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.

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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