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Legal experts aren’t convinced the Covington Catholic teen has a case against the Washington Post

Proving "actual malice" is hard.

by Emma Ockerman
Feb 21 2019, 8:06pm

The MAGA hat–wearing high school student who faced off with a Native American elder at the Lincoln Memorial last month wants the Washington Post to pay for coverage his attorneys called a “modern-day form of McCarthyism.”

Specifically, attorneys representing Covington Catholic junior Nicholas Sandmann want $250 million in punitive damages from the Post — the exact price Amazon.com founder Jeff Bezos, the richest person in the world, paid to acquire the company in 2013. In the lawsuit, filed by the Sandmann family in a Kentucky court Tuesday, attorneys argue the Post defamed their client by using a short video that didn’t show the full nature of the interaction as well as interviews that described Sandmann as aggressive and threatening.

Proving that, however, won’t be so easy, media law experts told VICE News.

Sandmann’s standoff with Native activist Nathan Phillips on Jan. 18 went viral after the account @2020fight tweeted a short video that appeared to show Sandmann smirking in Phillips’ face as Phillips, surrounded by other Covington students, banged a drum in what he said was a plea for peace amid an escalating situation. The Post mentioned “videos that went viral on social media” in its reporting and interviewed people at the event. The lawsuit also notes that a Post reporter retweeted @2020fight’s clip.

Sandmann later said he was just smiling and trying to defuse the situation, and his attorneys argue a longer version of the video showed the full version of events — including a third party, the Black Hebrew Israelites, berating the students. (The Post didn’t mention the full video in its first article but did in subsequent pieces.) The three groups met on the National Mall as the Covington kids were finishing up their field trip to attend the anti-abortion March for Life event. Phillips was attending the Indigenous Peoples March at the same time. The Black Hebrew Israelites appeared to be shouting at both groups in the full video.

The lawsuit argues that the newspaper “did not conduct a proper investigation” before publishing its article and missed “a plethora of relevant video” online that showed the entirety of the incident. The suit also references quotes included in the first article from the Diocese of Covington, which initially condemned the encounter. The lawsuit also points to quotes from Phillips and Chase Iron Eyes, an attorney who was at the march and called the encounter “an aggressive display of physicality.”

To successfully win the millions they’re seeking from the Post, Sandmann’s attorneys will have to prove a lofty standard: actual malice. Established in the landmark 1964 Supreme Court case, New York Times v. Sullivan, the “actual malice” standard dictates that a public figure must show “clear and convincing evidence” that a reporter published a story they knew was false or “recklessly” ignored the truth.

If Sandmann were only seeking compensation for damages done — not punitive damages — his attorneys would have to prove a lower standard: negligence, or that a reporter acted carelessly, rather than with actual malice. But the lawsuit filed Wednesday seeks $50 million for damages done — and $200 million more in punitive damages.

Proving "actual malice"

To prove the higher standard, Sandmann’s attorneys have their work cut out for them, according to media law experts. To start, the opinions of the some of the Post’s sources, like Phillips, likely wouldn’t constitute defamation.

“Some of the statements challenged in the lawsuit seem like opinions or subjective assessments of a complicated situation,” Len Niehoff, a professor at the University of Michigan Law School who teaches courses in First Amendment and media law, wrote in an emailed statement. “As a general rule, evaluative statements like that can’t serve as the basis for a defamation claim.”

The Post might not have been aware the full video existed when it published its first article, on Jan. 19. The newspaper published another story, on Jan. 22, that referenced the longer video posted by the Black Hebrew Israelites, the taunts against the students, and Sandmann’s assertion that he had done nothing wrong.

Proving that a publication intentionally violated generally accepted reporting standards — instead of just missing a piece of the puzzle during a breaking news story — would be difficult.

“It would require deliberately ignoring countervailing evidence, publishing a story before you had a clear idea of what the facts were, going beyond what you could verify, and speculating,” Jane Kirtley, director for the Silha Center of the Study of Media Ethics and Law at the University of Minnesota, said in an interview with VICE News. “Journalists aren’t expected to be clairvoyant when they write the initial story.”

A spokeswoman for the Washington Post told VICE News via email that “we are reviewing a copy of the lawsuit and we plan to mount a vigorous defense.”

The language of the lawsuit also sounds politically motivated to some experts. For example, the lawsuit makes a plea to “teach the Post a lesson it will never forget.”

“The whole complaint, I think, is very, very questionably written because it really reads like a political screed,” said George Freeman, executive director of the Media Law Resource Center and former assistant general counsel to the New York Times. “The bulk of the complaint is really about Trump and the media in general.”

The lawsuit does mention Trump. “The Post ignored basic journalist standards because it wanted to advance its well-known and easily documented, biased agenda against President Donald J. Trump,” Sandmann’s attorneys argue. Trump also tweeted in support of the lawsuit Wednesday.

“I do not file politically motivated lawsuits. Period. The Post’s documented bias against President Trump is relevant to the case because it demonstrates its bias against Nicholas,” Lin Wood, Sandmann’s attorney, told VICE News via email. “The Post and other members of the media made Nicholas’ souvenir MAGA cap an issue. As his lawyers, we are compelled to address that issue.”

Wood added in the email he’s “confident that we can prove actual malice.”

There’s also a chance the Post could settle out of court, although that’s not likely. In 2017, for example, Rolling Stone agreed to pay $1.65 million to the University of Virginia’s Phi Kappa Psi fraternity to settle a defamation lawsuit over a story that alleged a gang rape occurred at the fraternity house. That year, Disney — the owner of ABC — also reached a $177 million legal settlement with a beef producer that sued the network over its coverage of meat it called “pink slime.”

Cover image: A police car sits at the entrance to Covington Catholic High School in Park Hills, Ky., Saturday, Jan 19, 2019. (AP Photo/Bryan Woolston)