This is the first in a series addressing civil tort liability as a potential remedy for outrageous anti-community behavior.
Jurors in Austin, Texas are considering the amount of damages which should be awarded to parents against Alex Jones and his Infowars company after he broadcast repeatedly for years that the massacre of their children at a public elementary school in Newton, Connecticut was a sham set up to make the gun lobby look bad.
The core legal theory at work in the case is known as The Intentional Infliction of Emotional Distress. It is described in the Restatement on Torts as “extreme and outrageous conduct” which “intentionally or recklessly causes severe emotional distress to another.”
In Arizona, jurors deliberating on civil suits involving Intentional Infliction of Emotional Distress are instructed that someone’s “conduct is ‘extreme and outrageous’ if an average member of the community would regard the conduct as atrocious, intolerable in a civilized community, and beyond all possible bounds of decency.”
The action is a civil, not a criminal remedy. The standard of proof used to determine liability is “by a preponderance of evidence,” a much lower standard than is used in criminal law which requires proof of guilt “beyond a reasonable doubt.” The compensatory damages, including pain and suffering, to plaintiffs such as the parents in this action may be supplemented by punitive damages if the jury finds by clear and convincing evidence that the defendant has acted with an evil mind.
The trial currently unfolding in Austin is just one of three separate cases unfolding against Jones involving his public statements about the Sandy Hook massacre.
BROADCASTING ABSURD LIES WITH CRUELTY
Since the 2012 tragedy at Sandy Hook Elementary claimed the lives of 26 people, including 20 children, Jones has frequently taken to the air waves to claim that the event didn’t happen. As reported in The New York Times, Jones and his Infowars sidekick Owen Shroyer publicly disputed grieving father Neil Heslin’s description of holding his dying son in his arms, claiming the account was a lie.
In defense, Jones argues that he has only repeated or platformed the lies of others. But it is widely reported that Jones started making false claims about the shooting only hours after it occurred.
This is the same Jones who was also a major player in the “Stop the Steal” campaign to overturn President Biden’s election, which culminated in the January 6, 2021 attack on the US Capitol Building.
The trial is in a procedurally unique status. The bad faith refusal of Jones to participate in discovery and otherwise cooperate with the proceedings as required by the rules of civil procedure led to increasingly severe sanctions. Pleadings on behalf of Jones on the liability portion of the case were stricken to award judgment to plaintiffs, with only the amount of damages to be decided by the jury.
There are people who have ideas which are stupid, mean, and worse—there are those with policy goals which, if implemented, would cause widespread harm. There are people who begin fights out of anger or thrill of dominance. There are political leaders and people in authority of armed forces who make miscalculations which cause incredible suffering. There are bombs dropped on people whose faces are never seen.
But the depravity of repeatedly telling parents that their children really did not die after they were shot by automatic weapons is evil worthy of the inner rings of whatever inferno Dante, or anyone else for that matter, could imagine.
REMEDY
Attorneys at trial representing victims in tort cases come to the difficult transition in closing argument when the jury must be told that, even though the deceased will not be brought to life, or the leg which was damaged will not return to full use, it is nonetheless necessary for the guilty assailant to pay to make the innocent victim or their family whole as best as possible.
Jones did not cause these parents to lose their children. But he did spread lies about the loss of their children for profit. The award in the Jones case should be very high. The remedy is not antidote.
This is only money. Society as a whole would benefit from the cleansing effect of deterring this rabid curse of cruelty for profit. As Mark Bankston, the attorney for the grieving families, told the jury on July 26, “This a case about creating change. You have the power to stop this from ever happening again.”
Perhaps Jones will testify. If so, his testimony will likely result in perjury, pathetic pleas of ignorance, or requests for forgiveness. According to a spokesperson for Jones, the trials and threat of losing money has caused him to be increasingly “stressed out,” worried and unable to relax. Isn’t that ironic!
A similar combination of potential outcomes motivated Steve Bannon to avoid testimony at the trial which convicted him of criminal contempt in mocking his obligation to comply with a Congressional subpoena. The Trump elite lie with impunity, but rarely subject themselves to testimony under oath which could be subject to perjury prosecutions.
As the trial approached the end of the first week, Jones arranged for Infowars’ parent company Free Speech Systems, to file for bankruptcy. This is just the most recent time Jones or companies with connections to him have used bankruptcy protections as a means of avoiding financial accountability.
