Nick Sandmann Lawsuit against WAPO for $250 Million and Clarence Thomas’ Solo Opinion

 

Two stories have intersected making for intriguing discussions about the First Amendment as well as the laws against defamation.

The first story is the defamation lawsuit of Nick Sandmann against the Washington Post for $250 million. WaPo’s coverage of the confrontation between Sandman and a Native American man exploded into a national story and was fed by the inflammatory and reckless coverage by WaPo and other media outlets. Sandmann’s lawyer, Lin Wood, said, “Nick Sandmann was perceived as an easy target. He is 16. Inexcusable on every level.”

I suspect that the attorney will also include information on the threats, intimidation, and harassment that Sandmann went through, which included his family leaving their home for security reasons, explaining how the extreme coverage endangered all those involved. The lawsuit claims that. . .

. . . the Washington Post ‘ignored the truth and falsely accused Nicholas of, among other things, ‘accost[ing]’ Phillips by ‘suddenly swarm[ing]’ him in a ‘threaten[ing]’ and ‘physically intimidat[ing]’ manner.’

The timing of this story is fascinating, given the solo opinion that Supreme Court Justice Clarence Thomas issued on February 19:

Thomas said the court made a mistake in 1964 when it set a high barrier for public officials to sue the press for defaming them with a false story. That was later expanded to include famous individuals and people who inject themselves into big news stories.

In essence, public officials must show the publishers knew the report was false or otherwise displayed a “reckless disregard” for the truth.

Thomas argued that the framers of the Constitution did not intend such protection when they adopted the 1st Amendment, which forbids ‘abridging the freedom of speech or of the press.’

Justice Thomas clearly didn’t have support on the record from his colleagues.

Still, we can wonder whether his statement will influence the conduct of the Sandmann case, given the freedoms that the press has abused in recent years, I appreciate Lin Wood’s understatement about the lawsuit:

All members of the mainstream and social media mob of bullies who recklessly and viciously attacked Nick would be well-served to read it carefully.

I hope Sandmann is successful.

It’s time to hold the reckless press accountable.

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  1. Rodin Member
    Rodin
    @Rodin

    Stad (View Comment):

    Rodin (View Comment):
    The WaPoo case will never go to trial. It will be settled and quickly.

    You may be right. In normal circumstances, it would be a slam dunk solution to the whole mess.

    But WaPo has Bezos’ billions behind it, and he may decide to strike a blow for Freedom of the Press, especially if the MSM starts howling, because a loss could effectively end “fake news”, and return editors to the day when stories had to be verified before publication . . .

    TGR9898 (View Comment):

    Rodin (View Comment):

    The WaPoo case will never go to trial. It will be settled and quickly.

    Only if Sandmann agrees to settle. If he holds his ground it will go to trial. Granted that is a HUGE gamble on his part, but it will be interesting to see what he decides.

    A lawyer will always advise their client to settle. Not because it’s the morally correct thing to do, but because malpractice laws push the decision in the direction of least risk.

    Justice Thomas is right. The media needs to have incentive to be more careful in the coverage even of public figures. That is irrelevant to the Covington case since there were no public figures involved (except maybe the drummer who was a professional protester). But the media has been pushing the envelope and needs to trim their sails a little bit.

    I agree wholeheartedly, but the conservative in me realizes this is a very difficult balance to achieve. The current situation allows the Press to abuse their power. We need to be careful that solution doesn’t swing the pendulum so far the other way that the public can abuse any newfound power.

    Bezos would be insane not to try to settle. If he pushes for trial he will be creamed at the trial level and if he appeals Justice Thomas will have a real opportunity to persuade 4 other justices to amend the Sullivan standard. This is why Sandmann might be well advised not to settle — other than the fact that this litigation will become his career. But I am guessing that finding a way to make a living will not be one of his career aspirations.

