Imagine for a moment that a riot occurred in the downtown area of your city. Hundreds, even thousands of people flooded the streets, smashed windows, looted stores, set fires, and beat up innocent bystanders.
But now add a twist. During the riot, each offender left behind a precise digital record of all the damage he or she did. And unlike video records or photographs, these records of the damage done are infallible, in every case leading directly back to all the guilty parties.
This is one metaphorical way of viewing the virtual attack on the lives and reputations of the students of Covington Catholic High School. It began on Jan. 18 with a few negligent and perhaps deliberately deceptive tweets. It went on with shoddy news reports based on false information taken straight from social media. The false, defamatory reports about these students continued for days and days afterwards.
The students’ only apparent offense had been to don politically unpopular hats, souvenirs of their trip to Washington, and to stand in the wrong place at the wrong time, where they had been told to wait for their bus.
Whatever the varied motives, every single person who posted false and defamatory information about these students, whether from malice or even just simple negligence, left an indelible mark that any court of law can trace to its source. Far too many of the negligent accusations, and some of the more malicious ones, can be traced back to people who call themselves journalists. Social media is the modern tool that made this figurative riot possible and encouraged professionals to cast aside standard journalistic precautions against repeating unconfirmed allegations against private persons.
Last week, Covington’s Nick Sandmann sued the Washington Post for $250 million. It is probably the biggest lawsuit he will file, but not the last. Sandmann is unlikely to secure such a sum from the storied newspaper of Bob Woodward and Carl Bernstein. But the Post, like the dozens of other deep-pocketed organizations and persons who appear negligently and with malice to have published highly defamatory information about Sandmann and his classmates, has hardly a leg to stand on in its defense. Libel law frowns upon the powerful when they punch down.
The press gets special treatment in America and is even named in the First Amendment to the Constitution because the republic requires vigilant journalists to hold people in power to account. The Supreme Court case New York Times v. Sullivan provides wide latitude for those writing about powerful public figures, such as President Trump and the many legislators mayors, governors, newspaper owners, and tech titans who feature in the news. As long as they avoid publishing what they know to be false, or publish falsehoods from “reckless disregard of the truth” (a tough but not impossible standard), journalists cannot be found liable even when wrong. This precedent, requiring “actual malice” for liability, prevents the powerful and famous from suing newspapers into silence on trumped-up libel charges.
But journalists’ feelings of invincibility can lead to an arrogant sense that there are no boundaries, that they can do no wrong. This is dangerous indeed. For the law treats private individuals, people like Sandmann, his classmates, his parents. and his friends, very differently from public figures. A mere negligent mistake in writing about such people, leading to the publication of defamatory information, can be enough to make the writer liable.
Whether you are a journalist, a celebrity, a think tank, or anyone else with a public platform and a bank account, the civil courts will hold you strictly to account for everything you say about private individuals. You will pay a heavy price for negligence in determining the truth of your allegations. You may be liable for defamation, even if your errors do not evince “malice” or “reckless disregard of the truth.”
There is a good reason for this. With a single story, a careless reporter who fails to check facts can ruin a decent person’s reputation and maybe even his life. That’s why the press is generally much more hesitant to write about private individuals, and why journalists are careful to rely on court records and the like when discussing their misdeeds.
The feeding frenzy that occurred on Jan. 18 was a uniquely modern phenomenon. It combined the nation’s sharp political divisions, deliberate deceptions, heat-of-the-moment partisan carelessness, anti-religious bigotry, and the negligence that social media tends to encourage in professional and amateur alike. This resulted in death threats, “doxing,” and false, defamatory information about a group of young men whose conduct in the face of abuse was about as good as anyone could expect from teenagers in the circumstances in which they found themselves.
If ever there was a lesson about the dangers of social media, this is it. This is a case that professors at journalism schools will invoke to scare their students straight about how social media encourages unprofessional behavior. Their message will probably be reinforced by the six-, seven-, and eight-figure payouts that the Post and other publications and individuals will probably be making soon toward Sandmann’s college fund.
