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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.”

https://www.youtube.com/watch?v=0JMkzakXgIY

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.

https://www.youtube.com/watch?v=0JMkzakXgIY

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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Comments

wouldn’t the WaPo have a need to verify the veracity of the claims they published as facts, rather than insert weasel words like “XYZ claimed…” “bystanders said…” etc?

AFAIK, they published the BS claims as stone cold facts.

    inspectorudy in reply to redc1c4. | February 20, 2019 at 12:15 am

    I agree with your sentiment but from past experience with outlets like cnn they do not have to make any attempt to broadcast something. It seems totally unfair that anyone who is in the group called the msm does not have the responsibility to verify, if possible, the claims they make. Congress could make that a requirement but since almost all of the msm is on their side, why would they?

      Milhouse in reply to inspectorudy. | February 20, 2019 at 2:06 am

      First, the “MSM” do not have any special privilege; everyone is subject to the same rules.

      Second, even for a public figure, the publisher must have some reason to suppose alleged facts to be true; if the plaintiff can establish that the defendants published the alleged facts with reckless disregard for their truth or falsity s/he wins. But that is almost impossible to prove; the defendants will always say they got the information from a source who had proved reliable in the past, so they had trusted him/her this time.

      Third, that is only for a public figure. The public interest in knowing what public figures are up to gives people the right to publish anything about them that they have some reason to suppose to be true, and need not attempt to get reliable verification which might prove impossible. But for private figures, where there is no such public interest, the defendants must have had good reason to actually believe the facts they reported to be true.

      Fourth, Congress could not make it more of a requirement than it already is. NY Times v Sullivan sets the rules for defamation suits by public figures, and Congress can’t change them.

      Here, though, Sandmann is a private figure, so Sullivan doesn’t apply. Any false and defamatory facts published about him are actionable. The problem here is that very few false facts were published about him; it was all conclusions and opinions, which are never actionable. “Nick Sandmann is an evil racist who deserves to be punched in the face” is an opinion, and everyone is entitled to one of those no matter how much we may disagree with it.

        Valerie in reply to Milhouse. | February 20, 2019 at 9:04 am

        “who deserves to be punched in the face”

        is encouragement to commit violence.

        He was doxxed, which is an invasion of privacy, and this was only the beginning of what became terroristic threats. I am not so sure about causation with this specific tweet.

          Milhouse in reply to Valerie. | February 20, 2019 at 9:54 am

          “Who deserves to be punched in the face” is an opinion, which is absolutely protected by the first amendment. By definition it is not defamation, since opinions cannot be true or false. And advocacy, including advocating violence or other crimes, is protected speech. Doxxing is also protected speech. It’s truthful speech and doesn’t fall into any of the known exceptions to the first amendment; lawyers and juries are not free to invent new ones. Neither WaPo nor any other defendant made any threats. So there’s nothing there to sue for, unless he can identify specific factual assertions that were both false and defamatory, and he can show that those specific assertions caused him damage. The defense, of course, will argue that the damage he suffered came entirely from the opinions and conclusions, which are protected.

        02sbxstr in reply to Milhouse. | February 20, 2019 at 12:44 pm

        “the “MSM” do not have any special privilege; everyone is subject to the same rules” But but but, NY gov como wants them to be privileged [make it] a felony to assault a working journalist. https://www.democratandchronicle.com/story/news/local/columnists/andreatta/2019/01/25/special-protection-journalists-assault-felony-not-wanted-gov-cuomo/2679571002/

        inspectorudy in reply to Milhouse. | February 20, 2019 at 1:17 pm

        “First, the “MSM” do not have any special privilege; everyone is subject to the same rules”

        Ever heard of a Press Pass?

          Milhouse in reply to inspectorudy. | February 21, 2019 at 1:33 am

          Yes, what’s it got to do with anything? A press pass is no different from any other invitation to a private function. It doesn’t give the bearer any legal privileges or special status.

        JusticeDelivered in reply to Milhouse. | February 20, 2019 at 9:01 pm

        I agree. I cannot say I like it, but they are unlikely to prevail.

        leeman in reply to Milhouse. | February 21, 2019 at 9:32 am

        “Very few false facts were published”
        How about the fact that they intentionally ignored portions of a tape exonerating Sandman so that they could spin the story according to their narrative.

          Milhouse in reply to leeman. | February 21, 2019 at 10:14 am

          That’s not a fact they falsely reported, it’s a true fact about them, which means you cannot be sued for saying so. It doesn’t help Sandmann sue them.

    Milhouse in reply to redc1c4. | February 20, 2019 at 1:48 am

    wouldn’t the WaPo have a need to verify the veracity of the claims they published as facts, rather than insert weasel words like “XYZ claimed…” “bystanders said…” etc?