    With respect to what the standard should be and concern for press freedom: truth has always been an absolute defense, and the press does not need anything more than a “reasonable man” test for a rational belief that the facts, as reported, were true. You simply prove up a reasonable process for fact checking and source confirmation that most people would do before concluding that something was “true” and the press should be good to go. Instead, under Sullivan they have had a (practically) free pass to lie.

    • #31
  2. Stad Coolidge
    Stad
    @Stad

    Rodin (View Comment):

    Stad (View Comment):

    Rodin (View Comment):
    The WaPoo case will never go to trial. It will be settled and quickly.

    You may be right. In normal circumstances, it would be a slam dunk solution to the whole mess.

    But WaPo has Bezos’ billions behind it, and he may decide to strike a blow for Freedom of the Press, especially if the MSM starts howling, because a loss could effectively end “fake news”, and return editors to the day when stories had to be verified before publication . . .

    TGR9898 (View Comment):

    Rodin (View Comment):

    The WaPoo case will never go to trial. It will be settled and quickly.

    Only if Sandmann agrees to settle. If he holds his ground it will go to trial. Granted that is a HUGE gamble on his part, but it will be interesting to see what he decides.

    A lawyer will always advise their client to settle. Not because it’s the morally correct thing to do, but because malpractice laws push the decision in the direction of least risk.

    Justice Thomas is right. The media needs to have incentive to be more careful in the coverage even of public figures. That is irrelevant to the Covington case since there were no public figures involved (except maybe the drummer who was a professional protester). But the media has been pushing the envelope and needs to trim their sails a little bit.

    I agree wholeheartedly, but the conservative in me realizes this is a very difficult balance to achieve. The current situation allows the Press to abuse their power. We need to be careful that solution doesn’t swing the pendulum so far the other way that the public can abuse any newfound power.

    Bezos would be insane not to try to settle. If he pushes for trial he will be creamed at the trial level and if he appeals Justice Thomas will have a real opportunity to persuade 4 other justices to amend the Sullivan standard. This is why Sandmann might be well advised not to settle — other than the fact that this litigation will become his career. But I am guessing that finding a way to make a living will not be one of his career aspirations.

    With respect to what the standard should be and concern for press freedom: truth has always been an absolute defense, and the press does not need anything more than a “reasonable man” test for a rational belief that the facts, as reported, were true. You simply prove up a reasonable process for fact checking and source confirmation that most people would do before concluding that something was “true” and the press should be good to go. Instead, under Sullivan they have had a (practically) free pass to lie.

    And if they do settle, Justice Thomas et al. won’t have a crack at the case . . .

    • #32
  3. Full Size Tabby Member
    Full Size Tabby
    @FullSizeTabby

    Rodin (View Comment):
    Bezos would be insane not to try to settle. If he pushes for trial he will be creamed at the trial level and if he appeals Justice Thomas will have a real opportunity to persuade 4 other justices to amend the Sullivan standard.

    Justice Thomas may not even need to persuade other Justices to amend the Sullivan standard, since Nicholas Sandmann does not fit the categories the Sullivan case addressed.

    Youth Sandmann was not (before the controversy) a “public figure.” Youth Sandmann can point out that he did nothing to thrust himself into being a newsworthy quasi-public figure. [It should be quite difficult for the media to assert that by being part of several hundred thousand protesters at a public protest you “thrust yourself” to the front of a public policy debate.] Therefore, even maintaining the Sullivan standard, the media does not have a clear path to victory.

    • #33
  4. Gary Robbins Member
    Gary Robbins
    @GaryRobbins

    For a contrary point of view, see Charlie Sykes in The Bulwark:

    https://thebulwark.com/conservatives-should-not-abandon-the-free-press/

    .

    • #34
  5. Western Chauvinist Member
    Western Chauvinist
    @WesternChauvinist

    Gary Robbins (View Comment):

    For a contrary point of view, see Charlie Sykes in The Bulwark:

    https://thebulwark.com/conservatives-should-not-abandon-the-free-press/

    The Bull-what?

