Is there a difference between the persona we offer to the world and the person we truly are? That question is as old as philosophy, poetry or adolescence. But here’s a modern American twist: What’s the legal difference between the personas we offer to the world and our true selves? This week, infamous conspiracy theorist Alex Jones has been exploring that subject in a Texas courtroom as he resists his ex-wife’s attempt to secure full custody of their children.
A talk-radio host, Jones runs the alarmingly popular conspiracy websites InfoWars.com and PrisonPlanet.com. His star rose dramatically during the rumor-fraught 2016 presidential campaign. He is known for proclaiming that the Sandy Hook school shooting was a government false-flag operation, questioning the “official story” about 9/11, taking off his shirt on camera at odd intervals and (recently) receiving effusive praise from President Trump.
His ex-wife’s lawyers have used his antics to paint him as a demonstrably unstable parent. Jones has made this easy for them lately by challenging actor Alec Baldwin to a cage match and, in a rant peppered with profanities and anti-gay slurs, threatening to beat up Democratic Congressman Adam Schiff. Both times Jones was reacting to criticism of Trump, whom Jones regards with a childlike reverence.
If all those details seem to add up comfortably to “unfit dad,” Jones’ attorneys have a counterclaim: The “Alex Jones” of talk radio and InfoWars.com is a character, not a real person. He’s a “performance artist,” argued attorney Randall Wilhite, and judging his stability based on that performance would be like judging Jack Nicholson based on his portrayal of the Joker in “Batman.”
In the era of infotainment, the difference between public character and private reality matters.
Jones’ lawyers hope to convince the jury that the “real” Alex Jones is a regular guy and a good dad, nothing like the incendiary conspiracy theorist he plays on the air. They face an uphill battle. Jones, among other things, pulled his signature take-off-the-shirt-for-emphasis move in a family therapy session and claimed in a deposition that he could not remember details about his children because he had eaten a bowl of chili for lunch.
But Jones’ argument is not new, and it could work. In the era of infotainment, where increasingly vivid characters deliver opinion and “news” to Americans, the difference between public character and private reality matters. It mattered to wrestler and media personality Hulk Hogan, whose real-person name is Terry Bollea. Bollea sued Gawker Media for invasion of privacy for publishing a surreptitiously recorded sex tape. Gawker asserted that Bollea had indulged in so much public sexual braggadocio that he had no sexual privacy left to invade. But Bollea countered that it was his public character, Hulk Hogan, who engaged in the sexual banter, and that Gawker had invaded the privacy of his private persona. He prevailed, winning $115 million and bankrupting Gawker in the process.
Fellow excitable talk-radio host and conspiracy theorist Michael Savage was less successful with the same argument. After the Council on American-Islamic Relations published clips of Savage’s anti-Muslim rants in fundraising messages, Savage sued, claiming that CAIR was treating a persona embodying “American rage” as the real Savage, and unfairly painting the real Savage as a racist. The federal court was unimpressed and dismissed the suit.
Trump, on the other hand, has benefited from a variation on the argument. Last January, a New York judge dismissed a suit against him, rejecting political strategist Cheryl Jacobus’ claim that Trump defamed her on Twitter by suggesting that she had begged for a job. Trump’s Twitter persona, the judge found, was far too bombastic to be taken literally, as defamation requires. The president’s Twitter character deals in “vague and simplistic insults,” “deflecting serious consideration.” Because no reasonable person would accept that character’s insults as statements of fact, the judge ruled, they weren’t defamatory.
This legal rift between public and private personas would be confusing enough if it applied only to celebrities. But in the Internet age, it can apply to anyone, with potentially chaotic results. In Dallas, Babak Taherzadeh is charged with felony stalking for a series of alarming Twitter comments about Judge Brandon Birmingham, who oversaw one of his cases. Taherzadeh claims that his comments can’t be taken as true threats because he was playing an online character, not speaking literally. In other words, his defense is that he’s a troll. It may have been difficult for Birmingham to tell the difference when Taherzadeh was tweeting ominously about his family.
Legally, the “I was playing a character” defense will necessarily depend on the facts of each particular case. Morally, judgment should be harder to evade. Jones’ promotion of Sandy Hook conspiracy theories has led to harassment and pain for the parents of murdered children. They’ve been barraged with abusive communications from Jones’ rabid fans accusing them of fabricating the existence of their children and participating in a conspiracy to deprive Americans of their 2nd Amendment rights. Their pain is the same whether Jones is sincere or just in it for the money.
The Rule of Goats applies. Slightly paraphrased — for this family newspaper — the rule states: If you kiss a goat, even if you say you’re doing it ironically, you’re still a goat-kisser. Alex Jones, playing a character or not, is a goat-kisser.
Ken White is a criminal defense attorney and 1st Amendment litigator at Brown White & Osborn LLP in Los Angeles.
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