    Yes, but only factual claims, and they published very few of those. Almost everything they published was either, as you say, quotes from someone who had said those things, or opinions, which are not actionable. For instance, that Sandmann “sneered” at Phillips is not a fact, it’s an opinion, and therefore cannot be sued for.

    MarkS in reply to redc1c4. | February 20, 2019 at 6:41 am

    If my memory serves me..Wapo got sued for a Jimmy Carter bugging the Blair House story and the excuse then was that they were just repeating what someone else said, but were forced into an apology and retraction after Carter threatened to sue

      Milhouse in reply to MarkS. | February 20, 2019 at 9:59 am

      He threatened to sue, but as a public figure he would have got absolutely nowhere. WaPo chose to apologize, probably because the publisher was personally upset that someone on his staff had decided to publish a rumor that made Carter a villain and the Reagans victims, especially so soon after Watergate. Had it been the other way around I doubt there would have been any apology.

The bigs will settle knowing it is much cheaper than going to court, and discovery will kill them (internal texts and email).

Our friend Phillips will be crushed, pay nothing, and not be heard from again…

Anyone in the middle could be entertaining….

    Milhouse in reply to rabid wombat. | February 20, 2019 at 2:10 am

    Kentucky has no anti-SLAPP law, so they may indeed decide to settle for less than the cost of a defence. In a state with such a law they wouldn’t settle, they’d go after him first and try to make him pay their costs.

Outstanding, filed in Kentucky.

Invasion of privacy defamation and false light defamation rely more on mischaracterization of a person rather than a false statement.

WAPO defense: we are so stupid and incompetent that we didn’t bother to check or verify anything. We just went with a couple statements and a small video clip. Being stupid and incompetent doesn’t rise to legal standard of malice or defamation.

Judge: Case dismissed.

    Milhouse in reply to jaudio. | February 20, 2019 at 2:15 am

    “Actual malice”, i.e. knowledge that the allegation was false or reckless disregard for its truth or falsity, is only required for public figures. Sandmann isn’t one, so the standard is lower. The key issue here is not going to be how sure the defendant was of its facts, but what facts it published in the first place. Only facts are actionable, and most of what it published was opinions.

      Journalist are taught, so I hear, to ask tough questions and and present conflicting opinions in a balanced and responsible manner. They went with only one side, opinions they clearly share. This isn’t journalism and I would hope that there is a legal distinction between “journalists” who dutifully ply their trade versus those who hide behind the term “journalism” to claim special 1st amendment protections.

      It’s very much like the current problem of making no distinction between scientists who dutifully practice the rigors of science before presenting their results versus those who offer personal opinions purporting to be speaking scientifically. If honorifics are to have any meaning and useful in advancing truth, it is essential that such distinctions be made and that those blurring those distinctions for personal or political gain be exposed for the frauds they are.

        I would hope that there is a legal distinction between “journalists” who dutifully ply their trade versus those who hide behind the term “journalism” to claim special 1st amendment protections.

        Why would you hope that? There is no such distinction. There is nothing special about “journalists”, and they do not enjoy any “special 1st amendment protections”, so there’s no need for a legal definition.

        If honorifics are to have any meaning and useful in advancing truth,

        They don’t, and never have.

          There is no such distinction. There is nothing special about “journalists”, and they do not enjoy any “special 1st amendment protections”, so there’s no need for a legal definition.

          Excuse me? That is your personal opinion. “Journalists” themselves purport to be qualified professionals who supposedly conform to very specific standards. Thus they should be held to account when they don’t. This is the very basis for their hope for credibility. They are the ones who claim a privilege of not being required to reveal their sources for which they are sometimes held in contempt of court. We “non-journalists” would be held contempt ever time.

          And honorifics have no meaning? Then they are misrepresentations! Stop using them!

          I don’t know if you are a lawyer but your are making a case for why we don’t need lawyers or any other professionals for that matter. If anyone can say anything they want whether professionally trained and qualified or not, then society is one big chaotic fraud. And you should cease your habit of speaking in declarative sentences. They are just your opinions, no better than anyone else’s.

          Milhouse in reply to Milhouse. | February 21, 2019 at 10:21 am

          “Journalists” themselves purport to be qualified professionals who supposedly conform to very specific standards.

          So? They enjoy no legal privilege. The law treats them exactly the way it treats you or me.

          They are the ones who claim a privilege of not being required to reveal their sources for which they are sometimes held in contempt of court. We “non-journalists” would be held contempt ever time.

          They are held in contempt whenever they are charged, at least in federal court. Many state legilatures have enacted such a privilege, but the US Congress has not. The DOJ has a policy of not asking reporters for their sources unless it has no other choice, but that is just a policy, not a law.

          And honorifics have no meaning? Then they are misrepresentations! Stop using them!

