On Wednesday, conspiracy theorist Alex Jones was hit with a nearly $1 billion judgment in a defamation case filed by parents of children killed in the 2012 Sandy Hook massacre. Contrary to most reporting, the astronomical damages he’s been held liable to pay to the shattered Sandy Hook families aren’t mostly about defamation, at least as that basis for civil liability has traditionally been understood. Instead, Jones is being strung up in large part because of the emotional distress to which he intentionally subjected these families—and one FBI agent—and because of the new reality of defamation law that has begun to find its way into courtrooms and jury verdicts.
The complaints filed against Jones in connection with his lies and resulting incitement to violence against the Sandy Hooks family contain an exhaustive compendium of intentional torts, including defamation, invasion of privacy, and the intentional infliction of emotional distress. The defamation and closely related privacy claims are certainly solid: Through his intentionally and recklessly false statements, Jones engaged in conduct calculated to harm the plaintiffs’ reputations (defamation), and to cast them in a false light in the eyes of the public (the privacy claim, which is closely related to defamation).
The things that were said about these families were so outrageous, and so heart-breaking I find it difficult even to describe them. I’ll just offer one example here. Francine Wheeler, whose son Ben was one of the first-grade victims, testified that she couldn’t even find peace in a support group for grieving mothers. Here’s how she described her encounter with another woman in the group, whose son had died just three weeks earlier:
She looked at my necklace. I have a picture of Ben. She said, “Who’s that?”
I said “That’s my son Ben. He died in his first-grade classroom at Sandy Hook School.” She said, “What?” She said ”You are lying. That didn’t happen.” …
They took my identity. And then they took my husband’s identity, they took my surviving child’s identity who was hiding in the gym.
This is utterly heartbreaking to read and there is certainly satisfaction in seeing Jones hit with what will hopefully be crippling damages. Yet defamation, at least as traditionally defined by English common law, isn’t quite the perfect fit for Jones’s repellant behavior. Historically, a successful defamation claim has generally required that at least a “respectable minority” of people believe the false statements being made about the party claiming defamation. This requirement follows logically from the requirement of harm to reputation—if a claim is so outlandish that no “respectable” person believes it, the justification for the lawsuit disappears. But that standard has a decidedly old school feel to it, conjuring up an image of, say, an English gentleman like John Steed with a bumbershoot and a bowler hat. More important than the terminological clunkiness, though, is that when Alex Jones, who claims to reach over a half-billion impressions with his dangerous conspiracy talk, accuses Sandy Hook parents of staging a false event, a significant number of people believe him. It doesn’t matter whether those people are “respectable” or not—what does matter is that these minions have made the Sandy Hook families’ lives a living hell. In today’s viral, staticky information environment, what matters to the plaintiffs is the consequences of these falsehoods—not the characteristics of the believers. As Josh Koskoff, one of the attorneys representing the plaintiffs put it: “Wherever they go, there’s no safe haven for them.” This reality is evidenced by parent Alissa Parker’s description of hiding in a closet at her own daughter’s funeral in case some incited Jones follower burst in. This fear will follow them forever, since what Jones unleashed can never be called back.
This is also a textbook case for the relatively new tort of intentional infliction of emotional distress. For about the past century, courts have recognized this claim for damages against those who engage in extreme and outrageous conduct with the intent to cause emotional distress to others, or by acting in a way that shows they don’t care whether they cause such distress. But the resulting distress must be severe; courts have only allowed liability for cases where the consequences to the plaintiffs are truly catastrophic. Past cases have perhaps taken this restriction too seriously. In one distressing case, for instance, a man repeatedly mocked for his stutter by a co-worker was not permitted to recover damages despite the outrageous and intentional behavior, because the court thought he hadn’t suffered enough.
This case proves the need for the emotional distress tort perhaps more than any other. Jones’s statements seemed created in a laboratory for the purpose of causing severe emotional distress, and of course his many followers greatly multiplied that distress through a years-long barrage of verbal attacks, threats, and accusations of the kind that no grieving parent—no person—should ever be subjected to. Their emotional distress is severe and permanent, and the many millions in damages awarded to these families is fully justified.
Of course, these damages don’t actually compensate for the additional trauma suffered. Nothing can. But by awarding substantial damages in a case like this, the law stands with the victims, sending the vital message that their lives have been disrupted because of someone’s intentional—and, in this case, vile— behavior. The judgment can also deter people like Jones—even though he’s an extreme case, other media outlets have shown less regard for truth than for profit and this might make some of them at least think twice before airing lies by people like him. Legal media, too, should be reminded of the vital necessity of getting their fact-checking houses in order before releasing stories. As Koskoff told me, perhaps the case can be “an inflection point in restoring a feeling of responsibility by those who tell the news.”
I’m not that optimistic. But with this verdict and the settlement earlier this year against Remington in connection with their marketing and sale of the high-capacity AR-15 weapon used in the very-real slaughter of all those kids and more than a few adults, at least there’s been civil redress against bad actors. It’s a small but crucial consolation.