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Nick Sandmann lawsuit fallout: Washington Post issues small ‘correction’ and huge explanation

Nick Sandmann lawsuit fallout: Washington Post issues small ‘correction’ and huge explanation

WaPo issues a non-correction correction for its botched coverage of the Covington Catholic High School kids.

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

Nick Sandmann, the media’s object of hate after false reports he was part of a group harassing a Native American activist, sued The Washington Post for defamation.

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.

As I expressed in the above-linked post, I have questions and doubts about the legal foundation of the Sandmann lawsuit, though without a doubt he was maligned by WaPo and most of the media. Whether that gives him a legal claim that can survive in court remains to be seen.

Late Friday afternoons are reserved in the political world for bad news. It is, in most cases, a dead zone of attention spans.

WaPo did something curious late this Friday afternoon, it issued an Editor’s Note and Correction to its original report. But the “correction” part was actually quite small, it had to do with whether Phillips actually was a Vietnam veteran. But before getting to that correction, WaPo gave a lengthy defense of its coverage.

Here’s the full Editor’s Note:

https://web.archive.org/web/20190302001602/https://www.washingtonpost.com/nation/2019/03/01/editors-note-related-lincoln-memorial-incident/?tid=sm_tw&utm_term=.70549210b336

A Washington Post article first posted online on Jan. 19 reported on a Jan. 18 incident at the Lincoln Memorial. Subsequent reporting, a student’s statement and additional video allow for a more complete assessment of what occurred, either contradicting or failing to confirm accounts provided in that story — including that Native American activist Nathan Phillips was prevented by one student from moving on, that his group had been taunted by the students in the lead-up to the encounter, and that the students were trying to instigate a conflict. The high school student facing Phillips issued a statement contradicting his account; the bishop in Covington, Ky., apologized for the statement condemning the students; and an investigation conducted for the Diocese of Covington and Covington Catholic High School found the students’ accounts consistent with videos. Subsequent Post coverage, including video, reported these developmentsViral standoff between a tribal elder and a high schooler is more complicated than it first seemed”; “Kentucky bishop apologizes to Covington Catholic students, says he expects their exoneration”; “Investigation finds no evidence of ‘racist or offensive statements’ in Mall incident.

A Jan. 22 correction to the original story reads: Earlier versions of this story incorrectly said that Native American activist Nathan Phillips fought in the Vietnam War. Phillips said he served in the U.S. Marines but was never deployed to Vietnam.

It’s obvious that the “correction” to Phillips’ Vietnam record was just the excuse to issue what amounts to a non-correction correction to the misleading initial reporting.

As Prof. K.C. Johnson put it on Twitter:

Friday-news-dump editor’s note essentially concedes that entire framing of original coverage was wrong.

Mollie Hemingway points out that this all is a pretend correction, and

In a Friday night update in the midst of a massive lawsuit, Washington Post tries to quietly acknowledge, and downplay, its layers of false and defamatory reporting on the Covington High School boys who attended the March for Life.

I don’t know what, if any, impact such a belated non-correction correction will have on the lawsuit. But WaPo obviously is worried enough to put the bad news in a late Friday afternoon dump.

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Comments

rabid wombat | March 1, 2019 at 9:11 pm

Discovery should be fun!

Now I’m not a lawyer, but doesn’t them issuing a correction THIS LATE with no actual new information they discovered demonstrate that they were at a minimum negligent?

    Colonel Travis in reply to Olinser. | March 1, 2019 at 11:44 pm

    I’ve written for the WP. Trust me, they know how to use basic English. If they wanted to say “we were negligent” they could have written: “we were negligent.” But they didn’t. How much those three words would hurt them in a courtroom, I do not know. Probably would not help them. I think it was written for that reason and also for another.

    This is essentially what they said:

    We were just sitting here one day minding our own business, when all of a sudden a story fell into our lap, then when that was over we got back to minding our own business again and, I swear this is so funny, but later other people issued statements that made the whole story really complicated! And then there were other videos and we reported on ALL this. I swear, it is a giant mess now. You have no idea how complicated this is!

