Family of Covington Teen Sues WaPo
While I'm sympathetic to his plight, he has no case.
WaPo “The Washington Post sued by family of Covington Catholic teenager”
The family of the Kentucky teen who was involved in an encounter with a Native American advocate at the Lincoln Memorial last month filed a defamation lawsuit against The Washington Post on Tuesday, seeking $250 million in damages for its coverage of the incident.
The suit alleges that The Post “targeted and bullied” 16-year-old Nicholas Sandmann in order to embarrass President Trump. Sandmann was one of a number of students from Covington Catholic High School in Kentucky who were wearing red “Make America Great Again” hats during a trip to the Mall when they encountered Nathan Phillips, a Native American activist.
News accounts, including in The Post, and videos of their encounter sparked a heated national debate over the behavior of the participants.
“In a span of three days in January of this year commencing on January 19, the Post engaged in a modern-day form of McCarthyism by competing with CNN and NBC, among others, to claim leadership of a mainstream and social media mob of bullies which attacked, vilified, and threatened Nicholas Sandmann, an innocent secondary school child,” reads the complaint.
It added, “The Post ignored basic journalist standards because it wanted to advance its well-known and easily documented, biased agenda against President Donald J. Trump by impugning individuals perceived to be supporters of the President.”
The suit was filed by Sandmann’s parents, Ted and Julie, on Nicholas’s behalf in U.S. District Court in Covington. It seeks $250 million because Amazon chief executive Jeffrey P. Bezos paid that amount for the newspaper when he bought it in 2013.
I’m sympathetic to Sandmann here. The reporting was phenomenally shoddy. Aside from journalistic competition, there was simply no reason to rush to press with the story without due diligence. Beyond that, a 16-year-old kid who was in no way a public figure should not have been the subject of a whirlwind of national media scrutiny over a misinterpreted smirk.
That said, the lawsuit is a joke on its face. The whole “modern-day form of McCarthyism” angle is absurd and undermines the credibility of the suit. Beyond that, the 1st Amendment, as interpreted by the courts over the years, provides a high barrier to those seeking to get damages.
While I happen to think the “public figure” exception carved out by the Supreme Court in NYT vs. Sullivan is interpreted too widely, it’s possible that Sandmann would be under that umbrella (at least as a “limited purpose public figure”) given the public nature of the demonstration. That would require proving “actual malice” on the part of the Post, which is not only extremely difficult but almost certainly not true.
If Sandmann is deemed not to be a public figure, then his lawyers would only need to prove carelessness. While I do think WaPo and others were, in fact, careless in a lay sense, they almost certainly weren’t careless to the extent required to be liable. The parallel that comes to mind is that of hapless security guard Richard Jewell, who was briefly treated by the national media as the perpetrator of the bombing of the 1996 Atlanta Olympics when he was actually a minor hero. While his life was turned upside down by the false claims—including revelations of a lot of embarrassing but legal activity during said scrutiny—he and his estate repeatedly failed to win damages over a fifteen year legal battle that concluded years after his untimely death.
The Pennsylvania News Media Association has a quick guide, excerpted from Bruce W. Sanford’s Synopsis of the Law of Libel and the Right of Privacy, on “Avoiding Libel.”
- Avoid slipshod, indifferent or careless reporting. Whenever a statement could injure someone’s reputation, treat it like fire. The facts of a story should be confirmed and verified, as far as practicable and in accordance with usual news gathering procedures.
- Truth is a defense, but good intention in reporting an untruth is not. Remember, there may be a vast difference between what’s true and what can be proved to be true to a jury. When in doubt as to whether a story is libelous, do not publish or broadcast it until you are sure it is not libelous. Remember, a retraction is not a defense to a libel action but serves merely to mitigate or lessen damages.
- Make reports of arrests, investigations and other judicial or legislative proceedings and records precisely accurate, full, fair and impartial. Use of unsubstantiated information from law enforcement officers has ensnared many reporters in libel lawsuits. Limit comment or criticism to matters of public interest based on facts which are fully stated in the comment and which are true.
- Try to get the “other side of the story.” A good reporter sticks to the facts and not to some bystander’s opinion of what might be the truth if the facts were known. The eventual “write‑up” of a story should be objective and never colored by the enthusiasms or opinions of the reporter.
- Particular care should be taken in publishing quotations. The fact that a person is quoted accurately is not in itself a defense to a subsequent libel action, if the quoted statement contains false information about someone.
