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    Covington teen Nicholas Sandmann sues The Washington Post for defamation

    Covington teen Nicholas Sandmann sues The Washington Post for defamation

    “The Post ignored basic journalist standards because it wanted to advance its … biased agenda against President Donald J. Trump … by impugning individuals perceived to be supporters of the President.”

    You know the story of the Covington Catholic High School kids who were maligned by the media when Native American activist Nathan Phillips, accompanied by a phalanx of videographers, approached them to create a confrontation.

    Nicholas Sandmann did nothing other than stand there as Phillips invaded his personal space and banged a drum inches from Sandmann’s face. The fact that Sandmann was wearing a MAGA hat infuriated liberal media and social media. That Sandmann smiled during the encounter was called a “white privileged” smirk, and led to taunts from some famous people that he should be punched in the face.

    When the full video came out, it became clear that Sandmann was the victim in this encounter, not the aggressor. There were some apologies, but for the most part the media that had tarred and feathered Sandmann did nothing to clean up the mess they made.

    Sandmann has hired high profile lawyer Linn Wood from Atlanta, and Todd McMurty from Mitchell, KY. Document preservation demands were sent to dozens of media entities and celebrities. Now suit has been filed in federal court in the Eastern District of Kentucky for defamation.

    You can read the Complaint and exhibits at the lawyers’ website. The Complaint also is here in pdf.

    As seems to be the trend in politics-related lawsuits these days, the “Introduction” reads like a press release, providing convenient soundbites for lazy journalists (ahem) to quote in coverage:

    1. The Post is a major American daily newspaper published in Washington, D.C. which is credited with inventing the term “McCarthyism” in an editorial cartoon published in 1950. Depicting buckets of tar, the cartoon made fun of then United States Senator Joseph McCarthy’s “tarring” tactics of engaging in smear campaigns and character assassination against citizens whose political views made them targets of his accusations.

    2. In a span of three (3) 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 (“Nicholas”), an innocent secondary school child.

    3. The Post wrongfully targeted and bullied Nicholas because he was the white, Catholic student wearing a red “Make America Great Again” souvenir cap on a school field trip to the January 18 March for Life in Washington, D.C. when he was unexpectedly and suddenly confronted by Nathan Phillips (“Phillips”), a known Native American activist, who beat a drum and sang loudly within inches of his face (“the January 18 incident”).

    * * *

    7. In targeting and bullying Nicholas by falsely accusing him of instigating the January 18 incident, the Post conveyed that Nicholas engaged in acts of racism by
    “swarming” Phillips, “blocking” his exit away from the students, and otherwise engaging in racist misconduct.

    8. The Post ignored basic journalist standards because it wanted to advance its well-known and easily documented, biased agenda against President Donald J. Trump (“the President”) by impugning individuals perceived to be supporters of the President.

    * * *

    13. The Post bullied an innocent child with an absolute disregard for the pain and destruction its attacks would cause to his life.

    14. The Post proved itself to be a loud and aggressive bully with a bully pulpit.

    15. In this country, our society is dedicated to the protection of children regardless of the color of their skin, their religious beliefs, or the cap they wear.

    * * *

    19. In order to fully compensate Nicholas for his damages and to punish, deter, and teach the Post a lesson it will never forget, this action seeks money damages in excess of Two Hundred and Fifty Million Dollars ($250,000,000.00) – the amount Jeff Bezos, the world’s richest person, paid in cash for the Post when his company, Nash Holdings, purchased the newspaper in 2013.

    I’m not really in a position to give a meaningful legal analysis at this point, in part because I’m so used to covering and analyzing lawsuits involving public figures (like Sarah Palin), where the burden is so high to show actual malice. Here, the lawsuit makes clear that Sandmann was not a public figure:

    163. Nicholas is a private figure for the purposes of this defamation action, having lived his entire life outside of the public eye.

    164. Prior to the January 18 incident, Nicholas had no notoriety of any kind in the community at large.

    165. Nicholas did not engage the public’s attention to resolve any public issue that could impact the community at large.

    166. Nicholas made no public appearances prior to the false accusations against him.

    167. Nicholas has not inserted himself into the forefront of any public issue.

    168. Nicholas’ limited public statements after the accusations against him were reasonable, proportionate, and in direct response to the false accusations against him and do not render Nicholas a limited purpose public figure.

    I’ve read the Complaint, but it is hard to find specific false statements about Sandmann. As the Complaint states many times, Sandmann relies on the alleged ” false and defamatory gist” of WaPo’s coverage (that phrase appears 24 times). Many of the statements attributed to WaPo that contributed to this gist are the repetition of statements from Phillips and others as part of the news coverage that create the impression (sometimes explicitly so) that the students (and by implication Sandmann) were the aggressors. I wonder, though, whether those conclusions by WaPo were opinions as a legal matter and thus protected by the First Amendment.

    So my gut is telling me there may be some legal problems surviving a motion to dismiss. I’ll be looking for solid legal analysis by others on this. If you find any analysis that’s not just wishful thinking, please post in the comments.

    Sandmann may have better claims against Phillips, but good luck collecting.


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    healthguyfsu | February 20, 2019 at 11:41 am

    Ahhh the JMHO defense, gotta love it.

    These journo-activists want to be elevated to a special status until it comes time to take responsibility for their actions and motives.

    Fortunately, this will be tried before a jury and not within a blog comment section. I can’t see any jury ruling against Sandmann.