    Did they behave so passively with, say, Watergate?

    No.

    They didn’t apologize or correct anything. This was an oddly-timed summary that had no rational reason to be written except for the lawsuit threat. Their subscribers are on their side. But I also think this is as far as they could possibly go in the apology direction. They believe, morally, they did nothing wrong. They wouldn’t have handled this story the way they did, unless they believed it was the “correct” way to handle it. The press to them is all about leftist influence, not a search for truth. It is only the stupid and outdated (to them) morals of Nick Sandmann and every other whitey (R) in America that made them address this POV difference.

    The media are trying to kill this country and reanimate it into a Euro-zombie.

      Olinser in reply to Colonel Travis. | March 1, 2019 at 11:56 pm

      While I agree with you, I think that this is a great sign for Sandmann’s lawsuit.

      If the Washington Compost were actually confident of prevailing in court, they would never have done something like this.

        Colonel Travis in reply to Olinser. | March 2, 2019 at 12:28 am

        I hope it is a good sign, I just don’t know. I have to say that I’m with Prof. Jacobson on this, I don’t know if the lawsuit will succeed.

        I definitely want it to. The media need to be taken down several notches because they are behaving as nothing but a giant propaganda machine.

      Michael Johnson in reply to Colonel Travis. | March 2, 2019 at 4:14 pm

      I believe this strengthens the lawsuit, because they don’t admit their story was incorrect.

No way should Sandman or his lawyer accept this – even if it were a true apology. The kid’s reputation was smeared and dragged through the mud both willingly and viciously with malice aforethought. WA Post, among others, need to pay dearly for this.

    MattMusson in reply to rabidfox. | March 2, 2019 at 7:03 am

    Hey WaPo. Shut up and WRITE THE CHECK!

      leon0112 in reply to MattMusson. | March 5, 2019 at 5:12 pm

      What I want is a front page story in the Sunday paper above the fold with massive headline reading “Nick Sandmann: The Washington Post apologizes for its negligent malicious false articles about you. We are sorry for the damage to your life and your family.”
      And the article underneath the headline should be a full throated apology for trying to destroy his life and incite others to do violence against his person, his family and his community. And to admit that wearing a red MAGA hat is not a threat against American society, but it is a good thing to wish good will to ALL of the citizens of America. Even the ones that the Washington Post hates.

I think what makes the WaPo truly nervous is Justice Thomas’s recent opinion saying “New York Times and the Court’s decisions extending it were policy-driven decisions masquerading as constitutional law.”

That signaling and this particular case seem made for each other. The change in make up in the court (and by the time this gets to SCOTUS, RBG will have involuntarily retired) makes this the right time to settle rather than litigate. It’s not the money, it’s the prior precedents that they want to protect.

    dystopia in reply to sheepgirl. | March 2, 2019 at 8:17 am

    The New York Times v Sullivan coupled with the Twombly decision essentially removed defamation as a viable cause of action against elite media outlets (e.g. New York Times, Washington Post, ABC, NBC, CBS, CNN). The standards are so onerous as to be impossible. You cannot prove actual malice in someones mind in a pre delivery pleading. Given the Twombly pleading standard the case is dismissed.

    Under Sullivan — Sandman can also be deemed a public figure, because he took part in a public protest.

    Whether the case is dismissed or proceeds to trial is up to the trial judge. It can go either way and it really does not matter. This case is tailor made for Supreme Court review. While the standard for defamation should be strict it should not be an impossible hurdle.

      herm2416 in reply to dystopia. | March 2, 2019 at 8:46 am

      He was there for the March For Life, that isn’t a protest, but a rally. He isn’t a public figure, by any stretch of the imagination.

        From what I read, the students were just waiting for their bus. Being white and wearing a MAGA hat doesn’t make a person a public figure and nor constitute protest any more than wearing a Yankee cap. You are allowed to show support for your team.

        Few had problems accepting that the SF fan who attacked a LA fan in the parking lot of Dodger Stadium and put him in coma committed an agregious crime. It wasn’t the after math of an argument or anything. It was just an angry SF fan picking out an LA fan for attack. Why is this case any different? The victim clearly didn’t cause it nor having his life ruined.