- Never “railroad” a story through, but instead write it, check it out and edit it carefully to make sure it is accurate and says precisely what you want to say.
- Avoid borderline cases of invasion of privacy, since the law of the right of privacy is still developing.
- Avoid gossip and the unauthorized use of names and pictures for advertising or other commercial or promotional purposes. Use the name or picture of a person only when identified relative to the subject matter of the publication. Never use unidentified pictures to illustrate social or other conditions, when pictures of people who expressly consent, including professional models or staff members, will suffice and are readily obtainable.
- If an error has been made, always handle demands for retractions that come from a lawyer for a potential plaintiff with the advice of legal counsel. A well meaning but unnecessary or poorly worded correction may actually prejudice a publisher’s or broadcaster’s defenses in a subsequent lawsuit.
The Covington teens and the general public would have been better served had WaPo and other major media outlets treated the story “like fire” rather than “railroading” it through. Still, they almost certainly stayed within the letter of the law by sticking to the facts and putting the early analysis in via quotations from officials and observers on the scene.
Update (Doug Mataconis): For those interested, here’s copy of the Complaint:
Sandmann vs. Washington Pos… by on Scribd
UPDATE 2 (James Joyner): I made some minor corrections in wording to avoid confusion as to the defamation standard for private figures.
Agree with your analysis here. I am curious as to the court’s examination of “public figure”–I’ve wondered this frequently since social media became a dominant force in our culture.
I remain, however, unsympathetic toward Sandmann; he, and the adults who were purportedly supervising this gaggle of teens should have known better. That smirk continues to grate on me, it strikes me as incredibly entitled. I try not to go down the “kids these days” route, but my parents would have grounded me for this type of behavior–not launched a lawsuit against a newspaper.
@Jen: I agree that the chaperones failed to do their jobs. No way in hell I let the kids demonstrate in MAGA hats while representing my organization. But I cut the kid some slack here. I’m not sure how I would have reacted at that age if some stranger came up to me banging a drum while I was trying to get on a bus.
should the “but” be an “and” or should the “illegal” drop the “il”?
While not completely correct or even intellectually honest, the reports did get a few things right that will complicate Sandmann’s defamation case. It’s not like WaPo just invented the thing out of whole cloth to make him look like an asshat – he was out protesting with the group, they were being disruptive at a different protest then they were supposedly attending and that picture is real and represents a moment that happened (without proper context but still existent). “Actual malice” would have been a doctored photo adding the smirk.
Instead, what happened got misinterpreted and the right went and ran with it. They’re still running with it in the whole “go get ’em” thing and not realizing that the case has a discovery period that can end somewhat badly for them. This kid isn’t as innocent as his defenders are screaming. What if it comes out that the hats were intentional as part of a trolling / heckling plan from the kids or worse, the chaperones sanctioned it? What if it comes out that this was a setup for media attention considering the PR company involved? Defamation is very hard to prove and anything that comes out to show WaPo wasn’t completely and utterly in the wrong is going to tank this already iffy case.
But was it? Not if you believe what Nathan Phillips (the Native American man) has said.
And then you expect your readers to believe that poor Sandmann didn’t say anything offensive, while his family releases a ridiculous complaint like this:
The very ridiculousness of this complaint makes it exceedingly likely that Sandmann’s report of his encounter with Phillips is utterly and completely unreliable.
How can you be so blind as to not see this? This is starting to approach willful ignorance.
A rich white racist sees himself as the victim.
Shocking…
@Daryl and his brother Darryl: Another day in America.
@OzarkHillbilly: The “but” makes sense but, yes, the “il” was a typo. Fixed.
@drj: I don’t believe Phillips, who has been documented to be a fabulist and serial liar. But, yes, as acknowledged in the OP, the wording of the lawsuit renders whatever thin merits it otherwise have had a joke.
@James Joyner: In no way, shape, or form were they “trying to get on a bus” and being impeded by Nathan Phillips. That sounds like the apologia the rightwing is pushing on this story. The video footage shows the students and their chaperones surrounding Nathan Phillips and the little smirker and yelling and cheering. There was no movement to head them towards buses.
The six Ws of journalism these days: Who, what, where, why, when, and woke. If you get that last one, you don’t have to worry about the rest.
@James Joyner:
For argument’s sake, I’m willing to grant you this. Whatever, doesn’t even matter that much.
But at the very least – based on their complaint – Sandmann’s family are also a bunch of crazed fabulists. So on what basis are you maintaining that Sandmann has any credibility and that the reporting was indeed “phenomenally shoddy?”
