“Congress shall make no law abridging … the freedom of speech.” — First Amendment to the Constitution
The iconic language of the First Amendment can be recited by schoolchildren, yet it is ignored by judges in Connecticut when the speech has been uttered by Alex Jones.
Since the modern interpretations of the First Amendment began in the late 1960s, opinions on matters of public interest have been protected speech, so long as some reasons for the opinions were articulated. The reasons can be inaccurate, and the opinions can be wild, bizarre or irrational. But if it is an opinion, it is protected speech — except in Connecticut and if the speaker is Alex Jones.
Here is the backstory.
The tragedy of Sandy Hook — in which a young madman used his parents’ rifle to slaughter 20 schoolchildren and six adults before killing himself — is a lifelong horror for the surviving family members and their friends. It is also a matter of public interest implicating the right to keep and bear arms, school security, mental health and free speech.
When the First Amendment was ratified, America was a bold experiment in personal liberty. Yet the First Amendment restrained only Congress. After the Civil War amendments were added to the Constitution, the courts interpreted the 14th Amendment so as to apply the First Amendment to the states as well.
Stated differently, in modern free speech jurisprudence, the First Amendment prohibits all branches of government — legislative, executive and judicial — and all governments — local, state and federal — from interfering with or punishing free speech.
If the First Amendment were repealed, would we have free speech?
Those who believe that the law is only what is written down — called positivism — would say no. Those who believe that our immutable rights come from our humanity — called natural law theory — would say that we are naturally free whether the Constitution recognizes it or not. We all need to recognize the dangers of a state judiciary that writes down a negation of a fundamental liberty — expressing an opinion — by calling it a non-opinion.
That’s what happened to Alex Jones.
After the Sandy Hook massacre, Mr. Jones declared that it did not happen as the press and the government related it; that it was a setup by anti-gun activists using actors and props. He persisted in this and offered snippets of odd behavior by the participants in order to cast doubt on the official version of events. The government lies all the time, he argued.
His speech was absolutely protected under modern jurisprudence.
The controlling Supreme Court case is Brandenburg v. Ohio, which teaches that all innocuous public speech about matters of public interest is absolutely protected — even opinion, allegory and satire — and all speech is innocuous when there is time for more speech to challenge it. When the parents of the murdered children sued Mr. Jones for defamation and mental distress, Mr. Jones moved to dismiss the complaints.
When a motion to dismiss is filed, the courts must rule quickly on the law. They must answer the question: Assuming all the allegations are true, does the complaint state a valid, lawful, constitutional claim? The judge to whom these cases were assigned did not rule quickly. She improperly ordered discovery — an exchange of documents between the litigants — prior to ruling on the motion to dismiss.
This was a cardinal error and utterly unnecessary as, in a motion to dismiss, the judicial mind assumes that discovery will show that the plaintiffs’ allegations are supported. When the plaintiffs’ attorneys claimed that they found child pornography among the digitized documents that Mr. Jones’ attorneys had sent them, Mr. Jones accused the plaintiffs’ attorneys of planting it.
The court was so outraged — not at the presence of child pornography but at Mr. Jones’ allegations about the plaintiffs’ lawyers — that it summarily denied Mr. Jones’ motion to dismiss by ignoring the teaching of Brandenburg and doing George Orwell one better by characterizing Mr. Jones’ opinions as “non-opinions.”
When Mr. Jones declined to supply more discovery than he actually had, this same judge ruled as a matter of law that Mr. Jones’ non-opinions had harmed the plaintiffs, and the only issues remaining in the cases addressed the amount of damages Mr. Jones owed them. In a tendentious opinion, more conclusory than reasoned, the Supreme Court of Connecticut agreed.
Thus, Mr. Jones’ two recent trials addressed his wealth, not his liability. He was ordered to pay more than $1 billion.
This is a profound injustice to Alex Jones and to all who are engaged in the opinion business, and it begs for a reversal.
If the First Amendment means what it says, if no government can abridge the freedom of speech, if the 14th Amendment means what it says and the states may not take anyone’s life, liberty or property without due process, if due process means a fair ruling on the merits, then Alex Jones has not had his day in court, and the courts in Connecticut — where his judicial demonization was met with public approval — have emasculated his basic constitutional rights.
In all other states, expressions of opinions on matters of public interest are absolutely protected as natural rights and viewed as a means of challenging those discussing all sides of public issues. Only in Connecticut has a court system summarily — without a trial and in defiance of precedent — declared an opinion to be a non-opinion, thereby stripping a litigant of his natural and constitutionally guaranteed rights.
For those who value freedom, this is a time to recall Voltaire: “I disagree with what you say, but will defend to the death your right to say it.” Alex Jones has the largest viewership in the podcast world — larger than the television networks. Now we know what government does to silence its most effective critic.
• Andrew P. Napolitano is a former professor of law and judge of the Superior Court of New Jersey who has published nine books on the U.S. Constitution.