          Correction: … or DESERVE to have his life ruined.”

          Milhouse in reply to Pasadena Phil. | March 2, 2019 at 8:40 pm

          Few had problems accepting that the SF fan who attacked a LA fan in the parking lot of Dodger Stadium and put him in coma committed an agregious crime.

          Well, of course. How is that relevant here? There is no “public figure” exception to the laws of assault, nor any first amendment protecting certain kinds of assault. Defamation law does have those factors.

          You completely missed my point. Being a young white student wearing a MAGA hat in public does not make you a public figure and in both cases, they were randomly selected for assault. In Sandmann’s case, it’s even worse since it was a staged, racial politics-based assault against a minor.

          Sometimes you just like being obtuse.

      dystopia in reply to dystopia. | March 2, 2019 at 12:43 pm

      I agree Nick Sandman was not a Public Figure. But if the United States District Court Judge hearing the suit rules that for purposes of Sullivan Sandman was a limited public figure then Sandman’s lawsuit is in deep trouble.

      That’s one reason why it is time to revisit Sullivan in light of Twomby.

      Milhouse in reply to dystopia. | March 2, 2019 at 8:38 pm

      Under Sullivan — Sandman can also be deemed a public figure, because he took part in a public protest.

      I disagree that that’s enough. It might be if it were just him and a dozen of his friends protesting, but he was merely one anonymous member of a 200K+ crowd; that does not make one a public figure. Plus, this didn’t even take place at the rally; at the time of this incident he was just one of the thousands of daily visitors at the Lincoln Memorial.

      So no, I don’t think Sullivan is a factor here. I still think Sandmann is likely to lose even under the pre-Sullivan standard, but he doesn’t face this extra almost-insurmountable burden. If he can prove that specific lies caused him damage, he won’t have to also prove that the Post knew they were lies, or didn’t care whether they were lies.

        dystopia in reply to Milhouse. | March 3, 2019 at 7:04 am

        I agree with you Sandman was not a public figure. But it is not up to you or me — it will be up to a Judge. The problem with Sullivan is that it gives too much discretion to the Court.

        Some years Zimmerman; in is post acquittal defamation suit; was ruled a limited public figure by Judge Debra Nelson based on the flimsy arguments that Zimmerman had spoken out about public safety in public meetings. Her dismissal of his civil case was upheld.

        I don’t quibble with your excellent analysis. It’s just that judges have too much discretion in the limited public figure arena and Sullivan needs to be tweaked by SCOTUS.

    Milhouse in reply to sheepgirl. | March 2, 2019 at 8:30 pm

    I don’t think that can be a factor here, not only because Thomas is the only voice on the Court for revisiting Sullivan, but much more importantly because Sullivan will not be a factor in this case. Sandmann was without doubt a private figure when this happened, so the standard the coverage will be judged by is the pre-Sullivan one.

    The thing is, even by that standard I can’t see the Post losing this one. Sandmann can only sue for factual statements that were false, not for opinions or conclusions. Anything portraying him as an evil racist without telling a specific lie about an objective fact is not actionable. Statements that his smirking face is asking for a punch are opinions. Nasty, horrible opinions, but opinions nonetheless and therefore not actionable.

    So he must identify the specific lies the Post told, and then convince the jury that those lies, and not the opinions or conclusions drawn therefrom, caused him the damage he sustained. That will be very tough to do.

JusticeDelivered | March 1, 2019 at 10:16 pm

I hope that this cost WP enough money that the boy can afford to attend an Ivy League school:)

The Covington Affair in progress.

That said, if he doesn’t float, then he’s not a duck, and the warlock trial is surely over.

I understand from Twitchy that the Editor’s Note is behind the online paywall. I thought that the old standard was that a proper correction had to be printed in a conspicuous place in a newspaper? Hiding it behind a paywall doesn’t seem conspicuous to me.

    zennyfan in reply to JBourque. | March 1, 2019 at 11:48 pm

    The original story was behind the paywall; ergo, the placement of the correction behind the paywall is acceptable.

