Part 1: Tuesday at the Trial: Just the Facts
Lenny Pozner’s defamation suit against Jim Fetzer concluded Tuesday, October 15, day two of the penalty phase of the trial. (Disclaimer: I have been friends with Jim since 2006, and though I don’t always agree with him, I respect his courage and sincerity. It was an honor to have lunch with him on this, the most critical day of the trial.)
Pozner won the first phase last June when the court determined that four of Fetzer’s statements alleging a fake death certificate for Noah Pozner were defamatory; then on September 13 Fetzer was found in contempt of court for sharing images of Pozner’s deposition. Fetzer argues that he shared the images, which the court had deemed confidential, as part of his legal defense research. Fetzer claims the images show that the Lenny Pozner in the deposition is not the same person depicted in at least some previous publicly circulated images of Lenny Pozner.
Pozner asked for one million dollars in damages from Fetzer. The jury’s job was to determine an award amount, which theoretically could range anywhere between zero and one million dollars. After almost four hours of deliberation, the jury returned a verdict of $450,000 in damages.
The penalty phase of the trial began Monday with opening arguments and a lengthy videotaped deposition of a forensic psychologist, who asserted that Pozner suffers from PTSD as a result of Fetzer’s four defamatory statements. The forensic psychologist, who was presumably hired by Pozner’s legal team, predictably supported Pozner’s narrative: After suffering the loss of his son Noah at Sandy Hook, Pozner says, he experienced PTSD for more than a year, only to have his recovery cut short, and his symptoms exacerbated, by his discovery that online Sandy Hook skeptics were claiming that the school shooting was a hoax in which nobody died. Since then, Pozner says, he has been waging an online battle against Sandy Hook skeptics (he calls them “hoaxers”) which has kept him mired in PTSD. Much or most of the suffering he has experienced, Pozner suggests, is the fault of Jim Fetzer, whom Pozner and his lawyers are casting as the kingpin and prime inspiration of the Sandy Hook skeptics’ movement.
Fetzer’s legal team questioned the “Fetzer caused my PTSD” claim. While acknowledging that Pozner would have suffered PTSD from the loss of his son in December 2012, they suggested that it was not entirely Fetzer’s fault that Pozner has been re-traumatizing himself by spending much of his time since 2014 combing the internet for material that he says traumatizes him and trying to get it removed. Fetzer’s team’s cross-examination of the psychologist pointed out that normally PTSD sufferers avoid stimuli that reawaken the trauma.
The afternoon session featured back-to-back testimony from Lenny Pozner and Jim Fetzer, both called to the stand and questioned by the plaintiff’s (Pozner’s) lawyers. In front of a huge, adorable Noah Pozner picture projected on the screen, Lenny Pozner recounted dropping off his son Noah at Sandy Hook Elementary School on December 14, 2012. He described seeing his son’s body at the funeral a few days later. He said that in 2014 he encountered the online claims of Sandy Hook skeptics and tried to engage with them in a cordial and transparent way, but soon began to feel harassed and increasingly upset at their claims that his son Noah had never existed. He said he has persistently tried to get such claims removed from the internet as a way of defending his son.
Below are reconstructions from my notes on Pozner’s testimony. The notes were cut short by a bailiff ordering me to shut down my laptop, since I was not one of the two mainstream journalists who had been approved for electronic devices.
Noah was a twin to my youngest daughter. The last time I saw Noah would have been on the morning of December 14. I dropped my three kids off at the car line.
(At the funeral) his forehead was the only part that was not covered (due to injuries).
I became aware of Mr. Fetzer in mid-2014. (Asked if he had read Jim Fetzer’s edited book Nobody Died at Sandy Hook): No, I haven’t read the book, just the parts about me.
I felt it said a lot of ugly things. I wanted to defend my son. I needed to be his voice. (Answering question): I’m concerned for my safety, my family’s safety. I’m concerned for my children’s future, how they could be treated.
I was concerned someone would do something…something bad.
(Asked why he thought Fetzer’s four defamatory statements had damaged his reputation): It causes people to believe I lied about my son’s death, that my son didn’t die….
(Asked how he has been affected in terms of fearing contact with people):
I’m very cautious about what I reveal…I never know how people might react…people might accuse me of being this villain that Mr. Fetzer portrayed me to be.
