While they acknowledged that the protection of speech is “a priority of the first order,” the First Amendment scholars, from institutions like Rutgers University and the University of Chicago Law School, noted that since the Middle Ages defamation law has created “social boundaries about what speech is and is not acceptable.” It has also, they wrote, long sought to balance the freedom of expression with the safeguarding of people’s reputations.
To do this, the scholars said, defamation statutes have always restricted some speech — especially for private figures like Mr. Gilmore, who have less of an ability than those like Mr. Jones with media platforms to “disseminate their own side of the story.”
The scholars were particularly scathing when it came to Mr. Jones’s contention that his videos on Infowars reflected nothing more than his beliefs. It would set a dangerous precedent, they said, if Judge Moon ruled on his behalf.
“It would allow unscrupulous news organizations to couch their language as ‘opinion’ and to mask their meaning with implication and insinuation,” the scholars wrote. That, they added, would leave “readers clear as to the message but avoiding all liability for defamatory remarks. This should not be allowed and, in fact, is not allowed.”
The law professors who signed the amicus brief were Lyrissa B. Lidsky, dean of the University of Missouri School of Law, Tamara R. Piety at the University of Tulsa College of Law, David A. Strauss from the University of Chicago Law School, and Carlos A. Ball of Rutgers.
The brief was also signed by Michael B. Hissam, a lawyer at the firm of Bailey & Glasser in Charleston, W.Va., who is amicus counsel for Mr. Gilmore, and Katharine M. Mapes and Katherine O’Konski, lawyers at the firm of Spiegel & McDiarmid in Washington.