    Eskyman in reply to JBourque. | March 2, 2019 at 2:59 pm

    Before coming here to LI I heard that WaPo had issued an apology, so I went to the WaPo website & did a search for “Nick Sandmann.”

    I did not find any apology, though there were a number of articles featuring Sandmann, including the original slanderous ones.

    Shouldn’t an official apology be somewhere where it can be found by someone looking for it?

As I recall, they kept their original, debunked story on their web site for several days after it was clear it was full of baloney (and thus defamatory).

“WaPo issues a non-correction correction for its botched coverage of the Covington Catholic High School kids.”

Hardly “botched” coverage, but intentional.

Thanks goes to Powerline for the link in a story about this issue.

https://www.lawserver.com/law/state/kentucky/ky-statutes/kentucky_statutes_411-051

…The thing is, I’m pretty sure the lawyer for Sandmann made a request well in advance of the lawsuit, probably ten days. Making the non-apology admission of error within ten days after the lawsuit.. how does that help?

It’s obvious that the “correction” to Phillips’ Vietnam record was just the excuse to issue what amounts to a non-correction correction to the misleading initial reporting.

It’s more than that. It’s an admission that they did not look up well-known facts that are surely in their files before reporting the story. Add this to their REFUSAL to accurately report what was on the complete video which was surely in their possession, how can they defend themselves as “journalists”? Where were the editors? Don’t they fact check stories? Is “journalism” just a license to outright lie?

Sticking your face on an elephant’s belly while pawing it might provide lots of facts and minute observations to consider when trying to figure out what kind of animal it might be. Some might even go further with microscopic analysis. But there is no escaping the inescapable logic that the first thing to do is to step back a get a look at the entire animal.

Is there a legal term for that concept? The legal eggheads found one for pornography (“we may not know how to define it but we know it when we see it”). Why is it so difficult to apply this concept to “journalism”? Seeking the “ring of truth” apparently lies outside of the realm of law.

    Milhouse in reply to Pasadena Phil. | March 2, 2019 at 8:53 pm

    There is no “journalism” privilege in the first place, so their defense can’t rest on their being “journalists”. Their defense will surely be that the specific facts they misreported were innocent mistakes and the damage Sandmann suffered was caused by the opinions and conclusions that others drew, not from their misreporting but from their own prejudices and perceptions, and from Phillips’s lies, for which they are not responsible.

The Editor’s Note, posted by WaPo essentially claims that their reporting was based upon community sources, not on their own investigation. And, when they discovered that the information, which they had already published, was erroneous, they corrected it. This is done in an attempt to shift responsibility for the actions of the WaPo from that organ to other sources, the accuracy of none of which were confirmed.

While not stated, it is vaguely implied that WaPo had to jump on the breaking story, which was already being reported publicly, or be placed in a non-competitive position vis-a-vis other prominent news organs. So, they published unconfirmed information being spread by the rest of the media and other sources. So, the media business model made them do it. Of course, this defense has to be presented without WaPo actually admitting to being negligent in any way.

The Sandmann Libel suits are likely to get complicated, in court. We will very likely get a far better idea of exactly what WaPo knew, when it knew it and what it did to accurately report the story. And, this is just one of what are likely to be plethora of individual suits.

My own personal opinion on Sandmann’s status as a “public figure” is that he is not olne. He was not known, publicly, before this incident. He did not interject himself into the incident. Sandmann was waiting with a group of students, for a tour bus. He was not engaged in any public demonstration, at the time. Philips approached Sandmann, made no effort to step around or past him and made no effort to retreat. Philips, or members of his entourage, created the video and released it. In other words, Sandmann was interjected into this public incident, by those who released the video of it.

    “While not stated, it is vaguely implied that WaPo had to jump on the breaking story, which was already being reported publicly, or be placed in a non-competitive position vis-a-vis other prominent news organs.”

    Why couldn’t this be the foundation for a test case? Journalists can only be expected to perform due diligence if it is profitable? No standards for accuracy? How can anyone be held responsible for telling the truth if profitability is primary standard? Why even put anyone under oath if telling the truth in court might be detrimental to one’s wealth?

