Jurisprudence

Fake News Goes to Court

Will Fox News and Alex Jones have to pay for pushing bogus stories about real people?

White nationalist Matthew Heimbach fights with demonstrators.
White nationalist Matthew Heimbach fights with demonstrators at Michigan State University as he and other alt-right advocates try to attend a speech by white nationalist Richard Spencer on March 5 in East Lansing, Michigan.
Scott Olson/Getty Images

It’s been a bad week for white supremacists and fake news. First, Matt Heimbach—the founder of the neo-Nazi group the Traditionalist Worker Party and a man famous for shoving a black woman at a Donald Trump rally—was arrested for assaulting another woman (his wife). Since Heimbach was also accused of choking the co-founder of the party as part of what seems to be a complicated love rhombus, it now appears the entire group is defunct. Also this week, the Southern Poverty Law Center discovered that the wife of Stewart Rhodes, founder of the alt-right anti-government militia group the Oath Keepers, had filed for a temporary restraining order, claiming her husband was abusive and violent. Alt-right servers are being shut down, as are YouTube channels, albeit too slowly. And Richard Spencer, who was meant to be the alt-right’s palatable offering, has ruefully declared that his white-supremacist rallies—as a result of which at least one woman has been killed—are “not fun anymore.” He says he is considering canceling his whole not-fun, poorly attended speaking tour. He’s also dropping his lawsuits against colleges that had barred him from speaking. Also, he can’t get a lawyer to represent him.

In addition to this spectacular self-propelled flame-out of prominent white supremacist leaders, there are also a handful of lawsuits seeking to bankrupt them and the media outlets that give them oxygen. It’s easy to say this is a paper war between paper enemies. But the truth is that these suits are, paradoxically, the only mechanism these plaintiffs can deploy to prove they are real humans being subject to real damage, by media companies that pretend to be journalists when in fact they are just bullies.

Two such suits have been filed in recent days: one against Fox News by Joel and Mary Rich, the parents of Democratic National Committee employee Seth Rich, and another against Alex Jones and Gateway Pundit for pushing false stories about a man who filmed the white supremacist rally in Charlottesville, Virginia.

The defamation suit filed by Rich’s parents names Fox News reporter Malia Zimmerman, who allegedly worked with a wealthy former Morgan Stanley executive named Ed Butowsky to create a “sham” story about Seth Rich’s death. The story claimed Rich, who was murdered in 2016, had leaked DNC emails to WikiLeaks and implied that he was killed for it. There is no substance to any of these allegations. (The entire story, detailed in the complaint, is mind-boggling, but the Washington Post has a good summary.) Suffice to say that the private detective quoted by Fox News to support the story is also suing Fox in connection with the same story.

The Rich story was published on Fox News’ website in May 2017 and was then referenced on numerous television reports. Fox later retracted the story without apology or explanation. The lawsuit seeks compensation for “mental anguish and emotional distress, emotional pain and suffering, and any other physical and mental injuries.” The Rich family claims Fox “published, republished, and publicized the sham story—which they knew would be covered again and again, and republished, here and around the world—painting Joel and Mary’s son as a criminal and a traitor to the United States.”

The suit seeks compensation for “mental anguish and emotional distress, emotional pain and suffering, and any other physical and mental injuries” endured by Rich’s parents, who claim that “the Zimmerman/Fox Article, together with the Defendants’ dealings with Joel and Mary leading up to it, constituted an overwhelming assault causing Joel and Mary intense distress.”

The other defamation suit this week was filed in federal district court in Charlottesville by Brennan Gilmore, a former U.S. Foreign Service officer. Gilmore happened to be filming on Aug. 12, when James Alex Fields Jr. allegedly rammed his car into a group of peaceful protesters, injuring several and killing Heather Heyer.