    • #35
  6. Rodin Member
    Rodin
    @Rodin

    Gary Robbins (View Comment):

    For a contrary point of view, see Charlie Sykes in The Bulwark:

    https://thebulwark.com/conservatives-should-not-abandon-the-free-press/

    .

    Absolutely false equivalence. Conservative expression on campus is expression of opinion. The lies of the press are about facts. What gets messed up is that the press to support an opinion makes up facts to suit that opinion. I think asking the press to actually do some due diligence before they report things as fact is not a threat to constitutional liberty. 

    • #36
  7. Rodin Member
    Rodin
    @Rodin

    Full Size Tabby (View Comment):

    Rodin (View Comment):
    Bezos would be insane not to try to settle. If he pushes for trial he will be creamed at the trial level and if he appeals Justice Thomas will have a real opportunity to persuade 4 other justices to amend the Sullivan standard.

    Justice Thomas may not even need to persuade other Justices to amend the Sullivan standard, since Nicholas Sandmann does not fit the categories the Sullivan case addressed.

    Youth Sandmann was not (before the controversy) a “public figure.” Youth Sandmann can point out that he did nothing to thrust himself into being a newsworthy quasi-public figure. [It should be quite difficult for the media to assert that by being part of several hundred thousand protesters at a public protest you “thrust yourself” to the front of a public policy debate.] Therefore, even maintaining the Sullivan standard, the media does not have a clear path to victory.

    Fair point. Obviously WaPoo would like Sandmann to be a “public figure” and might try to appeal a determination that he isn’t. That would give SCOTUS the opportunity to discuss public figure liability standards without stretching a point. Yes it would be dicta because if you find that Sandmann is not a public figure then you need not address the standard for liability when reporting on a public figure. But it would be useful dicta and it would send, if not a chill (we don’t want to “chill” speech), at least a hint of a change in the weather. That would make the press (or at least their legal counsel) sit up and take notice that there was a new sheriff in town.

    • #37
  8. Full Size Tabby Member
    Full Size Tabby
    @FullSizeTabby

    Rodin (View Comment):

    Full Size Tabby (View Comment):

    Rodin (View Comment):
    Bezos would be insane not to try to settle. If he pushes for trial he will be creamed at the trial level and if he appeals Justice Thomas will have a real opportunity to persuade 4 other justices to amend the Sullivan standard.

    Justice Thomas may not even need to persuade other Justices to amend the Sullivan standard, since Nicholas Sandmann does not fit the categories the Sullivan case addressed.

    Youth Sandmann was not (before the controversy) a “public figure.” Youth Sandmann can point out that he did nothing to thrust himself into being a newsworthy quasi-public figure. [It should be quite difficult for the media to assert that by being part of several hundred thousand protesters at a public protest you “thrust yourself” to the front of a public policy debate.] Therefore, even maintaining the Sullivan standard, the media does not have a clear path to victory.

    Fair point. Obviously WaPoo would like Sandmann to be a “public figure” and might try to appeal a determination that he isn’t. That would give SCOTUS the opportunity to discuss public figure liability standards without stretching a point. Yes it would be dicta because if you find that Sandmann is not a public figure then you need not address the standard for liability when reporting on a public figure. But it would be useful dicta and it would send, if not a chill (we don’t want to “chill” speech), at least a hint of a change in the weather. That would make the press (or at least their legal counsel) sit up and take notice that there was a new sheriff in town.

    But Sandmann was not an elected official or celebrity (music star, actor, known athlete). Elected officials and celebrities should expect in the storm of public statements about them there will be false things said (and should factor that risk into their decisions to become public figures). Sandmann also did not “thrust himself” in front of a public issue. See for contrast David Hogg, who should also expect in the storm of public statements about the issue he set himself up for false things will be said, and should factor that risk into his decision to rush in front of video cameras. Sandmann was simply standing at a curb waiting for a bus. The court can make a clean ruling that does not undermine Sullivan by refusing to classify Sandmann as a “public figure.”