Whether you know it or not, you’re simply not being honest here.
I suspect that this case will suffer a fate similar to the one Sarah Palin’s lawsuit against The New York Times did. Although she has appealed that ruling, though
For those interested, I have posted a copy of the Complaint in an update.
@drj:
Indeed. It seems to be the default for conservatives to accept Sandmann’s version even though his doesn’t match the video evidence either. Why are we believing one set of liars over another?
Look, the kids were brats. They didn’t do everything WaPo said they did but they were gleefully being little trolls and then went on national TV to act like butter wouldn’t melt in their mouths. All I know if the lesson they are learning from this is you can get away with anything as long as you have a good publicist and social media cred. They didn’t learn to be good people or enhance their faith in any way (supposed the “rationale” behind the trip to protest)- if anything, this would have cemented some bad habits and beliefs in a way just the WaPo report wouldn’t have.
What lesson would you imparted on these young men? That you get a pass on being a teenaged jerk on camera because a newspaper didn’t do a through job in their reporting? That if you scream loud enough and lie long enough, you don’t have to deal with what you’ve done? That acting like a 4chan troll in real life can net you a defamation suit and some $$$$? That the outrage circuit is where the real money is? Yeah WaPo screwed up but that doesn’t excuse their behavior and it really says something about the parents that they’re trying for the ghetto lottery then educating their kids in proper morals.
Smirky McJerkface and his family don’t seem to know when to quit. They managed to raise enough smoke with their widdle boy’s television interview that he could have disappeared back into anonymity. But nooo…, now they want to be vindicated. Good luck with that. As someone famous once said: Sad.
One of the major campaign contributors to Democrats, the trial lawyers, pull these stunts every day. Wake up and grow up people.
Speaking of legalities……………
Smollet and McCabe, lefty icons and two lying peas in a pod…………..
Where did the $250 million come from? I doubt that this kid had $250 million worth of reputation. Does that matter in a law suit? If a neighbor drives across a portion of my lawn damaging the grass, can I sue for millions?
@KM:
That’s . . . defamation. To the extent the kid’s protesting transforms him into a public figure, it’s not enough because it’s next to impossible to prove reckless disregard for truth. But they were certainly careless.
@Slugger: I gather “$250 million” was chosen because it’s what Bezos paid for the paper. It’s an absurd figure. But I guess one can sue for whatever figure one wishes and let the jury decide on the damages.
Dennison:
A president commenting on pending litigation. Totally normal.
@James Joyner: It occurs to me that this young man may have gotten an increase in the value of his reputation as a result of the publicity associated with the media’s handling of the situation. Previously, he was just an anonymous teenager, and now he is a famous person. Perhaps, he is reviled by some, but surely he is championed by others. This could be a positive for him just like Kaepernick is reviled/championed and just gotten a fat check.
@James Joyner:
How about Pussy hats, Black/Blue Lives Matter, Planned Parenthood or Mom Demand Action Tshirts?
Your “attending a public protest makes you a public figure” standard is BS.
@KM:
But were they?
I thought so too. I saw Sandmann’s face and wanted to punch it. After getting egg on my face from being manipulated by a dishonest, agenda-driven media–an experience too-oft repeated these last few years– I’m reverting to a very skeptical, distrusting mode that is probably not all that healthy.
But who can you trust?
The best thing for this kid would be a normal life. Instead, his nutjob parents decided to link him to the persecution fantasies of 70-year old MAGA idiots. It’s objectively not-good to do this. It’s the equivalent of entering your 6 year-old into beauty pageants. These are Trump’s people–they are happy to be despised for being terrible, and they have no qualms about doing it to their kids.
@KM:
Yeah, remember when these MAGA hats were just “souvenirs” and in no way symbols of white supremacy? Everyone is now able to evaluate that claim against the words in the complaint lodged by Sandmann’s family.
So now we have:
1) a MAGA hat on Sandmann’s head that was “just a souvenir”
2) parents who are demonstrably right-wing loons
3) a smile that was mistakenly perceived as smirk rather than a token of non-aggression
So it’s either a series of three very unfortunate coincidences that combined to form a woefully unfortunate impression of the poor boy, or Sandmann is vile little racist himself (hard to not be one with crazy parents like that, I’m sure).
Of course, it is always possible that we ARE, in fact, dealing with coincidences, but based on what we KNOW, the only reasonable working assumption at this point is that Sandmann pretty much did what was accused of.
