March 27, 2017

Well, this is interesting. Alex Jones - founder and face of Infowars - has “apologized” on air and in a writtten statement to James Alefantis, owner of Comet Ping Pong, the D.C. restaurant falsely implicated in the “Pizzagate” hoax.

I won’t dignify the Pizzagate story with a description here. It’s gross and absurd and false, so, if you must read about it, you can find it here. It is still alive today in some circles.

Instead, as I have in prior columns here at C&L, I want to focus on what Mr. Alefantis could do to make himself whole in the aftermath of Pizzagate. And make no mistake: he has been injured. Mr. Alefantis and his business were defamed; his workers and customers at Comet Ping Pong were physically endangered when a man with a gun - aroused by reports about the fake Pizzagate stories - fired into the restaurant.

There are a few interesting aspects to Jones’s on-air “apology.” They relate to Alefantis’s ability to sue Jones - more specifically, in what capacity Alefantis might sue Jones, and whether he might win a suit.

First, Jones’s “apology” - written by his lawyers, unless I’m an incompetent analyst of text and syntax - paints Mr. Alefantis as a “public figure.” Early in Jones’s statement, he refers to Alefantis as “...a prominent individual who has been mentioned as a power player in Washington.”

This is entirely tactical. If Mr. Alefantis were to sue Infowars and Jones - and any of the other promoters of the Pizzagate canard, the defendants are less vulnerable if Alefantis is classified legally as a “public figure.” He’d fall into one of the categories of defamation-targets who have to meet a higher standard of proof than the ordinary private citizen. Instead of proving merely negligent or intentional defamation, Alefantis would have to prove that his defamers acted with “actual malice” - publishing false allegations while knowing their falsity or publishing them in reckless disregard of their falsity.

Unfortunately for Mr. Alefantis, it appears he might be classified as a “public figure.” He was not unknown to the general public before the Pizzagate hoax surfaced: for example, GQ named him as one of the 50 most powerful people in Washington D.C. in 2012. In this first respect, therefore, it seems possible that it might be harder rather than easier for Alefantis to sue Jones successfully for defamation.

Second, it appears that Jones might be using his “apology” to attempt to trivialize his slurs as merely a mildly stated opinion that further investigation of Alefantis was warranted:

The volume of stories was substantial, generating national headlines and came to be known across the country as “Pizzagate.” We at Infowars became part of that national discussion. We broadcast commentary about the allegations and the theory that the emails contained code words. We raised questions about information in Mr. Podesta’s emails and the Comet Ping Pong restaurant. We believed at the time that further investigation was necessary.

This appears to be an attempt to characterize whatever garbage Infowars published as this: “We at Infowars didn’t believe or know or assert that Alefantis was trafficking children for sex, but, golly, we just thought an investigation was necessary.”

In other words, according to Jones, there’s “raising questions” and “RAISING QUESTIONS!!!!!!!” Jones wants to call his the lower case-case kind of questions.

I suppose here that Jones and Infowars are trying to distance themselves from the allegations, but that might be legally pointless and provably laughable.

The allegations were all over Infowars’s website and associated media for months - as Jones tells his viewers, listeners, and readers in his statement (perhaps unwisely, given that the statement would be introduced in trial as evidence of the expansive and repeated extent of Infowars’s broadcasting the defamation):

In late February of 2017, we received a letter from Mr. Alefantis asking that we retract certain statements that he says were made in seven of our broadcasts between the last week of November and the first week of December in 2016….

Months ago, we took down the majority of broadcasts and videos including ones that only passingly mentioned Pizzagate. This happened months before we were even contacted by Mr. Alefantis. Mr. Alefantis objected to portions of seven particular radio/TV broadcasts. We have taken down those seven broadcasts and we have attempted to take down any broadcasts that mentioned Mr. Alefantis or Comet Ping Pong. We have attempted to do so not just on our website but also on social media sites such as our YouTube channel.

Unfortunately for Jones and Infowars, I don’t think they’d easily convince a jury that their interest in Pizzagate was minimal and transitory. And it doesn't appear that they've successfully scrubbed Infowars's platforms: "...we have attempted..." appears twice in that last paragraph.