(Asked whether he held Jim Fetzer responsible for the criminal acts of Lucy Richards, who left obscene, threatening messages on Pozner’s answering machine):
Lucy Richards was sentenced to prison for making death threats against me. (But why hold Fetzer responsible?) It was the way she said what she said, and the way she talked about Noah, and about me…she accused me of faking my son’s death, hiding my son, that he’s not really dead. Part of her sentence is she’s not supposed to read (Fetzer’s) website.
Jim Fetzer, called to the stand by the plaintiff’s lawyers as a hostile witness, was questioned about his responsibility for the four allegedly defamatory statements, all of which involved claims that the copy of Noah Pozner’s death certificate circulated by Lenny Pozner in 2014 was inauthentic—claims Fetzer still argues were accurate. Fetzer said that he (and in some cases collaborators including co-authors, editors, and publishers) were indeed responsible for publishing those statements, which were not defamatory, but truthful. Dane County Circuit Judge Frank Remington immediately ordered the jury out of the room and admonished Fetzer that the court had already ruled that those statements were defamatory and that no further impugning the findings of the court would be tolerated. When the jury filed back into the courtroom, Judge Remington ordered them to ignore Fetzer’s statement.
Toward late afternoon the defense decided not to call two witnesses, Tony Mead and Kelley Watt, who had traveled from Florida to testify. Both sides offered closing arguments.
Though I missed the closing arguments (I had to pick up my wife after a dental appointment) a friend and colleague who wishes to remain anonymous summarized them for me. What follows is based on what my source, who was present in the courtroom as a spectator, recounted afterward.
Pozner’s attorneys made broad emotional appeals, saying Pozner has experienced pain and suffering due to losing his son and then having the wounds re-opened by his battles with online Sandy Hook skeptics whose ideas, they claim, are derived from Fetzer’s book and web postings.
Fetzer’s attorneys argued more narrowly on two key issues. They asked why the psychologist expert witness who diagnosed Pozner with Fetzer-induced PTSD did not estimate any monetary damages from that PTSD. Nor, in fact, did Pozner or his legal team. No claims were made about the dollar value of any losses in earning ability Pozner may or may not have suffered. There was no claim whatsoever of any loss of income or medical bills.
Fetzer’s team also argued that Pozner’s side had not presented any convincing evidence supporting the claim that Fetzer’s defamatory statements about the death certificate had caused Lucy Richards or any other unstable Sandy Hook skeptic to harass Pozner; no evidence was presented that the harassers even read Fetzer’s defamatory statements, much less acted on them.
Fetzer’s lawyers reminded the jury to set aside their personal feelings and emotions: They shouldn’t decide on the basis of whether they like or dislike Fetzer or agree or disagree with him. Damages are not supposed to be emotional or punitive, Fetzer’s attorneys said, but are only related to actual dollar-value loss (which had not been demonstrated).
The jury retired to consider their verdict. A few hours later, well into the evening, they ordered pizza. A few mainstream journalists, including a New York Times reporter, remained in the courtroom to await the verdict. The jury returned the verdict after about four hours of deliberation:
Part 2: The Opinion Piece (Assuming We Are Still Allowed to Have Opinions)
Tuesday was the final day of Jim Fetzer’ defense against Lenny Pozner’s libel lawsuit. I attended and published a “just the facts” report that evening (republished with minor changes above). At almost the same moment I published my initial report, the jury came back with a verdict awarding close to half a million dollars to Lenny “Jim Fetzer gave me PTSD” Pozner.
Now it’s time for an opinion piece. And as much as I sympathize with Mr. Pozner, assuming his account is accurate, my opinion is that Jim Fetzer got a raw deal…and that the reverberations of this case will be disastrous unless it is overturned.
The whole courtroom drama was carefully scripted and controlled to ensure that the jury, as well as onlookers and reporters, got to hear only one side of the story. Fetzer was never allowed to present his defense.
Jim Fetzer’s defense is simple: Truth is an absolute defense against libel, and Fetzer published statements alleged by Posner to be libelous because he believed them to be true. What’s more, he still believes them to be true. Whether he is right I do not know. But I do know he is sincere in his beliefs.
I watched Jim Fetzer take the stand, swear to tell “the truth, the whole truth, and nothing but the truth”—and then watched him silenced and admonished, and the jury hurriedly chased out of the room, when he tried to speak the truth as he saw it. Jim merely said he still believed his “libelous” statements were true. Asserting the contrary would be a lie. Not saying anything would be a lie by omission. So he was admonished and threatened by the court for the sin of not lying on the witness stand!
