Sean P. Anderson
Alex Jones in 2014.
Fifteen years ago, while visiting Harvard University, I sat in on a lecture given at the law school on taboo and the First Amendment by famed attorney Alan Dershowitz, with guest appearances by Steven Pinker and Randall Kennedy. Dershowitz was erudite and earnest, utterly in his element—the word “show” is in his name, after all. When he quizzed his audience on the purpose of the First Amendment, one student ventured that it protected the right to free speech.
Dershowitz erupted. No. No. No. It does no such thing. As I recall him proclaiming, the First Amendment does not protect you from your boss, who in most cases can fire you for the words you choose. It does not protect you from the harsh judgments of others, and the repercussions that can ensue. You can still be sued for defamation or charged with breaking the law.
In fact, what the First Amendment actually does is disallow the government from “abridging the freedom of speech, or of the press.” It offers no more protection from the consequences of expression than that experienced by this hapless law student in Dershowitz’s classroom.
This tutorial comes to mind in light of the repercussions from speech currently being experienced by Infowars lunatic Alex Jones. In August, a Texas jury ordered him to pay $49.2 million in damages to the parents of a first-grader murdered in the Sandy Hook Elementary School massacre of 2012. It is the first of three defamation cases stemming from Jones’s grotesque claim that the mass killing of twenty children and six educators, in Newtown, Connecticut, was fabricated to drum up support for gun control.
[Editor’s note: After this issue went to press, a jury in a second defamation case, in Connecticut, ordered Jones to pay the families of the Sandy Hook victims the sum of $965 million in damages. Jones, who during the trial mocked the proceeding, saying “I’m done saying I’m sorry” and claiming that his First Amendment rights were being violated, plans to appeal.]
Of course, Jones, who at his Texas trial acknowledged the Sandy Hook shooting was “100 percent real,” deserves to pay a price for his deliberate lies and cruelty. But sadly, it’s highly unlikely that this awarded amount will stand, due to strict caps on punitive damages in Texas, where the judgment was rendered. Jones, a shameless seller of snake oil to his deluded followers, has an estimated net worth of between $135 million and $270 million. He and other “belligerent fabulists,” to borrow some words from The New York Times, will go on “building profitable media empires with easily disprovable lies.”
Wesley Ball, an attorney for the parents, urged the Texas jury to send a message of rebuke to the fabulists. “I am asking you to take the bullhorn away from Alex Jones and all of the others who believe they can profit off of fear and misinformation,” he said in his closing statement. “The gold rush of fear and misinformation must end, and it must end today.”
But no such relief will likely be forthcoming. Defamation law generally applies only to speech that damages individual persons or businesses; it does not cover lies told about science, history, or the government. As the Associated Press put it, “Holocaust deniers, flat-earthers, and vaccine skeptics are free to post their theories without much fear of a multimillion-dollar court judgment.”
The only available counter to misinformation, it seems, is accurate information. Like democracy itself, the preservation of truth involves constant struggle, and allowing all points of view to be heard is helpful to that cause. But it is not a mandate of the First Amendment. Just look at another recent situation involving, of all people, Alan Dershowitz.
In an August 6 op-ed for New York Daily News, the now-emeritus Harvard law professor threatened to sue his local library in Martha’s Vineyard, Massachusetts, for not including him in its annual lecture series. He insists it was because he had served as a member of Donald Trump’s legal team during his first impeachment trial.
“Libraries are obviously allowed to exercise discretion, inviting [whomever] they wish,” Dershowitz wrote. “But in this case, my disinvitation was caused solely by the fact that I defended a President they didn’t like. The fact that I voted against him twice didn’t excuse my political sin.”
Dershowitz declared that the Chilmark Free Public Library’s decision not to include him in its annual lecture series, as it has in years past, amounted to “banning a speaker based entirely on partisan and ideological factors.” He claimed, without providing evidence, that “some prominent supporters of the library don’t want my views to be sponsored by their library.”