          Um, do you even know what “honorific” means? You seem to be using it in a way that makes no sense. Honorifics are just that; of no significance whatsoever and no use in advancing truth, and I’m astonished that anyone would suggest otherwise, which is why I ask whether perhaps you’re thinking of some other word.

I’ve read the Complaint, but it is hard to find specific false statements about Sandmann.

True.

Is what they did defamation? I do not know. It sure as hell was misleading.

The Post is full of lazy, sanctimonious, leftist a-holes (but I repeat myself) who didn’t bother to do anything but point out what the mob was doing, while pretending they weren’t part of the mob. Even when the longer videos came out there was no contrition.

I don’t know if there will be, but I hope there is some kind of comeuppance for these jerks.

Very little upside if WaPo wins and a Yuge downside if they lose. And, a loss by WaPo will then encourage others to file suits where they haven’t in the past. I think Oberlin is still shocked and confused as to why they are going to court. It just should not happen in their world, but, it is.

My understanding is that this case basically hinges on 2 things:

1) AT THE TIME, the boys (and Sandmann in particular) were not in any way, shape or form public figures. Thus they have a considerably lower legal bar to have to reach to collect damages

2) The WAPO and a lot of others in particular made statements of FACT when writing stories about the incident – ‘facts’ that could be conclusively disproved by the video proven to be in possession of the Washington Compost and others.

So to win, they have to prove that Washington Compost possessed the video (should not be difficult), and that the video objectively disproves the statements of fact that the Washington Compost was making.

From what I’ve seen I’m pretty confident that Sandmann in particular can reach that bar. I’m also pretty confident that there will be a large settlement for them to drop the suit.

Other people named in the lawsuit will be considerably more complicated, as proving that they actually possessed the full video would be considerably harder.

    Vancomycin in reply to Olinser. | February 20, 2019 at 7:27 am

    I’ve read that the bar for these things is *even lower* when the plaintiff is a juvenile, which Sandmann is.

Eastwood Ravine | February 20, 2019 at 1:20 am

This is aimed with the anticipation that the Washington Post will settle. That’s my gut feeling.

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.

Exactly. Conclusions, especially when accompanied by the facts from which they are derived, are opinions, not statements of fact, and therefore cannot be defamatory.

(When not so accompanied they can sometimes be taken as implying facts that would support such a conclusion, and those implied facts, if false, would be defamatory. But in this case the alleged facts were cited, and a reasonable fair-minded reader could easily see that they did not necessarily support the conclusions.)

Everything is politics today. A Kentucky Judge may not want to dismiss the suit and find reasons not to. If the suit isn’t dismissed then the Washington Post has to settle. They can’t control the narrative and will end up looking like incompetent fools. What’s 10 million to Bezos or the insurance company anyway?

Hope he wins ,,, provided of course if the judge has a backbone to do the right thing. Then bring lawsuits against everyone who printed the same Hate and Slander !!!

Not sure if DOXing is an invasion of privacy. If it is public information, I think you have a weak case here. School year book, social information, etc…..newspaper articles….there is nothing illegal about DOXing. Now intent behind doxing is the questioning, is it stalking, intent to put individual at risk, that is the money question.

Professor, WaPo completely abandoned the very standards that gives journalism it’s raison d’etre, credibility. They intentionally ignored the entire video accurately showing what really happened, even after that video was made public and went viral online. There is clearly no “absence of malice” here. Sandmann is a minor, was not engaged in political activity (unless wearing a souvenir MAGA hat qualifies) and is not a public person. He was just picked out of a crowd, the wrong guy at the wrong place at the wrong time.

“Journalists” have a duty to follow the standards of their own profession. This isn’t just you or me stating our opiniona however ludicrous they may be. This was weaponized, politically-driven theater that randomly victimized an innocent child.

I’m not a lawyer but I can’t see how this fails to survive a motion to dismiss. It is too politically charged and too rife with the most important elements necessary to make it a landmark case. Even judge shopping and gimmicky legal reasoning are very likely to fail. The public outcry would be too frightening in this already emotionally charged political environment. Just my personal opinion.

    Professor, WaPo completely abandoned the very standards that gives journalism it’s raison d’etre, credibility. They intentionally ignored the entire video accurately showing what really happened, even after that video was made public and went viral online.

    Yes. So what?

    “Journalists” have a duty to follow the standards of their own profession

    No, they don’t.

    This isn’t just you or me stating our opiniona however ludicrous they may be.

    Yes, it is. WaPo is no different from this blog, or from any of us. It has exactly the same rights and responsibilities.

    I can’t see how this fails to survive a motion to dismiss.

    You don’t need to be a lawyer to understand that there’s very little if any substance to the claim, and it’s difficult to see how it does survive. What false and defamatory facts is WaPo alleged to have published, and how are those specific statements alleged to have damaged him?

    The public outcry would be too frightening

    Judges have no right to even consider that.