    The Washington Post might risk undermining the whole Sullivan standard if they push too hard to make Sandmann a “public figure.” If I were providing legal advice to the Washington Post, I might warn them that pushing this case too hard could damage the structure they currently have in place.

     

    • #38
  9. Stina Member
    Stina
    @CM

    Full Size Tabby (View Comment):
    But Sandmann was not an elected official or celebrity (music star, actor, known athlete). Elected officials and celebrities should expect in the storm of public statements about them there will be false things said (and should factor that risk into their decisions to become public figures). Sandmann also did not “thrust himself” in front of a public issue.

    This is true, but lower courts have ruled (in recent memory) that individuals that the *press* thrusts into public are still public figures.

    George Zimmerman lost his own libel suit because the courts determined him a public person thanks to his Sanford trial, even though Zimmerman has been attempting to live a private life.

    There is something wrong with that and I would love to see such a determination challenged. The press does not get to make public figures and then destroy them.

    • #39
  10. Sisyphus Member
    Sisyphus
    @Sisyphus

    Susan Quinn: It’s time to hold the reckless press accountable.

    The reckless press in my little universe has been reduced to a handful of RSS feeds among hundreds. Ad blocked, no pay for pay walls, no sound for the oppressive look at me look at me videos, and not a stitch of credibility.

    I miss Andrew Breitbart, though. The Walking Dead Breitbart page experience just bites.

    • #40
  11. Roderic Fabian Coolidge
    Roderic Fabian
    @rhfabian

    Gary Robbins (View Comment):

    For a contrary point of view, see Charlie Sykes in The Bulwark:

    https://thebulwark.com/conservatives-should-not-abandon-the-free-press/

    .

    Sykes seems to be saying that freedom of the press is too important to be put at risk just because the Washington Post harmed those boys so severely and unfairly.  Sorry, Charlie, but there has to be some minimal accountability.

    • #41
  12. Goldwaterwoman Thatcher
    Goldwaterwoman
    @goldwaterwoman

    Roderic Fabian (View Comment):
    Sykes seems to be saying that freedom of the press is too important to be put at risk just because the Washington Post harmed those boys so severely and unfairly. Sorry, Charlie, but there has to be some minimal accountability.

    “The right to swing my fist ends where the other man’s nose begins.” 
    – Supreme Court Justice Oliver Wendell Holmes, Jr.

    • #42
  13. ctlaw Coolidge
    ctlaw
    @ctlaw

    CNN complaint:

    https://www.courtlistener.com/recap/gov.uscourts.kyed.88577/gov.uscourts.kyed.88577.1.0_1.pdf

    • #43
  14. Susan Quinn Contributor
    Susan Quinn
    @SusanQuinn

    ctlaw (View Comment):

    CNN complaint:

    https://www.courtlistener.com/recap/gov.uscourts.kyed.88577/gov.uscourts.kyed.88577.1.0_1.pdf

    People should at least skim this complaint, @ctlaw–if they can stomach it. The description of Nathan Phillip’s behavior, and the number of things CNN did to damage Nick Sandmann’s reputation is difficult to take in. Thanks for sharing it with us.

    • #44
  15. DrewInWisconsin Member
    DrewInWisconsin
    @DrewInWisconsin

    Gary Robbins (View Comment):

    For a contrary point of view, see Charlie Sykes in The Bulwark:

    https://thebulwark.com/conservatives-should-not-abandon-the-free-press/

    No surprise. Sykes thinks it’s fine to harass supporters of the President. It’s the Bulwark’s raison d’être.

    Should the First Amendment allow the press to libel a private citizen and a minor as well? You don’t get to hide behind the First Amendment if you pull crap like that.

    • #45
  16. ctlaw Coolidge
    ctlaw
    @ctlaw

    ctlaw (View Comment):

    CNN complaint:

    https://www.courtlistener.com/recap/gov.uscourts.kyed.88577/gov.uscourts.kyed.88577.1.0_1.pdf

    It’s about 20 pages longer than the WaPo complaint:
    https://www.dropbox.com/s/rnio82555v8eiqk/2019-02-19%20Sandmann%20%20vs.%20Washington%20Post%20-%20Complaint.pdf?dl=0

    Seems like the attorneys patched up some holes with the CNN complaint to better withstand a motion to dismiss and possible trial defenses.