I mean, this is Ockham’s Razor – or Aristotle’s Principle of Parsimony, if you want to be both a pedant and more historically accurate. Regardless, it’s extremely basic stuff that was known millennia ago.
I get that by now it’s pretty much impossible to know for certain what went down at that square; and I do understand that it is hard to even imperfectly escape one’s biases.
But Dr (FFS) Joyner has been extensively trained to draw reasonable inferences from incomplete evidence.
And still, for whatever reason, he can’t manage to do this basic stuff.
It’s genuinely sad.
At the heart of this is a bunch of rich white teenage boys sent to the HIll, by their all boys school, to protest a woman’s right to choice. While wearing bright read symbols of racism.
’nuff said.
I have no idea what actually happened in DC and would be hard pressed to care. But filing for 250 million would seem to confirm that the kid or his parents are in fact the privileged, MAGA hat wearing, asshats he appeared in the original stories or one of the multitude of RW activist legal groups seized on this. As I think about it, replace all the “or”s in that sentence with “and”.
@Daryl and his brother Darryl:
So what?
Maybe I’m to cynical (or becoming crazy paranoid now), but I won’t be surprised if there is some future intersection of this suit with Justice Thomas’ proclamation on Sullivan covered in a subsequent post.
@James Pearce:
So?
So they were encouraged to, and were intent on, flexing their perceived superiority from the jump.
The entire Red Hat movement is about fighting back against the white males loss of privilege and control, and the mis-guided idea that they have become the victims instead of the victimizers.
How dare women expect to have a choice without asking a white mans permission?
How dare a Native American bang a drum without asking a white mans permission?
All the rest of this is just bullshit semantics.
For those of us who live in Indian country, what Phillips was doing was clear and totally consistent with his explanation.
The smirk in Sandmann’s face and his refusal to give way are also clear. Even if he didn’t understand what Phillips was doing, moving out of an elder’s way would seem to me to make sense. “Standing his ground” is a typically aggressive move. Especially with the smirk.
James, as a white male you probably haven’t been subjected to this kind of harassment. Some of the rest of us have been.
@Daryl and his brother Darryl:
I’m so sick of being forced to see American politics as a contest between the evil white male and the virtuous “other.”
They’re in red hats because they’re conservative Catholic boys, so…..what?
@Cheryl Rofer:
At what point can we assume that every white male will have experienced, at some level, this kind of harassment? I assume that every white male 20 and under has had some woke person in their face obnoxiously calling them out over something they had nothing to do with.
#James Pearce are you a nationalist?
It doesn’t do that. It was a private incident, and being involuntary thrust into the spotlight isn’t grounds to be a limited public figure. That requires that someone voluntarily insert themselves into a public debate.
I don’t think the lawsuit will prevail, but the proper standard is negligence, not malice.
What made them decide to pick the Washington Post to sue, here? They seem to understand clearly in the complaint that it was social media that elevated this incident (why not sue Twitter?), and that other media organizations also reported on it (why not sue CNN or NBC?).
Who is paying for this lawsuit?
@Mark Ivey:
Not really. Why?
@James Pearce:
They are in red hats because they are racist mother-fuqers.
The red hat movement started with birtherism.
It continued when Dennison announced his candidacy by calling all Mexican immigrants rapists.
It continued by banning Muslims.
It continued when Dennison called Nazis good people.
It continued when this school sent their students to protest a woman’s right to choose.
And it continued when this racist punk got in that mans face.
Wake. The. Fuq. Up.
I’m betting the lawyers who typed up that complaint had the same smirk.
Aso, the owner of the Washington Post just told extortionists to go ahead and publish his dick pics. And discovery is going to go both ways. I wonder if Smirk Boy has discussed any of this with his friends over text, social media, etc., and acted like a teenaged jackass there. Has he talked about “owning the libtards” to impress some right wing girl? Has he basically been the normal teenaged jackass we wud expect for someone his age? That’s going to end up in the court record, and likely public.
This doesn’t seem like a smart fight, and his parents should know better and be protecting him from some of the consequences of his actions and not making them worse.
@Daryl and his brother Darryl:
My favorite part of “interacting with a lefty” these days is that part where they stereotype a whole group of people and then get mad when you don’t go along with it.
@James Pearce:
Its not a stereo-type. The red hats are a movement. They are not a race of people who had no choice in where they were born, or how they look, or if they have a vagina or a penis. They are a group of people who has decided, by their own free will, to brandish a symbol. That red hat is the symbol of a movement that has racism and misogyny and hatred and fear and white nationalism at it’s very core.
