed a motion for contempt.
By an order dated October 18, 2019, the trial court heard the appellants’ motion to dismiss and the defendant’s motion for contempt and held that Heslin’s motion for contempt should be granted and the TCPA motion to dismiss should be denied. Though the appellants’ had argued that their statements were either protected expressions of truth or alleged statements of fact both of which were entitled to protection under law, the court held that Heslin had met the burden to establish a prima facie case for defamation under TCPA.
Consequently, the appellants sought to appeal the denial of the motion to dismiss by the district court. They argued that the First Amendment shields subjective commentary on true facts and pure opinion from defamation claims where matters of public concern are under scrutiny. On this basis, they asked the court to grant the motion to dismiss and overturn the district court’s order.
Judge Scott Jenkins presided over the Texas Court of Appeals and delivered the majority opinion. The principal question before the Court was whether a prima facie case for defamation exists based on the appellants’ statements which disputed Heslin’s account of the events at Sandy Hook and whether he held his son’s body.
To review the TCPA motion to dismiss which was denied to the appellants’ by the district court, the appellate Court began by considering whether the appellants had established a valid defense to Heslin’s claims as stated above. To do this, the Court assessed whether the appellants had proved each essential element of a valid defense by a preponderance of evidence.
The appellants’ initial claim, based on the Texas Supreme Court’s opinion in Carr v. Brasher, that the challenged statements were subjective commentary (rather than statements of fact) entitled to protection as protected speech under First Amendment, was dismissed by the Court. This dismissal was based on a careful analysis by the Court relying on principles extrapolated from Milkovich v. Lorain Journal Co. which laid down four criteria to distinguish a statement of fact from an opinion. For emphasis, these principles are: first, where public-faced plaintiffs are involved, the statement must be ‘provable as false’; second, constitutional protection is afforded to statements where a reasonable man cannot interpret it as stating actual facts; third, such statements must be shown to be made with knowledge of their disregard for truth; and finally, enhanced appellate review is warranted in such cases to ensure there is no intrusion into free speech. [p. 7].
Based on the aforementioned four-fold test, the Court subsequently proceeded to analyse the facts of the case. The Court reviewed the statements in each broadcast to determine if the broadcasts by Jones and Shroyer constituted protected speech. It attempted to deconstruct the anomaly depicted by Jones and Shroyer between the statements made by Heslin to Megyn Kelly (that he held his deceased child in his arms) and those of the coroner (which indicated that the parents were never allowed to see their children in the aftermath of the incident). By investigating the timeline of events and the testimonies, the Court concluded that at least some of the statements by Jones and Shroyer were verifiable statements of facts that could be proven false. As a result, it declared that their broadcasts were not liable for protection as constitutionally protected opinions.
Next, the Court analysed the applicability of the substantial truth doctrine, which empowers media outlets to assert truth as a defense if they accurately report allegations in cases where the public interest is involved. The line of reasoning that the appellants put forth was that their statements were substantially true because they merely commented and reported faithfully third party allegations. Such reiteration, regardless of the actual facts of the Sandy Hook incident, rendered their statements liable for protection. The Court also dismissed this argument, citing that some of the comments made by the appellants’ were independent statements of fact that disputed Heslin’s account of the incident. Thus, the appellants’ were also devoid of the defense of substantial truth in reporting third-party allegations.
Finally, the appellants also invoked fair comment privilege as a defense, which attracts protection against defamation in circumstances where there is a reasonable and fair comment/criticism on matters of public interest. However, the Court noted that where a comment is based on a substantially false statement of fact which the defendant conveys as truth, the comment is not protected under this doctrine. Given that the appellants’ had conceded that their statements were false, this protection was not available to them.
On other fronts, the Court also rejected the appellants’ claim that Infowars, LLC was entitled to exclusion from defamation liability as it lacked authority or control over Jones and Shroyer’s Sandy Hook broadcast. Accordingly, the Court approved the trial court’s sanctions, granting Heslin’s motion for sanctions and awarding him with USD 22,250 towards attorney fees.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
Defamation is one of the few categories of speech that the First Amendment does not protect. In New York Times v Sullivan (1964), the court set a high bar for protecting the First Amendment-guaranteed right with respect to public officials by mandating ‘malice’ (a knowingly false statement in reckless disregard of the truth) as a requirement for defamation. Subsequently, in Gertz v. Robert Welch, Inc. (1974), this requirement of malice was extended to other categories such as ‘limited purpose public figures’. Over the internet (which has become an increasingly preferred medium for conspiracy theorists like Jones), establishing such boundaries of defamation and what it means to be a ‘public figure’ entitled for First Amendment protection is quite tricky.
Nevertheless, the Court’s ruling advance a widely established jurisprudence at the intersection of freedom of press and private reputation rights and clarifies that the First Amendment doctrine needs to evolve so as to ensure that values of free public debate and protection against harm are balanced. With the outcome of the case currently pending appeal in the Texas Supreme Court, the case will substantially redefine free speech in the digital age.
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Case significance refers to how influential the case is and how its significance changes over time.
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