    • #46
  17. ctlaw Coolidge
    ctlaw
    @ctlaw

    WaPo motion to dismiss:

    https://www.documentcloud.org/documents/5810690-WP-Sandmann.html

    • #47
  18. Western Chauvinist Member
    Western Chauvinist
    @WesternChauvinist

    ctlaw (View Comment):

    WaPo motion to dismiss:

    https://www.documentcloud.org/documents/5810690-WP-Sandmann.html

    You’re the legal guy. What do you think of it? Do they have a chance?

    • #48
  19. Goldwaterwoman Thatcher
    Goldwaterwoman
    @goldwaterwoman

    Susan Quinn:

    I hope Sandmann is successful.

    It’s time to hold the reckless press accountable.

    We’ll all be the better for it in this country if this happens. Far too many lives have been ruined because of a press all too willing to print gossip and rumor. 

    • #49
  20. Full Size Tabby Member
    Full Size Tabby
    @FullSizeTabby

    Western Chauvinist (View Comment):

    ctlaw (View Comment):

    WaPo motion to dismiss:

    https://www.documentcloud.org/documents/5810690-WP-Sandmann.html

    You’re the legal guy. What do you think of it? Do they have a chance?

    I am a lawyer, but I do not practice libel law, so my opinion is of limited value, but I’ll try to help.

    The Washington Post has filed a request that the case be dismissed because [the Post asserts] there is no possibility that Mr. Sandmann can prove his case at trial, even if all the facts are found to be the way Mr. Sandmann says they are. So, if the Washington Post loses this motion, they still may win the ultimate case.

    I would be surprised if the court grants the Post’s current request (motion) to dismiss the case without trial. As I read the Post’s motion, the Post is saying that as long as they are just repeating what someone told them (and they identify it as such), they can’t be found guilty of defamation. In other words, they have no obligation to check into the facts of what they are told. They also assert that to be guilty of libel the court has to find that they had a specific motivation to falsify the information they present. I find this difficult to believe. The legal standard for libel includes publication of information with reckless disregard for whether it is true or false. It seems to me that not “fact-checking” is a key part of what most people would consider “reckless disregard” of the truth of the matter asserted.

    I find it interesting that the Post did not assert a blanket First Amendment right to publish defamatory information. They apparently realize that the First Amendment did not eliminate previously existing laws against libel and slander (defamation). Their entire motion is based on the assertion that their publication was not defamation. I don’t think they will win with that argument. 

    • #50
  21. Bob Thompson Member
    Bob Thompson
    @BobThompson

    Full Size Tabby (View Comment):
    They also assert that to be guilty of libel the court has to find that they had a specific motivation to falsify the information they present. I find this difficult to believe

    I have always thought this was a standard required to be met when the party claiming to have been libeled was a public figure. Nicholas Sandman is not a public figure and he is a minor. I hope it gets before a jury.

    • #51
  22. ctlaw Coolidge
    ctlaw
    @ctlaw

    Western Chauvinist (View Comment):

    ctlaw (View Comment):

    WaPo motion to dismiss:

    https://www.documentcloud.org/documents/5810690-WP-Sandmann.html

    You’re the legal guy. What do you think of it? Do they have a chance?

     I want to see them get burned on it. Much of the motion took the position that they were merely truthfully reporting what other people said.

    We see the press hiding behind bogus sources just like corrupt cops hide behind bogus informants.  

    We know these reporters and cops don’t believe the sources and informants. Otherwise, every time a source or informant was shown to be lying, the reporters would write stories about the corrupt motivation of the sources and the cops would arrest the informants.