In a letter to the library director, Dershowitz apologized for letting the issue “become so personal” while repeating his accusation that “someone . . . succumbed to political pressures” to prevent him from speaking. The library trustees, in a subsequent meeting with Dershowitz, staunchly disagreed, saying he was not included because he asked to speak after the library’s schedule had already been set. The library board agreed to consider him as a potential speaker in its 2023 lineup; Dershowitz begrudgingly set aside for now his threat of legal action while continuing to assert that his First Amendment rights were somehow violated.
No. No. No. They were not. The First Amendment, in my opinion, does not require that Alan Dershowitz be provided an opportunity to speak at his local library. It just doesn’t. And I say that as someone who was awed to see Dershowitz give a lecture, and would love to do so again.
If Dershowitz were being fair in his assessment, he would acknowledge that libraries and librarians are on the front lines of the defense of free speech, often courageously so. He owes more respect to the trustees of the Chilmark library board than to speculatively impugn them. There is no reason to believe they acted because of Dershowitz’s representation of Trump—or Harvey Weinstein, or Jeffrey Epstein, or O.J. Simpson, or Leona Helmsley, or any of a long list of other unsavory characters he has through the years—other than Dershowitz’s apparent deep-down longing for victimhood.
But even if it did want to exclude Dershowitz because of what he might say, the library would have been within its rights to do so. That’s part of the “discretion” he admits it is “allowed to exercise.” What if the speaker demanding an invite from his local library was, say, Alex Jones? Does the library have to say yes? Of course not. One of the consequences of speech is that people may decide that you are someone to whom they would rather not listen.
Another self-proclaimed martyr for the First Amendment is David Daleiden. He’s the guy who in 2015 released highly edited videos purporting to show that Planned Parenthood was engaged in the harvesting and sale of fetal body parts. The videos were widely discredited and Planned Parenthood was repeatedly cleared of wrongdoing. In 2017, the state of California charged Daleiden and a fellow anti-abortion activist with multiple felonies, some of which remain pending.
In a recent online article for The Progressive, I wrote about how the Thomas More Society is using Daleiden’s pending prosecution to raise money. That drew an email from Daleiden himself, asking to submit a letter to the editor in response to that, and to Helen Christophi’s investigative report that partly dealt with him in The Progressive’s April/May 2021 issue. The magazine agreed, but no letter was forthcoming.
In his email to me, Daleiden urged “progressives of good will” to “oppose the political weaponization of California’s police and judicial power to censor opposition speech.” He linked to a motion filed in July arguing that this prosecution violated his First Amendment rights.
No. No. No. It does not. Daleiden and his fellow defendant are charged with criminal eavesdropping and conspiring to invade the privacy of abortion providers. Maybe they’re guilty as charged; maybe not. Maybe the jury will get it right; maybe it won’t. But the conduct they are accused of committing is not protected under the First Amendment. It’s just not. And I think the courts will agree, even given the U.S. Supreme Court’s wholesale embrace of First Amendment protections for things like spending unlimited amounts of money to sway elections. We’ll see.
Meanwhile, a compelling example of rights that the First Amendment does protect is playing out in Florida. There, the state’s attention-seeking, culture-war-waging governor, Ron DeSantis, suspended Andrew Warren, the elected state attorney of Hillsborough County, for pledging to not criminally prosecute people who violate Florida’s new fifteen-week abortion ban.
Warren, who has filed a federal lawsuit against DeSantis, was not removed for actually refusing to charge someone, as he could surely have done under the broad discretion granted to prosecutors. He got the hook for saying he would not do so, and, the suit alleges, for signing a statement “condemning the proposed criminalization of transgender people and gender-affirming health care.”
Government is not allowed to punish people for speech, and that seems exactly what DeSantis is trying to do to Warren. The courts should not allow it.
Reasonable people may disagree about what the First Amendment requires or protects, but two things are true: The government is not supposed to infringe on free speech, and no one is ever free of consequences for what they say and do.