Nicholas Sandmann’s $250 million defamation lawsuit against the Washington Post may not be a slam dunk for the Covington Catholic High School student, despite having garnered headlines and the attention of the president of the United States.
“This is going to get into the realm of opinion and hyperbole and general commentary on a political event, a public political event, and I think it’s going to be a very difficult row for him to hoe,” Jon Fleischaker, a Kentucky attorney who specializes in media law, told the Washington Examiner.
Sandmann’s parents filed the lawsuit on his behalf in federal court in Kentucky on Tuesday, claiming the Post published seven “false and defamatory articles” about Sandmann after a Jan. 18 encounter he had with Nathan Phillips, a Native American, at the Lincoln Memorial.
“The Post ignored basic journalistic 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 lawsuit states.
Regardless of how the case plays out, it could have implications for the media industry.
George Washington University law professor Jonathan Turley told the Washington Examiner in an email the fact that a “student and non-public figure” is at the center of the dispute “makes it all the more dangerous for media defendants.”
“The filing portrays this as a ‘campaign’ which would be hard to prove. However, various media outlets seemed willfully blind to the countervailing facts and stuck with the narrative of a group of MAGA-hat wearing thugs ‘swarming’ a Native American war veteran,” Turley wrote. “The harm to the student is obvious but the harm to journalism may be even more pronounced. There is a dangerous inclination to fulfill a narrative of Trump-inspired racist as was evident with some of the coverage of the Smollett hate crime allegation.”
Sandmann’s lawsuit classifies him as a private figure, which requires him to prove the Post acted with negligence, a lower bar than what public figures must meet to succeed in defamation lawsuits.
Director of the University of Florida’s Marion B. Brechner First Amendment Project Clay Calvert said pleading that Sandmann is a private figure was “strategic” on the part of his attorneys, as were questions they raised about Phillips’ credibility in their lawsuit.
“Essentially, the argument that’s being set up here is that the Washington Post relied on a non-credible source, namely Nathan Phillips, as well as this other Twitter account, which the plaintiffs say was a phony Twitter account,” Calvert said. “That they simply accepted Nathan Phillips’ words and simply accepted the video on Twitter without doing the requisite investigation and reasonable journalist would do.”
But Sandmann’s success could turn on whether the court views him as a private figure or as a limited-purpose public figure, one who, according to the Supreme Court, has “thrust themselves to the forefront of particular controversies in order to influence the resolution of the issues involved.”
Calvert said the Post could point to Sandmann’s interview with NBC’s Savannah Guthrie in arguing he should be considered a limited-purpose public figure.
“The argument that the Washington Post might make is when he did this interview, he thrust himself into the public spotlight on his own,” Calvert told the Washington Examiner. “He didn’t have to talk to Savannah Guthrie, but he did it voluntarily, and he sought the media limelight.”
If he is considered a limited-purpose public figure, Sandmann would instead have to prove the alleged defamatory statements were made with actual malice, or a reckless disregard for the truth.
Calvert noted libel claims are difficult to prove.
In responding to the claims, Washington Post spokeswoman Kristine Coratti Kelly said the news outlet is “reviewing a copy of the lawsuit and we plan to mount a vigorous defense.”
In addition to maintaining Sandmann is a limited-purpose figure, the Post could argue the defamation allegations stemmed from statements of opinion, not statements of fact, such as that Sandmann engaged in conduct considered racist.
“What does it really mean today to be labeled a racist?” Calvert said. “That term is loosely used by many people in a hyperbolic sense. Is there really any objective measure to say that he’s racist?”
Fleischaker, too, contended there is “going to be a lot of discussion about opinion versus a statement of fact,” including what it means to instigate a confrontation. Sandmann’s lawyers accused the Washington Post of communicating in numerous articles “the false and defamatory gist that Nicholas instigated a confrontation with Phillips.”
