The Virginia Defamation Law Blog
The Internet is full of morons. If an Internet troll who clearly has no idea what he or she is talking about posts false statements on social media about another person, the effect on the reader is different than if the same statement had been written by an authoritative figure and circulated to the public in a formal news release. Readers would tend to believe the assertions made in the authority figure’s formal statement, and tend to dismiss the troll’s statement as nothing more than meaningless Internet noise. In actions for libel and slander, the perceived knowledgeability and credibility of the speaker plays an important role in the determination of whether defamatory meaning has been conveyed by a particular statement.
The Alex Jones lawsuit comes to mind. Alex Jones is the host of InfoWars and an extremely popular online conspiracy theorist. He has claimed that the 2012 shooting at Sandy Hook Elementary School was an elaborate hoax, complete with adult and child actors, invented by government-backed “gun grabbers.” Many of his followers apparently believed his claims and have been harassing the victims’ families. Recently, several of the families have filed defamation lawsuits against Jones, arguing that he “persistently perpetuated a monstrous, unspeakable lie: that the Sandy Hook shooting was staged, and that the families who lost loved ones that day are actors who faked their relatives’ deaths.”
The courts hearing these cases are going to have to decide an important question at the outset: for purposes of determining whether Jones’ statements are capable of conveying a defamatory meaning, should it matter that Jones–described by the Washington Post as “America’s foremost purveyor of outlandish conspiracy theories” is not generally regarded as a reliable source of factual information?
Of course, a major part of Jones’ defense is going to be that his conspiracy theories amount to nothing more than personal opinions, which are protected by the First Amendment and are generally not actionable. For the sake of this blog post, however, assume a court finds that Jones did indeed make certain representations of fact on his InfoWars show. If it was clear to his listeners that Jones really had no direct personal knowledge of the “facts” he recited on his show, despite the fact (sorry) he was presenting them as facts, and that Jones’ outlandish assertions were merely a personal “theory” about what really happened at Sandy Hook, a court could conceivably rule that the statements–while hurtful–are not defamatory as a matter of law, even if his theories are completely false. In other words, if no reasonable person would take what Jones says as fact, then,
the argument would go, Jones is incapable of defaming anybody because his statements would not actually harm anyone’s reputation.
For a conspiracy theory to be actionable, there should at least be an implication that the speaker has personal knowledge of certain facts, unknown to his audience, which support the theory and which are detrimental to the person about whom he is speaking. (See Steinhilber v. Alphonse, 501 N.E.2d 550, 552–53 (1986)). If the reasonable listener would not infer that the speaker has personal knowledge of what he speaks, but is instead expressing a personal theory based on widely reported facts available to everyone, defamatory meaning is likely lacking.
The Supreme Court of Virginia has explained that where it is clear from the identity of the speaker and the context of the statement that the speaker is not really in possession of any undisclosed facts that might be defamatory, the statement should be treated as one of opinion. The facts of Schaecher v. Bouffault, 290 Va. 83 (2015), are essentially these: Gina Schaecher, the plaintiff, was the owner and operator of 3 Dog Farm, a company that provides rehabilitation services to displaced companion canines. Her development company applied for a special use permit in Clarke County to operate a boarding kennel of more than five dogs, but her application met with resistance from Robina Bouffault, a nearby neighbor and member of the Clarke County Planning Commission. Bouffault allegedly sent out a number of defamatory emails to her colleagues on the Planning Commission and to the Winchester Star, attacking Schaecher’s credibility and integrity. The emails included the following statements, among others:
- “It would appear that Mrs. Schaecher was not totally truthful” and
- “I firmly believe that Gina is lying and manipulating facts.”
Ms. Schaecher sued for defamation and the defendant demurred on the ground the statements were opinions, not factual assertions.
The circuit court sustained the demurrer to the defamation claim, and the Virginia Supreme Court affirmed, finding the statements amounted to “pure opinion” and were therefore not actionable. “In exercising our gatekeeper function,” the court wrote, “we must therefore conclude that a reasonable person in [the readers’] positions would have perceived the accusation as a pure opinion on the part of Bouffault based upon her subjective understanding of the underlying scenario and not upon an implied factual predicate of which they were unaware.” By fully disclosing the basis for her accusations of dishonesty, the court found that the only reasonable way for the recipients of her email to interpret her statements was as expressions of subjective opinion:
The email appears to fully disclose the basis of Bouffault’s rationale. See Biospherics, Inc. v. Forbes, Inc., 151 F.3d 180, 185 (4th Cir.1998) (opinions fully disclosing their factual bases constitute a subjective view and are not actionable); Phantom Touring, Inc. v. Affiliated Publications, 953 F.2d 724, 730 (1st Cir.1992) (where “all sides of the issue, as well as the rationale for [the speaker’s] view, were exposed, the assertion of deceit reasonably could be understood only as [the speaker’s] personal conclusion about the information presented”); see also Standing Comm. on Discipline of the United States Dist. Court v. Yagman, 55 F.3d 1430, 1439 (9th Cir.1995) (“A statement of opinions on fully disclosed facts can be punished only if the stated facts are themselves false and demeaning.”).
(See Schaecher, 290 Va. at 105.) Under this reasoning, whether Alex Jones will be held liable for defamation may depend on whether his listeners had reasonable grounds to believe, and did believe, that Jones was in possession of certain knowledge that he did not share with his audience, and that he based his theories on that knowledge. To the extent his conspiracy theories were based on widely reported, true facts, disclosed to his audience, he would have a stronger claim that the factual conclusions discussed on his show were, in reality, pure opinions protected by the First Amendment.
The Alex Jones cases do have the potential to have a substantial impact on U.S. defamation law, and here’s why: the hypothetical “reasonable person” plays a large role in many facets of American law, but recent events (e.g., PizzaGate) have shown a troubling chasm forming between what the law assumes a hypothetical reasonable person would do and what actual, unreasonable people are actually doing. So sure, it may very well be that no reasonable person would believe anything Alex Jones says on his show. It’s also generally true that if no one who hears slander believes it, defamation has not occurred. (See Nanavati v. Burdette Tomlin Memorial Hosp., 857 F.2d 96 (1988)). But in this era of #FakeNews, there seem to be sizable numbers of people who nevertheless do believe what Alex Jones feeds to them. So if large numbers of unreasonable people are drawing unreasonable inferences based on statements made by a person who clearly has no idea what he is talking about, but those people are causing real harm to real people, should the law of defamation evolve to meet this new reality?
The answer remains to be seen. In the meantime, there’s always intentional infliction of emotional distress.