The 3rd Court of Appeals on Thursday refused to dismiss the defamation suit a man filed against Austin-based conspiracy website InfoWars after his photo was posted on the website and erroneously identified him as a suspect in the February 2018 shooting at a Parkland, Florida, high school.

The ruling affirms the August 2018 decision by state District Judge Scott Jenkins to deny InfoWars’ request to dismiss the lawsuit.

Marcel Fontaine’s defamation lawsuit against InfoWars and reporter Kit Daniels also originally included Alex Jones, the founder and impresario of the multi-platform fringe news operation. But Jenkins dismissed Jones from the lawsuit. Jones’ lawyers said he knew nothing about Fontaine’s image being posted beforehand. It was removed 13 hours later.

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The court opinion recounts that, “on February 14, 2018, a shooter killed seventeen people at Marjory Stoneman Douglas High School in Parkland, Florida. That same day, the Infowars.com website published an article authored by Daniels entitled ’MSM already covering it up.’”

"The article provided information and commentary relating to the Parkland shooter, Nikolas Cruz, and included a clear photo of Marcel Fontaine below the text, ’Another alleged photo of the suspect shows communist garb’ and with the caption, ’Shooter is a commie.’”

“In the photo,” the opinion notes, “Fontaine is wearing a red shirt that features several famous communist leaders engaging in merriment.”

InfoWars’ attorneys said the reporter’s information came from two anonymous sources.

Fontaine’s attorney, Mark Bankston of Houston, noted that one of the sources, 4chan, is a site well known for trolling, hoaxes and offensive content. The other was easily identifiable as an Antifa parody site.

Nontheless, the court opinion notes that InfoWars’ attorneys “assert that these sources formed the basis for Daniels’s belief that the photo was of the Parkland shooter and that by using the adjective ’alleged,’ Daniels absolved himself of liability for defamation because an anonymous user on 4chan and an anonymous user on Twitter had both alleged that the photo was of the Parkland shooter.”