I put on Hell’s Angels colors…I know what it means.
I put on a white hood…I know what it means.
I put a rainbow sticker on my car…I know what it means.
Symbols have meanings.
You put on a red hat…you know what it means.
You are spouting the equivalent of the good Nazis myth. You know…some people who put on those brown shirts actually loved the Jews…that they then gassed.
@Daryl and his brother Darryl:
Well, that’s the stereotype.
I suppose when you called me a Nazi sympathizer for not buying into it, you wanted to prove me wrong?
@Daryl and his brother Darryl:
Symbols have different meanings to different people. The MAGA cap tends to straddle a line that a white hood just flat out crosses.
@Gustopher:
And so it enables those who want to be on the far side of that line to pretend they don’t.
@Mikey:
I’m gonna go out on a limb and say that the 16 year old kid wearing a MAGA hat isn’t doing it out of any kind of devotion to white supremacy….
@James Pearce: I wasn’t referring to all the MAGA hat wearers. But there are certainly very many for whom what I said is true.
And if you think a 16-year-old can’t be fully aware, and supportive, of racist viewpoints, I will simply say you are mistaken.
@Mikey: It also lets those on the non-White-Supremacist side troll the lefties.
If I had to guess, I think this idiot kid is a casual racist — he hasn’t encountered a lot of minorities, hasn’t had to consider them, and hasn’t had his views challenged. He doesn’t have racist ideology as much as he has racist patterns that he has picked up. My guess is just based on the fact that he’s an idiot kid from an all white school, with far right parents.
I wouldn’t read anything particularly nefarious behind the hat, other than he’s a bit of a jerk. But, again, he’s a sixteen year old boy and they’re all jerks.
The casual racists can change. College, and exposure to people who aren’t just like him, can change him.
It probably won’t though. He has seen this incident, and his President is egging him on. Hes being rewarded. He’s being taught that he’s right to be a jerk.
@Mikey:
Look…a 16 year old kid, born in a post-911 world, where black Americans are some of the most celebrated Americans, where for half his life the president was black, if that kid is wearing a MAGA hat, it might not be due to a belief in white supremacy…
@Gustopher:
So the red hat is a gateway drug?
Oh yes, because we had a black president, we now live in a post-racial America, where racism is nonexistent…uh huh…
@Guarneri: You do know that McCabe is a self admitted life long Republican and Smollet is a selfish lying politically naive B celebrity. I do not see the left wing link here
@An Interested Party:
We don’t live in a post-racial America. We live in the America where “woke” social justice “warriors” froth at the mouth over microaggressions in movie trailers.
Racism is something you learn. And where do you think these 16 year old kids learned it?
@James Pearce:
From their racist fuqing parents, and from the racist private school that sent the privileged racist mother-fuqing boys to protest women’s rights.
@James Pearce:
Yeah…and I’m sure the Coast Guard terrorist wanna-be isn’t a white supremacist either?
@Gustopher:
For the rest of his life, the kid will be known for this, anytime anyone googles his name.
@jpe788:
He probably was not a public figure before, but filing this lawsuit – a publicity seeking act – turns him into one now.
@Daryl and his brother Darryl:
You have concocted an entire racist ecosystem to justify your “MAGA hats are racist” stance. It’s ridiculous. It’s pathetic. It’s stupid and it’s gross.
These are conservative Catholics. It’s safe to say they don’t agree with you. It’s safe to say they’re pro-life. It’s safe to say that the only place they have in your worldview is as knuckle-dragging, Trump-supporting racists.
What’s funny is that you think that reflects poorly on them.
James Pearce so you are a “nationalist lite” type right?
@James Pearce:
There is a world of space between conservative Catholics and people who support Dennison.
Dennison is neither conservative, nor christian. Period.
You cannot truly be a conservative Catholic and support Dennison. These are contradictions in terms.
@Mark Ivey: Where are these leading questions leading?
@Daryl and his brother Darryl:
I’ve long suspected, but now I know…
You think conservative Catholics are all Democrats?
@James Pearce:
You’re just not very bright.
@Daryl and his brother Darryl: No, but I am done with this conversation.
@Daryl and his brother Darryl:
I’ll agree that there should be and that it would be nice if there was, but much like contemporary Evangelicals–who should also have a world of space separating them from Trump, there probably isn’t anymore.
ETA: @ James Pearce–The world would have been a better place if you’d never started “this conversation” in the first place some 20 or so comments back.