      Milhouse in reply to Pasadena Phil. | February 21, 2019 at 2:01 am

      It’s unlikely that a judge will allow it to go to a jury.

        Isn’t every citizen constitutionally entitled to demand a trial by jury?

        WaPo has nothing to gain by this case continuing endlessly. The MSM won’t cover it but for more and more of the alternative media, this is manna from heaven. With the public overwhelming in supportive of Sandmann, it’s the public that will decide. WaPo, Bezos, and the other privileged ambush class will be forced to fight these cases endlessly in the media. Another “me too” phenomena.

        You lawyers (I’m assuming you are… scary) may take pleasure in deconstructing legitimate cases just to “win”, but there is a reason why cases are “heard” and not submitted in writing. It’s about the “ring of truth”. That doesn’t materialize in writing. It only comes out in live presentation. A judge will feel the pending wrath of denying Sandmann a trial by jury and will likely grant that jury trial. Why keep feeding the public with yet another miscarriage of justice? Let the jury decide. Then appeal and see what happens when the pending wrath amplifies as it gets kicked up another notch.

        Put your microscope away. It’s an elephant!

          OleDirtyBarrister in reply to Pasadena Phil. | February 21, 2019 at 1:09 pm

          The Seventh Amendment requires jury trials in federal courts in certain types of civil cases. The applicable test is the “1789 Test” which inquires whether such a case would have been subject to trial by jury at common law and ratification. The Seventh has not been incorporated and made applicable to the states.

          State constitutions and statutes generally control the right to jury trial in civil cases in state courts.

          But judges are gatekeepers and the ultimate arbiters of the law, and they decide whether the matter rises to the level of being actionable and whether judgment is appropriate for the opposing party as a matter of law. A judge can therefore dispose of cases on purely legal grounds on motions. Thus, not all cases are decided by a jury even if a right to trial by generally exists.

    Richard Aubrey | February 20, 2019 at 5:51 pm

    Were I called for jury duty, I hope I would have the moral courage to admit that my desire to shove the WaPo into the woodchipper is so overpowering that I could not possibly be an honest juror. But, geez…what an opportunity.

      MajorWood in reply to Richard Aubrey. | February 21, 2019 at 12:08 am

      If you don’t mention the cattle-prod you should be OK.

      Milhouse in reply to Richard Aubrey. | February 21, 2019 at 2:05 am

      If you really couldn’t judge the facts honestly just because you hate the defendant, then you shouldn’t be a juror. But is that really the case? I don’t understand how a decent person could possibly be incapable of judging such a case honestly. It shouldn’t matter how bad you think the defendant is; the only question before a jury is whether these specific allegations are true or false, and surely every honest person understands that specific allegations, even against Hitler himself, may be false.

      Milhouse in reply to Richard Aubrey. | February 21, 2019 at 2:14 am

      The closest I have come to being a criminal juror, I got myself thrown off because reading between the lines of both lawyers’ descriptions of the case at voir dire, I deduced that the accused had actually committed a violent crime and it would be dangerous to let him go, but that no evidence of this crime was going to be presented, and the charge they were prosecuting him for seemed like BS. As a juror my duty would be to decide only whether the evidence presented proved that he had committed the specific BS offense he was charged with, and I feared my conscience would force me to say no despite my strong suspicion that he did not belong on the streets. So I deliberately got thrown off so someone else who would convict could get chosen instead of me.

    What this, and other cases stemming from this incident, will hang on is whether the public characterizations made by news media, influential media figures and others was defamatory. If the jurors agree that it was, in fact, defamatory, then it has to be determined if the person making the defamatory statements reasonably believed that the facts of the incident were true and complete as stated. Or, in the case of the news media, that the person making the defamatory statement conducted sufficient due diligence investigating the facts of the incident, before they made the statements.

    The news media has dug its own hole and jumped into it by the practice of reporting “news” while hedging on the accuracy of their “facts” and sources. In order to beat the competition, reporters and news organs have adopted the practice of reporting information as fact, without significant independent verification, while covering their butts by using such words as “allegedly”, “reliable sources” and “witnesses report”. This is nothing more than repeating GOSSIP, if it is not independently verified. And, in the Sandmann case, there was little or no independent verification done by many media organs. Whether this reporting, without sufficient verification, was negligence to the point of being actionable, is going to be the question which must be answered.

    The case, if it ever gets to court, could go either way. But, its existence may cause the media to tighten up their practices.

      MajorWood in reply to Mac45. | February 21, 2019 at 12:15 am

      What really screws WaPo is that it took place in what some would consider walking distance from their offices. It isn’t like they were reporting on a story in a different hemisphere. They also likely had a reporter there that day as multiple events were happening. To get it wrong, and then to not correct the error is what is going to kill them. They must have figured that there was enough inertia in the false story that it would never be subjected to correction. bzzzt! wrong.

      Are they going to do discovery on Philips bank accounts? Or spending habits? I would be shocked if he had showed up on his own dime.

      Milhouse in reply to Mac45. | February 21, 2019 at 2:18 am

      It will first hang on whether the defendants made any factual allegations that a jury could find to have been false and defamatory and to have caused damages. If the judge finds they did not then it never gets to a jury.

        OleDirtyBarrister in reply to Milhouse. | February 21, 2019 at 1:03 pm

        What would the world do without poseurs like you providing legal opinions?

        I’m sure that Lin Wood knows more about defamation than you ever will.

        It is hilarious that an uneducated poseur like you is always in the comments section lecturing other people about the law and calling them dumb.

        Why don’t you get a life?

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