There are five additional points that have been made about the Alex Jones case that I wish to address, four of which were expressed in emails to me and one of which was expressed in an article published today by Judge Andrew Napolitano. (See part 1 and part 2 of this series here and here.) 1. Some of Jones’s supporters say that the Connecticut trial was a “kangaroo” proceeding because the judge excluded matters that Jones wanted to tell the jury. But it’s important to point out that a trial is not some sort of anarchist battleground. It is governed by rules of procedure and rules of evidence that have been developed over centuries of case law. Sometimes these judicial rules are codified into law by the legislative branch of the government. For example, see The
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There are five additional points that have been made about the Alex Jones case that I wish to address, four of which were expressed in emails to me and one of which was expressed in an article published today by Judge Andrew Napolitano. (See part 1 and part 2 of this series here and here.)
1. Some of Jones’s supporters say that the Connecticut trial was a “kangaroo” proceeding because the judge excluded matters that Jones wanted to tell the jury.
But it’s important to point out that a trial is not some sort of anarchist battleground. It is governed by rules of procedure and rules of evidence that have been developed over centuries of case law. Sometimes these judicial rules are codified into law by the legislative branch of the government. For example, see The Federal Rules of Civil Procedure and the Federal Rules of Evidence that govern trials in federal court. The same sorts of rules govern trials in state court, whether they have been codified into law or not.
First-year law students are required to take semester-long courses in civil procedure and evidence. Every civil trial lawyer is expected to have a thorough understanding of both the rules of procedure and the rules of evidence. Woe to any lawyer who walks into a trial, especially in federal court, without having that thorough understanding. He will be skewered by the judge.
Under the rules of evidence, a party cannot tell or show the jury whatever he wants. Any evidence he wishes to bring to the jury’s attention must conform with the rules of evidence and it must be offered into evidence under the rules of procedure.
For example, suppose Alex Jones wanted to tell the jury, “John Doe told me that the plaintiff didn’t really move out of his house after he was harangued by my followers.” As soon as Jones got the first four words out of his mouth, the opposing lawyer would stand up and object to the evidence as being “hearsay,” which is not admissible in trials except in very limited instances. The judge would sustain the objection and would not let Jones make the statement.
This would cause Jones and his followers to exclaim, “Kangaroo court, Jacob! We should have the right to tell the jury anything we want.” But that’s not the way trials operate. The reason for the hearsay rule is that over the centuries, courts have decided that the admission of hearsay into evidence results in an unfair trial and, therefore, will not be permitted. The same principle applies to other evidentiary matters.
2. Some of Jones’s supporters claim that the jury award of $965 million in the Connecticut trial is excessive. They could have a point. It’s difficult to know for sure without having been there and seen what the evidence in the case was. The plaintiffs testified that they were subjected to unbelievably horrific actions at the hands of Jones’s followers. Some families had to move out of their homes because of the extreme harassment. One of Jones’s followers even urinated on the grave of one of the children who was killed. Thus, there seems to be no doubt that the plaintiffs suffered enormous emotional and psychological damage as a result of the harassment they received. But the jury’s award could only be for compensatory damages, not punitive damages. Whether the evidence supports the jury’s damage award is a question of law for the trial judge and the appellate courts. If they find as a matter of law that the damages are excessive, they will reduce the award. But keep in mind that the $965 million was spread among several families. The largest award for a particular family was actually $120 million.
3. Some of Jones’s supporters say that since he didn’t order his followers to harass the plaintiffs, he shouldn’t be held responsible for their actions. But that’s not the way a tort action works. The law of torts holds that the defendant is responsible for the foreseeable consequences of his actions.
This principle of foreseeability was among the first principles we learned in torts class in my freshman year in law school. The case we studied was Palsgraf v. Long Island Railroad. The plaintiff, Helen Palsgraf, was waiting at the Long Island Railroad train station in 1924. Two men who were boarding before her dropped a package that exploded. That caused a scale on the platform to hit her. In an New York Court of Appeals opinion written by Justice Benjamin Cardozo, who went on to become a renowned justice on the U.S. Supreme Court, the court held that the defendant was not liable because it could not have reasonably foreseen this unusual sequences of events. According to the Wikipedia article on the case, the Palsgraf case is still “taught to most if not all American law students in torts class.”
Were the actions of Jones’s followers in harassing and abusing the plaintiffs after being convinced by Jones that the plaintiffs had made up the story about their children being killed reasonably foreseeable by Jones? I don’t think there is any doubt that Jones would easily have foreseen that his blindly loyal followers would act on his false and defamatory statements by going after the plaintiffs.
4. Today, Judge Andrew Napolitano, for whom I have the highest respect, published an article in which he stated that Jones’s statements are protected by the principles of free speech because he was only expressing an opinion. Napolitano is correct with respect to the general rule, which is that the expression of an opinion is shielded from an action for libel or slander.
However, what Napolitano failed to acknowledge in his article is that there is an exception to that rule. The exception is as follows: If an opinion incorporates a defamatory statement of fact, the opinion defense goes out the window and the person is subject to a suit for libel or slander.
Jones’s unequivocally stated that the plaintiffs had made up their story about having lost their children in a gun massacre. That statement was false and clearly defamatory. Therefore, under the defamatory statement exception to the free speech/opinion doctrine, the trial judges both in Texas and in Connecticut rightfully denied Jones’s motions to dismiss.
For a more detailed and fairly easy-to-read exposition of this principle, including the defamatory-statement exception to the opinion defense, see the following article: “The Opinion Defense: Can a Statement of Opinion Be Defamatory?“
5. Finally, I received an email from an FFF supporter who informed me that he was never again going to support FFF because of my articles on Alex Jones. In a subsequent email, he stated the following:
No children were killed at Sandy Hook. The families involved lied to the American people for $$$. They are despicable. I don’t know what is alleged against Jones regarding the families, but they are the guilty parties in this case. I did not follow the trial – like I don’t read the National Enquirer.
Needless to say, I was stunned. I responded by informing him that Jones himself had disavowed his own conspiracy theory during the Connecticut trial and even had issued an apology for what he had done. I also sent him an article showing photographs of each of the children who were killed at Sandy Hook.
His response to me:
I thought you were sending me pictures of dead children. Those children look alive to me. Show me the evidence of dead children at the scene. You won’t be able to. I don’t believe this is the Jacob Hornberger I’ve read for years. Something is fishy, like there is a gun to your head. I don’t believe Jacob Hornberger holds the views expressed here. He has been compromised like Jones and scores of others.
This man’s mindset is reflective of many of Jones’s supporters, who are clearly ready to blindly follow him and his baseless, false, defamatory, and despicable statements. It reminds me of the followers of Jim Jones. No, not Alex Jones. Jim Jones. At the next gathering of Alex Jones and his followers, his followers might want to think twice about drinking what he instructs them to drink.
Finally, for me one of the most fascinating aspects of this controversy is the refusal of many of Jones’s followers to condemn or even mildly criticize what he did. It’s one thing to object to how the trials were handled or the size of the jury verdicts. But to remain silent or even supportive of Jones’s horrific, despicable, and shameful conduct only goes to show the moral degeneracy of some right-wingers.
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