When Gilmore’s video circulated in the media, Alex Jones immediately claimed he was a “deep state shill” and “CIA asset” who in fact spearheaded Fields’ attack. He published pieces that described the violence in Charlottesville as a “staged” act, one executed by left-wing political operatives and financed by George Soros. In one rant, Jones claimed, “They got State Department and high-level CIA. One guy is paid 320,000 a year on the payroll of [George] Soros. He doesn’t just get money from Soros, he personally is paid 320 a year, and then he is there—CIA, State Department—and he is on the news. And when people pointed out who he was, they took his name of the State Department website and stuff, but Google has all the [screen]shots of it. I mean it’s like WOW, WOW—CIA? Your senior guys?”

The website Gateway Pundit was all in, too: “The random Charlottesville observer who was interviewed by MSNBC and liberal outlets turns out to be a deep state shill with links to George Soros. It looks like the State Department was involved in Charlottesville rioting and is trying to cover it up. But after Deep State got caught they are trying to erase this guy from their records.”

As the Gilmore complaint notes, Jones and Gateway Pundit “quickly mobilized their army of followers to launch a campaign of harassment and threats against Mr. Gilmore.” They published the addresses of Gilmore and his parents online, and he began to be inundated with hate mail, death threats, and hacking attempts. White powder was sent to his home.(Gilmore says the police ultimately told him the powder was harmless.)

The suit, filed by Georgetown Law’s Civil Rights Clinic, names Jones, InfoWars, Gateway Pundit owner Jim Hoft, reporter Lee Stranahan, former Republican Rep. Allen West of Florida, and others who disseminated such stories.* Gilmore seeks a jury trial and damages, and he says he will not accept a cash settlement from Jones, who has been known to pay off litigants or just retract his false stories. Jones responded to news of the suit with a YouTube rant that seemed to focus on Lord of the Rings.

Are lawsuits like the two filed this week attacks on newsgathering in general? Not really, because both suits distinguish between what real media does and what media scams and hatchet jobs do, and how the latter victimizes literal bystanders. As the Gilmore complaint puts it, in describing Alex Jones and his ilk:

Fact-based journalism is essential to our democracy, because it provides citizens with objective, reality-based information on issues of public concern. Defendants are not fact-based journalists. Defendants spread lies to construct false narratives that terrify a gullible audience, all in a desperate attempt to generate revenue and momentum for a hateful agenda. The First Amendment necessarily creates space for democratic debate, but it does not and cannot protect the spread of deliberate lies driven by hate and designed to incite violence against private citizens. In this era of ubiquitous smartphones and social media saturation, ordinary citizens like Mr. Gilmore increasingly find themselves in situations where they capture breaking news and are compelled out of civic duty to share it. The consequences for fulfilling this civic duty cannot include becoming the target of premeditated character assassination, based on lies and carried out by professional conspiracy theorists instrumentalizing their throngs of followers.

Alex Jones and Gateway Pundit and Fox News operate in a world of perpetual churning rage and fantasy, in which no victim—not the Sandy Hook children, not the Stoneman Douglas children, not Seth Rich, and not Brennan Gilmore—is real or human enough to matter. The casual disposal of real lives through the wood chipper of dehumanization/conspiracy/deep state fan fiction has nothing to do with fact or journalism.

I reached out to Brennan Gilmore to ask why he decided to take on the fever swamp of the right. He told me, in an email:

These outlets fail to abide by the most basic ethical practices of journalism, yet pose as legitimate media. And as we hope to show in court, they not only disregard ethical lines, they break legal guidelines that have governed journalism for centuries. The lies that we outline in the case are demonstrably false, but none of these sites took the time to fact-check, confirm their story, or even ask me to comment on the tales they told. They created a persona from drawing fantastical lines to connect vague data points, and launched harmful accusations as an attack on my credibility because they did not like what the video I captured showed: that violence inevitably arises from the kind of hate these outlets routinely broadcast.

Real people are really harmed when fake media spreads fake news. Courts may be the last institutions capable of demonstrating the difference between human and cartoon, journalism and fraud.

Correction, March 19, 2018: The piece originally misstated the suit was filed by the same Georgetown clinic that sued to enjoin private armed militias. That suit was brought by a different law clinic, the Institute for Constitutional Advocacy and Protection.