REFORM
In election after election, it is shocking to learn that those who protect the disgusting profiteering of munitions peddlers who sell weapons of war to civilians, and frequently very youthful population, receive no adequate disincentive from the voters. Proposals such as advancements in access to mental health care are rarely accepted. Even if implemented, there will be a wild shooting spree perpetrated by someone afraid that he will have his weapons confiscated.
The difficulty of an actual solution is centered on profit. As “Deep Throat” reported to Bob Woodward about Watergate, “Follow the money.” The money is in the pockets of the weapons manufacturers. According to a recent report by the House Oversight and Reform Committee, the five leading manufacturers of AR-15 style weapons have made at least a combined $1.7 billion in profits on those weapons alone in the last decade.
The civil remedy may be the most effective available to make a dent in our problem. And this is not the only issue where a civil remedy may be helpful to improve our society. The harassment of election officials, school board members, librarians cause persons to leave careers, have families threatened, and to destroy quality of life.
If political remedies continually fail us, taking on crooks and liars like Jones through the civil courts provide another alternative. If evildoers like Jones are conscienceless in pursuit of profit, making it unprofitable to do evil may lead to a good remedy.
Header image: Participants representing victims of gun violence attend a vigil to mark the 5th anniversary of the 2012 mass shooting at Sandy Hook Elementary School in Newtown, Connecticut, December 14, 2017 in New York City. (Photo Source: Eduardo Munoz Alvarez/AFP via Getty Images).
The $40 million neighborhood of punitive damages awarded against Alex Jones is far from money in the bank. The United States Supreme Court has derailed the long recognized punitive damages issue in the last two decades by placing procedural burdens which— few people will be surprised to learn— bail out some of the worst corporate wrongdoers. What had been the province of states has been federalized, at least in part, to protect tobacco and a number of other well healed corporations found liable by juries after hearing and evaluating the evidence of specially deserving guilt and enhanced verdicts.
Scoundrels like Jones are also part of a long tradition of hiding assets through layers of non-human ownership, complex records, and dishonest claims of modest means. In the 1980s one such bad actor settled a case, hid all assets forcing new litigation, and thanks to the tenacious work of my partner finally coughed up money on the verge of trial #2. Shortly before that we discovered that some of his assets were in krugerrands, South African currency. This was during the apartheid era.
The trial has produced extraordinarily positive results for society. A major malignant perpetrator of many big lies has been described in his own despicable words in a highly memorable way.
Mechanically, a judgment may allow for post trial inspection of his finances until amounts are satisfied. With other cases and punitive damages remaining, the wheels are set in motion to allow inspection of things which Jones and his ilk never want to allow others to see.
There is no plaintiff, and I hope no plaintiff’s lawyer, whose primary goal was padding a bank account. This effort is an investment in civil decency, with the hoped for by-product of better government and rules in society.
The amount of damages is more modest than I expected. But messages have been sent even before the jury deliberated. There may be a price for being despicable with lies for profit.
The courage of parents who took the witness stand to explain what has happened to them should never be forgotten. We owe those parents and others like them for picking themselves up and trying to make the world a better place where all of us are safer and our children more secure. This trial has not only highlighted a greedy, conscienceless human life which should never have been born. It has allowed good people harmed in the most vicious of ways to take the offensive against evil, and feel some sense of accomplishment in the never ending fight for justice and decency. They have done what they can to honor their children, and those snuffed out in Sandy Hook, and so many other laces in our nation.
UPDATE: The jury is in. CNN reports, “Jury finds Alex Jones caused $4 million in damages to two Sandy Hook parents”, https://www.cnn.com/2022/08/04/media/alex-jones-trial-sandy-hook-decision/index.html
Right-wing talk show host Alex Jones will have to pay the parents of a Sandy Hook shooting victim a little more than $4 million in compensatory damages, a jury decided Thursday, capping a stunning and dramatic case that showcased for the public the real-world harm inflicted by viral conspiracy theories.
The award from the jury was far less than what the plaintiffs, Scarlett Lewis and Neil Heslin, had asked for. At the start of the trial, attorneys for Lewis and Heslin asked the jury to award their clients $150 million in compensatory damages.
A separate, shorter trial during which punitive damages will be discussed is now expected. Punitive damages are awarded when the court finds the defendant’s behavior to be especially offensive.
-Oh, there will be punitive damages in this case.