    Are there no lawyers who can make the argument that there is no point in even having laws if courts place no value for the truth? This is why we have hearings rather than mailing in our arguments. So we can hear the ring of truth in the logic and passion of skillful attorneys. That is why I am betting on Lin Wood.

    Truth DOES matter and the public knows the truth already. It’s not WaPo vs Sandmann that is on trial here but justice itself. Can courts deliver justice even when the truth is universally known and acknowledged? Maybe we need to start hanging judges!

RandomCrank | March 2, 2019 at 1:05 pm

I will start by stating my hope that Mr. Jacobsen, who writes this blog, sees my comment and will reply. I have a high regard for his analysis and acumen, and would really be interested in his reaction.

I am a former professional journalist who practiced at a time when that label actually meant anything. I went to journalism school in the 1970s, and as part of my education I studied the law of mass communication, including defamation, “false light,” and invasion of privacy.

I am very strongly on the side of Nick Sandmann, who I think has been seriously damaged by the coverage of the Lincoln Memorial incident. However, the more spadework I do, the less convinced I am that he will recover damages. I sincerely hope I am wrong, and that he wins a series of whopping jury verdicts, or that he walks away with comfortable out-of-court settlement money. But I think he will be on shaky legal ground.

He’s a Kentucky resident, so I presume that’s where his cases will be filed and heard. I would point to a similar case there, Sam Cromity vs. Terry Meiners and Clear Channel Communiucations (2015.)

Cromity was a police officer who gave a speeding ticket to Meiners, a radio talker. Meiners went on the air and called Cromity a liar, a troubled public servant, and other nasty stuff. The lower court dismissed Cromity’s defamation-false light claim, and the state court of appeals (Kentucky’s supreme court) upheld the dismissal, ruling that Meiners’s statements were protected opinion.

I suspect that Meiners was helped by having been acquitted of traffic violation; how much that mattered, I don’t know because I didn’t read the whole case. Still, there is very broad protection for opinion, and most of what was said and published about Sandmann was opinion.

There is one aspect to these cases that I’d like to see Sandmann’s lawyers examine in discovery: exactly how the incident got as much media coverage as it did.

The reports have made it appear that the focus was the result of some mysterious “going viral” process. That might be true, but I am skeptical. One reason for my skepticism is that, after I left journalism for the financial sector, one of my employers hired a p.r. firm to represent me. Because of their contacts, I was on the call lists of all the big outlets.

My name appeared in the WSJ, NYT, WaPo, Forbes, Fortune, Business Week, USA Today, and a bunch of specialized publications. I made a bunch of TV appearances too. My point is that you don’t get into the media without an intermediary. My hunch is that the people who went after Sandmann had pre-existing media contacts, possibly facilitated by p.r. outfits.

Even if Sandmann never recovers a nickel, I think it’d do us all a service if his lawyers, as part of the discovery process, would zero in on the process by which this became such a big story to begin with. Also, his lawyers should probe the links between the so-called Hebrew Israelites and Nathan Phillips, the so-called “tribal leader.”

I suspect they will learn that Phillips and the Israelites were well-acquainted before the incident, and that the entire encounter might have been planned and coordinated in advance, and that the media aspect was set up through pre-existing contacts.

There is a lot to explore here, even if there’s no big price tag attached. My hunch is that, defamation aside, there is plenty that the Washington Post and other media and celebrity outlets would like us not to know.

    janitor in reply to RandomCrank. | March 2, 2019 at 2:37 pm

    The video and false claims originally were spread by bogus twitter accounts of activists.

    There’s a good bit of a difference between a police officer, representative of the government, who stops and tickets an individual and a kid standing with other students while waiting for a bus. There’s also a lot of difference between a defendant spouting lies and opinions in his own defense (very common and everyone knows this isn’t necessarily objective) and an uninvolved third party news organization with an international bullhorn that is supposed to be a responsible and objective portrayer of facts.