Because of the media’s action and lack of follow up to correct their actions, I think they have a good case. Damages to the school representation, the closing of school for safety reasons,….etc were all impacted by poor reporting and failing to follow up to correct the situation. I think the school and every person attending the school should file action against them They all have been harmed. Think about it, if a home owner can sue his neighbor for bring down the value of his house because they don’t maintain their house, why can’t the school do the same with the media. Why does media get special treatment?

Still, got to remember the Oprah v Beef Industry case. I am guessing that WAPO with throw a 100 K at it to make it go away.

    Milhouse in reply to MarkSmith. | February 21, 2019 at 1:47 am

    , if a home owner can sue his neighbor for bring down the value of his house because they don’t maintain their house,

    No, he can’t, unless they have a contract requiring such maintenance.

    why can’t the school do the same with the media.

    The first amendment.

    Why does media get special treatment?

    They don’t. They get the same first amendment protection as everyone else. Not even one drop more. Everybody is entitled to publish their opinions, no matter how wrong or stupid or malicious they are. Only false factual statements are actionable, and only if those statements can be shown to have caused damage.

On doxing – Criminal activity consisting of the repeated following and harassing of another person.Stalking is a distinctive form of criminal activity composed of a series of actions that taken individually might constitute legal behavior . For example, sending flowers, writing love notes, and waiting for someone outside her place of work are actions that, on their own, are not criminal. When these actions are coupled with an intent to instill fear or injury, however, they may constitute a pattern of behavior that is illegal.

Well a public figure saying punch this guy in the face for a BJ has some serious intent. Even a non public figure said I would pay you $100 (or what ever the going rate of a BJ is) to punch someone in the face is a chargeable offense.

    MarkSmith in reply to MarkSmith. | February 20, 2019 at 10:53 am

    This post was meant to be a response to Milhouse’s
    “It doesn’t matter. There is nothing illegal about doxxing. It is neither a crime nor a tort. It’s just bad manners.”

    I think it is a crime and a tort because of intent. Technically yes, doxing is not illegal if using public information.

    Milhouse in reply to MarkSmith. | February 21, 2019 at 1:56 am

    Thank you for the definition of stalking, but I don’t know why you bothered. Doxxing does not even slightly resemble that definition. There is absolutely nothing illegal or actionable about it.

    Well a public figure saying punch this guy in the face for a BJ has some serious intent.

    No, s/he does not. No reasonable person (which is the legal standard) would take such an offer seriously. In any case, nobody at WaPo or any other news outlet ever made such an offer. Saying that he deserves to be punched in the face is not an offer of anything, it’s an opinion, which is 100% protected. It’s not actionable, and no legislature or court can make it actionable.

    Even a non public figure said I would pay you $100 to punch someone in the face is a chargeable offense.

    If it was a serious offer, directed to a specific individual, then yes, it would be solicitation of a crime. It would still not be actionable by the would-be victim unless someone acted on it. But that is not what happened here.

Good call, young man. Sue them deep, hard and very publicly, if for no other reason than just to be an aggravation to them. They definitely have it coming.

The United States District Court for the Eastern District of Kentucky, not the poster Milhouse will decide if allegations contained in the complaint of Sandman are sufficient to survive the inevitable Rule 12(b) Dismissal Motion by the Post.

In Kentucky an allegation of criminality — such as the allegation the boys blocked the activists access to a public street or impinged on his movement — is defamatory per se. The law is far more complex and contextual than one posterspuerile notions.

    objection in reply to counsel. | February 20, 2019 at 12:06 pm

    Falsely accusing someone of committing a crime is also defamation per se in the District of Columbia. The Post may move to have the case heard under the Law (Kentucky vs DC) most favorable to it. However the outcome will likely be Kentucky since the Post conducts business there by offering print newspapers for sale.

Kinda off topic, but have to share this. Was looking something up on Reddit and ran across a post about John Wayne playboy interview. I am guessing Sandman was not educated by one of these schools:

PLAYBOY: You blame all this on liberals?
WAYNE: Well, the liberals seem to be quite willing to have Communists teach their kids
in school. The Communists realized that they couldn’t start a workers’ revolution in the
United States, since the workers were too affluent and too progressive. So the Commies
decided on the next-best thing, and that’s to start on the schools, start on the kids. And
they’ve managed to do it. They’re already in colleges; now they’re getting into high
schools. I wouldn’t mind if they taught my children the basic philosophy of communism,
in theory and how it works in actuality. But I don’t want somebody like Angela Davis
inculcating an enemy doctrine in my kids’ minds.

https://pages.shanti.virginia.edu/Wild_Wild_Cold_War/files/2011/11/John_Wayne_Playboy_Int2.pdf

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.

    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.

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

    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.

    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?

        I’ve been watching with curiosity to see when your post gets pulled down by the censors here are the “sanitized for your protection” new LI.

        So far…

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