    • #52
  23. cirby Inactive
    cirby
    @cirby

    Full Size Tabby (View Comment):
    I would be surprised if the court grants the Post’s current request (motion) to dismiss the case without trial. As I read the Post’s motion, the Post is saying that as long as they are just repeating what someone told them (and they identify it as such), they can’t be found guilty of defamation. In other words, they have no obligation to check into the facts of what they are told.

    This might work – if the Post hadn’t kept repeating the story for days AFTER the truth came out, in the form of the rest of the video.

    So while the initial story might have been okay because of the “breaking news” theory (which I certainly don’t agree with – practiced carelessness may be a habit, but it’s not a good legal defense), the days of followup repeating the same lies push it into “why didn’t you retract until we threatened to sue you?” territory…

     

    • #53
  24. Western Chauvinist Member
    Western Chauvinist
    @WesternChauvinist

    cirby (View Comment):
    This might work – if the Post hadn’t kept repeating the story for days AFTER the truth came out, in the form of the rest of the video.

    Didn’t the Post also have the full video from the beginning? Or, at least, access to it? 

     

    • #54
  25. Stina Member
    Stina
    @CM

    Full Size Tabby (View Comment):
    In other words, they have no obligation to check into the facts of what they are told

    Is this true? That the press has no obligation to verify veracity?

    Why do we give them any time of day at all?

    I need this statement in a trial transcript so it can be applied to memes and it can destroy whatever is left of the press’s stranglehold on our perception of reality.

    • #55
  26. Full Size Tabby Member
    Full Size Tabby
    @FullSizeTabby

    Stina (View Comment):

    Full Size Tabby (View Comment):
    In other words, they have no obligation to check into the facts of what they are told

    Is this true? That the press has no obligation to verify veracity?

    Why do we give them any time of day at all?

    I need this statement in a trial transcript so it can be applied to memes and it can destroy whatever is left of the press’s stranglehold on our perception of reality.

    No. That’s the Post’s legal argument. The Post is asserting that it should have no obligation to check into the facts before the Post repeats what it is told. I don’t think that is a correct legal argument, and it certainly is a bad moral argument.

     

    • #56
  27. Full Size Tabby Member
    Full Size Tabby
    @FullSizeTabby

    Stina (View Comment):

    Full Size Tabby (View Comment):
    In other words, they have no obligation to check into the facts of what they are told

    Is this true? That the press has no obligation to verify veracity?

    Why do we give them any time of day at all?

    I need this statement in a trial transcript so it can be applied to memes and it can destroy whatever is left of the press’s stranglehold on our perception of reality.

    We do know however that the media in general do not verify large amounts of what they publish. Therefore we should not take what they say at face value. I believe they have a legal obligation to do some investigation, but it appears they ignore that obligation, probably because few people who are harmed by media reports bother with the difficult process of proving that the media did not do any investigation or verification of what the media published.

    Join the vast majority of Americans who place little to no trust in media reporting. 

    • #57
  28. Goldwaterwoman Thatcher
    Goldwaterwoman
    @goldwaterwoman

    Western Chauvinist (View Comment):
    Didn’t the Post also have the full video from the beginning? Or, at least, access to it? 

    That is the most amazing question of all. I believed the initial story until I saw the entire video. Why in the world the reporters didn’t watch it is beyond me as it obviously showed the truth was far different from the reports in the press.

     

    • #58
  29. Susan Quinn Contributor
    Susan Quinn
    @SusanQuinn

    Goldwaterwoman (View Comment):

    Western Chauvinist (View Comment):
    Didn’t the Post also have the full video from the beginning? Or, at least, access to it?

    That is the most amazing question of all. I believed the initial story until I saw the entire video. Why in the world the reporters didn’t watch it is beyond me as it obviously showed the truth was far different from the reports in the press.

     

    Well, gosh, it would have messed up their stories! Who cares about the truth? [sarc off]

    • #59
  30. ctlaw Coolidge
    ctlaw
    @ctlaw

    Sandmann suit against NBC.

    • #60
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