Fight against misinformation tests the limits of defamation law in U.S.

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Diego Rodriguez sits behind a microphone, gazes into the camera and delivers his recounting of an event that, he says, reveals a frightening reality about U.S. authorities and the trafficking of children.

His grandson was briefly taken into custody by Idaho police for health reasons in March, 2022, after medical authorities determined he “was suffering from severe malnourishment.” Ever since, Mr. Rodriguez has worked alongside Ammon Bundy, a prominent Idaho anti-government extremist and former gubernatorial candidate, to turn the case into a cause for action – and money.

Together, the men have spent more than a year spreading accusations about the U.S. child-protective system and the individuals involved in it, including St. Luke’s Health System, an Idaho health provider that cared for Mr. Rodriguez’s grandson in custody. The grandfather now calls St. Luke’s an accomplice to kidnapping, “very wicked and ungodly.”

You may think, he says in a video posted earlier this year, that those who steal kids for profit are “shady drug cartels smuggling kidnapped children across the border to be sold off to the rich elite.” In reality, he says, it is child-protection services that constitute “the greatest source of child trafficking, even sex trafficking, in America.”

Mr. Rodriguez’s grandson was returned to the family in a week. But the accusations have continued for more than a year, even as a lawsuit against Mr. Rodriguez and Mr. Bundy has made them into a new test of the limits of U.S. courts to constrain misinformation and disinformation. St. Luke’s and several of its employees are suing Mr. Bundy and Mr. Rodriguez, accusing them of “launching a knowingly dishonest” smear campaign.

Defamation law has become an increasingly potent legal tool in U.S. battles with misinformation, used against Fox News, Donald Trump and Alex Jones, the radio personality and conspiracy theorist. Lawyers have likened defamation lawsuits to legal action against manufacturers of shoddy products, a method of enforcing responsibility for the effects of speech.

Erik Stidham, a lawyer for St. Luke’s, calls Mr. Bundy and Mr. Rodriguez “conflict entrepreneurs.”

Their rhetoric, Mr. Stidham says, amounts to a grift designed to bring in money by provoking outrage, convincing followers that St. Luke’s and others are “kidnapping Christian babies to give to homosexual parents for money – and then the children are being abused sexually.”

Mr. Bundy and his supporters have protested, flooding call lines with messages, including death threats, making it difficult for other patients to seek care. An armed demonstration last March caused the largest hospital in the state to go into lockdown.

“They clearly are using information that is false for the purpose of harming us and our providers,” said Christine Neuhoff, chief legal officer for St. Luke’s, the largest private employer in Idaho.

Elsewhere, defamation suits have seen success. A suit against Mr. Jones, who called the killing of children at the Sandy Hook elementary school a hoax, yielded judgments in excess of US$1.4-billion. Mr. Trump was found liable earlier this month for US$5-million and Fox News settled with Dominion Voting Systems in April for US$787-million.

But their effects have been less clear.

Mr. Jones declared bankruptcy and continues to broadcast his show six times a week – “when you support us, we’re unstoppable,” he tells viewers. Fox News has not apologized for the mistruths it aired about Dominion’s voting machines. Mr. Trump has continued to publicly mock the woman who, a jury found, he sexually assaulted and then defamed.

In Idaho, meanwhile, the suit against Mr. Bundy and Mr. Rodriguez has put on display some of the limits of a civil process like defamation in seeking accountability.

Mr. Bundy has a history of armed standoffs with authorities. He has refused to appear in court and rebuffed efforts to serve him with papers related to a civil arrest warrant issued by a judge in the St. Luke’s case.

Earlier this month, St. Luke’s filed new court papers alleging that Mr. Bundy has been hiding assets. He has denied the allegation.

Mr. Bundy has already lost on several counts. In January, he pleaded guilty to trespassing on St. Luke’s property, agreeing to a year of unsupervised probation and US$1,157 in fees. In April, the judge issued a default judgment against him. A hearing on damages has not yet taken place.

But none of it appears to have altered the commentary from Mr. Bundy and Mr. Rodriguez, who say they have a right to express their views.

In a virtual town hall earlier this month, Mr. Rodriguez spent 94 minutes naming and shaming some of the people involved in the action against his grandson. Mr. Rodriguez called doctors delusional “mini tyrants.” He called police liars and perverts. He has accused St. Luke’s lawyers of perjury and threatened a judicial misconduct complaint against the judge in the case.

“Government-subsidized child trafficking,” he said, is a “sin as great and severe as abortion.”

Mr. Bundy, meanwhile, has issued statements that could be seen as threatening.

“I think it would be wise if you would just back away from this,” he said in a recent video, adding: “What I’m not going to allow is you to take everything that I have plus my life or my freedom.”

Successful defamation cases in the U.S. turn on being able to prove that statements were made with actual malice, and Mr. Bundy is “a walking case of malice,” said Jim Jones, a former chief justice of the Idaho Supreme Court who is a vocal critic of the far right in the state. Defamation can also allow for collection of large punitive damages.

But, if “you have all of your assets hidden and the hospital is going to have a heck of a time collecting anything anyway, there’s not a lot of disincentive to Bundy to get him to shut his trap,” Mr. Jones said.

Devin Burghart, director of the Institute for Research and Education on Human Rights, is more optimistic. Defamation “has become an avenue by which to try to curb the excesses of the far right in terms of their threats: doxxing, harassment of individuals and trying to curb some of those impacts,” he said. Mr. Burghart’s institute has done extensive research on Mr. Bundy and has been paid for expert testimony in the defamation case.

Still, Mr. Stidham acknowledged that there are limits to what can be achieved.

“I do think that damages and exposing what they said as lies will have an effect,” he said. “Now does that mean Ammon Bundy might continue to lie? Sure. But the alternative to not fighting back is much worse – and we have a prospect of pushing back and exposing the man for what he is.”