First Amendment

The Media's Covington Coverage Was Appalling, but Nick Sandmann's Libel Lawsuit Is Not the Answer

A teenager wrongly accused of harassing a Native American activist sues The Washington Post for $250 million.


Screenshot via Youtube

Attorneys representing Nicholas Sandmann, the Covington Catholic High School student wrongly accused of harassing a Native American activist on the steps of the Lincoln Memorial, have filed a libel lawsuit against The Washington Post for misrepresenting what happened.

"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, a known Native American activist, who beat a drum and sang loudly within inches of his face," wrote Sandmann's attorneys, L. Lin Wood and Todd McMurtry, in their complaint, which was filed in Kentucky.

The suit asks for $250,000,000, which is the amount of money Amazon CEO Jeff Bezos paid to acquire the newspaper. There's a political dimension to all of this: Bezos is seen as a critic of President Trump, and Trump supporters view The Post as part of the anti-Trump establishment. The suit even accuses the paper of advancing an "easily documented, biased agenda" against the president.

Politics aside, the complaint makes a compelling case that The Post got the Covington story really, really wrong. Bezos's paper is not alone in this regard: Virtually the entire media—mainstream, left, and right—initially smeared the Covington kids as racists based on a short, misleading video clip of the incident. When additional video footage became available, we learned that far from being perpetrators of racial harassment, the high schoolers were on the receiving end of a torrent of verbal abuse from the Black Hebrew Israelites, a black nationalist cult group. In deciding to approach the boys, Phillips had intervened on the wrong side of this conflict. And while a few kids made insensitive tomahawk gestures, most simply continued the energetic pep rally cheer they had been doing even before Phillips arrived. Importantly, the kids did not consciously surround the man; he approached them. Sandmann has claimed his so-called "smirk" was actually a smile intended to defuse the situation—a claim supported by the extended video, which shows Sandmann quietly signaling to a classmate that engaging the Native American activists in argument was a bad idea.

Many media outlets revised their coverage in the wake of these new revelations, and many pundits apologized for the rush to judgment. Frustratingly, others have doubled down, and some have remained doggedly insistent that "we're never going to know exactly what happened that day," even though it's abundantly clear already.

So Sandmann's attorneys are clearly correct that the initial coverage of the incident was biased and inaccurate. But was it libel? I'm not persuaded.

Let's take a look at one The Post's early Sandmann articles, titled "'It was getting ugly': Native American drummer speaks on his encounter with MAGA-hat-wearing teens." The article is a completely one-sided look at what happened. It relies almost entirely on Nathan Phillips' account, quoting him and another Native American activist at length. These biased and misleading sources give readers the false impression that the Covington boys were aggressive, threatening, and intimidating. But note that it is not The Post itself asserting these claims; the paper is quoting sources.

Can a media outlet be held liable for quoting false information that it believed was true? In fact, yes. Recall that Rolling Stone lost a series of libel lawsuits relating to the University of Virginia rape hoax article even though author Sabrina Rubin Erdely's false assertions were supplied by her erroneous source, "Jackie." The court held that plaintiff Nicole Eramo, a dean at the university, should be considered a public figure, which meant that she had to prove not just negligence but actual malice on Rolling Stone's part, and she cleared even this higher bar. Assuming that Sandmann is considered a private figure, he will have an easier time.

But here's the problem: Phillips' statements, as quoted in The Post, are mostly of the opinion variety, and statements of opinion cannot be deemed libelous. They are not statements of fact. Again, compare to Rolling Stone. Erdely's article quoted Jackie as stating that Eramo and others said specific things that made light of Jackie's situation. These were false claims; Eramo et al never said any such things. Phillips, on the other hand, does not claim that Sandmann said something he did not say. He does claim to have heard "build the wall," but he attributes this comment to the crowd, not to Sandmann specifically. Any characterization of Sandmann as having smirked will fall into the opinion category—whether a facial expression is a smile or a smirk is obviously subjective.

There is one statement that does look like a potential assertion of fact rather than opinion. From The Post:

"It was getting ugly, and I was thinking: 'I've got to find myself an exit out of this situation and finish my song at the Lincoln Memorial,' " Phillips recalled. "I started going that way, and that guy in the hat stood in my way, and we were at an impasse. He just blocked my way and wouldn't allow me to retreat."

This strikes me as potential grounds for a libel claim. It may indeed be considered a statement of fact rather than opinion, and one that was incorrect. The false assertion certainly portrays Sandmann in a negative light, and The Post made little effort to corroborate it before the author went ahead and subjected a previously unknown teenage boy to all the negative publicity that comes with being the subject of hit piece in a major media outlet. But this is far from open and shut, as the media's failures in the Covington case, while substantial, are more open to interpretation than Rolling Stone's failures in the Virginia story.

Of course, there's a broader philosophical problem with trying to resolve the Covington debacle via lawsuit, even if Sandmann may have a case (albeit an extremely narrow one): It raises serious free speech concerns, and it could have significant repercussions for the media.

Some conservatives are probably pleased about such a possibility. They'd prefer it if the media were more reticent to publish unconfirmed, negative articles about the president and his supporters for fear of drawing lawsuits. (That's very clearly what Trump himself wants.) But a media environment where people could easily sue writers for getting things wrong would be a nightmare for anyone—including conservative writers and media personalities—who would like to hold a powerful person or entity accountable.

"The idea of routinely suing media companies is horrifying and could end up doing much more harm than good," wrote the conservative journalist Mark Hemingway in a terrific Federalist article about the history of libel law and the media. "I want free speech to be as robust and unfettered as possible, and I would rather live in a country where the media is too aggressive toward the powerful, rather than not enough. Even if the Covington case goes to trial and ends up deservedly holding the media to account for turning an innocent teenager into a national object of hatred, I worry such an outcome could set an alarming precedent."