Even before a lawsuit, I would think that Mr. Alefantis’s lawyers would try to calculate just how many times Infowars broadcast stories about the Pizzagate hoax, identify all the links and multiple platform appearances on Infowars of the hoax, estimate how many clicks Infowars might have gotten for them, and - importantly - find any remaining Pizzgate slurs on Infowars's virtual landscape.

And, if Mr. Alefantis did file suit, I expect his lawyers would subpoena the former Infowars “reporters” who wrote the Pizzagate stories. His lawyers would depose them to find out what kind of editorial supervision and direction they had when they researched and wrote their Pizzagate stories - if any. It’s going to be difficult for Jones and Infowars to contend credibly that they ever-so-lightly touched on this topic before moving quickly on to other matters.

Third, you might have noticed that every time I’ve used a variant of “apology” here, I’ve put it in quotes. That’s because Jones can’t quite bring himself to simply apologize and move on. He apologizes and then un-apologizes. For legal reasons, he must.

Jones starts here:

In our commentary about what had become known as Pizzagate, I made comments about Mr. Alefantis that in hindsight I regret, and for which I apologize to him.

Well done, Mr. Jones! Very gracious! Case closed!

But wait, there’s more! In the vein of not-really-apologizing, Jones continues.

We were participating in a discussion that was being written about by scores of media outlets, in one of the most hotly contested and disputed political environments our country has ever seen. We relied on third-party accounts of alleged activities and conduct at the restaurant. We also relied on accounts of reporters who are no longer with us. This was an ever-evolving story, which had a huge amount of commentary about it across many, many media outlets.

As I have said before, what became a heightened focus on Mr. Alefantis and Comet Ping Pong by many media outlets was not appropriate. To my knowledge today, neither Mr. Alefantis, nor his restaurant Comet Ping Pong, were involved in any human trafficking as was part of the theories about Pizzagate that were being written about in the media outlets and which we commented upon.

I want our viewers and listeners to know that we regret any negative impact our commentaries may have had on Mr. Alefantis, Comet Ping Pong, or its employees. We apologize to the extent our commentaries could be considered as negative statements about Mr. Alefantis or Comet Ping Pong, and we hope that anyone else involved in commenting on Pizzagate will do the same thing.

After starting out with what might almost amount to a simple apology (“I made comments about Mr. Alefantis that in hindsight I regret, and for which I apologize to him.”) Jones winds up in Nopology-City: “We apologize to the extent our commentaries could be considered as negative statements…

This, too, is tactical. It can be read in conjunction with this later part of Jones’s statement: “In issuing this statement, we are not admitting that Mr. Alefantis, or his restaurants, have any legal claim. We do not believe they do.”

In other words, Jones is saying only that “We’re sorry if anyone misconstrued our entirely innocent statements of opinion as defamation, and, by the way, no one suffered any legally compensable injury as a result of our mere opinions.”

Of course, Jones has to say this. If he wants to avoid writing a check to Mr. Alefantis, Jones can’t admit that Alefantis suffered any injury to his reputation.

In my last column here, I suggested that our former President might have a legally cognizable basis to sue Breitbart for defaming him concerning baseless allegations from the Current Occupant (White House) about wiretapping.

I believe that is true here - perhaps more so. Unlike President Obama, Mr. Alefantis, while arguably prominent in D.C., is essentially an innocent private bystander and collateral damage in the right-wing War on Fact. His customers might have been injured or killed by a gunman animated by the Pizzagate stories.

And, while I ardently support protection of our free press and free speech, I also believe we’d all be better off if we actually did drain one specific swamp - the right-wing media-bog - or at least got them to abide by conventional journalistic principles of research, editing, and reporting. And, in turn, this might create fewer opportunities for politicians and spokesmen to evade responsibility for peddling and profiting from this garbage by saying, "Well, I'm merely repeating what I read in that fine online publication!"

That’s why our system of laws allows defamation lawsuits, even in light of our First Amendment. Defamation lawsuits can deter defamation.

If the right-wing media and their meat-puppet politicians want to operate a reputational wrecking ball in the public square, they better have a permit and they better operate within legally acceptable limits. When they don’t, when they injure private citizens’ reputations and physically endanger the public by broadcasting inflammatory garbage, and whether they’re driven by ideology, delusion, click-greed or any combination, they should suffer the consequences. And they should be painful.

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