    Spouting opinions based on false facts, express or implied, does not change the characterization of what was published into opinion. Moreover, the republication of false facts (or the opinions based on them) is just as libelous as the original publication.

    It’s a good case.

      I was going to comment, but you beat me to the crux of my response: this is a child, not a uniformed police officer representing any layer of government. There is no “political opinion” that was levied at the child; there was slander with a cynical political purpose that was repeated without bothering to check the claims or debunk them by the Post. Not a public figure; not a public servant; a child.

      If the law truly can’t tell the difference, there is no law of any significance remaining. At least then we’ll know.

      Milhouse in reply to janitor. | March 2, 2019 at 9:04 pm

      Spouting opinions based on false facts, express or implied, does not change the characterization of what was published into opinion.

      This sentence doesn’t seem to make much sense. Perhaps you mean it doesn’t turn the false facts themselves into opinions. This is true. But the opinions themselves, the conclusions drawn from the facts (whether false or true) are still opinions and not actionable.

      Stating the facts on which an opinion is based actually makes it easier for the defendant. “John Smith is a racist” is an opinion, but stated by itself it could be taken to imply that there exist facts which would lead one to that conclusion, so he could sue for those implied facts. But “John Smith did X and Y, and is therefore a racist” implies there are no further facts. If X and Y are true, then even if the conclusion is ridiculous it is not actionable. Even if X and Y are false, if they themselves are not defamatory then the conclusion drawn doesn’t make them defamatory.

      RandomCrank in reply to janitor. | March 4, 2019 at 12:35 pm

      The fact that Sandmann is 16 years old certainly makes him more sympathetic to me, and probably to a jury. But I don’t think it matters insofar as defamation law is concerned. Same for the fact that Cromity was a police officer and Sandmann is a student. The point of Cromity vs. Meiners & Clear Channel is that there’s very broad and almost absolute legal protection for opinion, no matter how offensive.

      I think the practical key here might wind up being whether or not these lawsuits survive dismissal motions prior to discovery. If Sandmann’s lawyers can begin discovery, I expect that one of their key focal points will be to trace the development of this as a story covered by the national media.

      What were the mechanics? We know that Phillips didn’t edit the video. We know that it went to Twitter via a fake account based in Brazil. Both of those things took a significant level of skill, knowledge, and coordination. From there, the one video made it to the TV networks and to newspapers (I use that term loosely these days) like the Washington Post. What was that pathway, specifically? A p.r. firm? Political staffers? Who, exactly, constituted the transmission belt?

      I think that CNN, the Washington Post, and other media outlets will be loath to have any of this come out. Therefore, if Sandmann’s lawsuit(s) proceed to discovery, I think there will be swift and substantial settlement offers. I further predict that Sandmann and his parents will accept those offers, and that the numbers will never be disclosed, nor will that “transmission belt” that I’ve mentioned.

      As a citizen and as a former journalist who is acutely distressed by what has happened to his profession, I would like to know the “back story” here. I think it would be a major public service for that to come out. The incident was an absolute travesty, and we’d all be better off if we knew exactly and on the record how this came to be. On the other hand, Nick Sandmann is truly a victim, and I wouldn’t blame him or his parents if they took a pile of money and moved on.

DouglasJBender | March 2, 2019 at 11:50 pm

Given the facts as known, it should be obvious that the Main-Stream Media recklessly and with malice ran with and promoted several vicious lies, with the intent to smear and defame Nick Sandmann and the Covington High School students simply because they are pro-life and support President Trump, and by so doing they were attacking Trump and his supporters generally. It’s utterly obvious.

It’s a wonder that our legal system here in America can be so complicated and convoluted that true justice might not be served in this case. It would be a travesty of justice if Nick Sandmann’s lawsuit didn’t result in a judgement in his favor for tens of millions of dollars, if not over $100 million.

I trust that the lawyer knows what he is doing. He might be intending to push for a reversal or clarification of existing case law, which does not take into account the explosive viral nature of today’s social media. What about editing for an incomplete view an event to put the kids in a bad light. I believe it failed with Zimmerman regarding the deceptive editing, but here, the facts are different.

Please, edit button needed!

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