As I understand it, at no point during the two phases of the trial was Jim Fetzer ever allowed to present to a jury the evidence that led him to believe that Sandy Hook was an Operation Gladio style psy-op (which those who have read Daniel Ganser’s NATO’s Secret Armies know is entirely plausible) and that there was no actual school shooting (which does seem farfetched, but stranger things have happened). How could he present a truth defense without showing the evidence that led him to believe his allegedly libelous statements were in fact truthful?
According to the 7th Amendment of the Constitution:
IN SUITS AT COMMON LAW, WHERE THE VALUE IN CONTROVERSY SHALL EXCEED TWENTY DOLLARS, THE RIGHT OF TRIAL BY JURY SHALL BE PRESERVED…
Yet as I understand it—and perhaps someone can correct me in the comments if I am wrong—Jim Fetzer was never given the right of trial by jury to determine whether he had or had not committed libel. Instead, an obviously biased judge presided over that crucial first phase of the case, denying Jim’s Constitutionally-guaranteed right to a trial by jury. The same judge prevented Jim from presenting his truth defense, which would have entailed giving Jim full scope to present the evidence that led him to believe his statements were truthful and therefore not libelous.
It was only in the second, penalty phase of the trial that a jury was convened. And during that phase, not only was Jim prevented from presenting his truth defense to the jury, he was prohibited from even mentioning it, or from telling the truth about his beliefs.
Meanwhile the Pozner team was allowed to engage in shameless emotional manipulation of the jury. They even projected a huge adorable picture of Noah Pozner on the screen as the backdrop to the crucial back-to-back testimony of Lenny Pozner and Jim Fetzer! (Jim Fetzer, of course, was not allowed to use the big screen to project images that raise questions about the official story of Sandy Hook—images that can be found in Nobody Died at Sandy Hook, but which were, along with all other evidence supporting Fetzer’s truth defense, in essence banned from the courtroom.)
One of the most dangerous repercussions of Pozner-vs.-Fetzer is its potential chilling effect on free speech. The decision awarded more than half a million dollars in “damages” based on the premise that a book presenting an alternative interpretation of a historical event hurt someone’s feelings. There was no tangible connection between the “libelous” statements in the book and any actual damages—loss of income, medical bills, etc. It was all about emotions: “This tearjerking Hollywood-style courtroom spectacle has whipped us into tearful sympathy with Pozner and two minutes of hate for Fetzer. Let’s express our emotions with a damage award.”
Following the court’s logic, if a German-American’s feelings are hurt by a book portraying Germans as villains in World War II, why not sue the author for libel and ban the book? Why not drag the author into court—and refuse to allow him to present the reasons he thinks his anti-German interpretation of World War II is truthful? Of course that would never happen, since popular prejudices are in sync with hatred of Germany’s mythic villainy; the court would find ways to rig the process to support the popular prejudice.
So how about these more plausible examples: African-American plaintiffs sue publishers for hurting their feelings by publishing 19th-century texts that include libelous portrayals of blacks; the grandson of Lyndon Johnson sues authors who have hurt his feelings by arguing that LBJ participated in the JFK assassination coup; a father who lost a son in Iraq sues an antiwar author for hurting his feelings by asserting that the invasion of Iraq was a criminal war based on lies and that his dead son was a war criminal.
One can imagine an almost infinite number of possible “libel” cases along these lines. And while only a few are likely to actually happen, that is a few too many—because the chilling effect of such lawsuits will terrorize authors and publishers into avoiding controversial or unpopular historiography. This is precisely what the Bill of Rights, whose purpose is to protect controversial and disturbing speech about matters of public import, is supposed to prevent.
I have had my differences with Jim Fetzer on many issues, including Sandy Hook. Specifically, I think we should be very careful about asserting or insinuating “nobody died” theories about suspected false flag events, for reasons that should by now be obvious.
But this is bigger than Jim Fetzer and Sandy Hook. This is about saving the Bill of Rights, which is under attack today as never before. Regardless of whether Jim is right or wrong about Sandy Hook, regardless of how mistaken some of his approaches may have been, the outcome of Pozner v. Fetzer presents a clear and present danger to freedom of expression in the United States.
The process of Pozner v. Fetzer appears to have been rigged precisely for the purpose of engineering this controlled demolition of our Constitutional rights. It must be appealed and overturned.