Free Speech

Dean Lyrissa Lidsky on the Nicholas Sandmann Litigation

Dean Lidsky is a libel law scholar, and one of the two Reporters of the Restatement (Third) of Torts: Defamation & Privacy.

|The Volokh Conspiracy |

I saw and liked her post on Prawfsblawg about this, and she graciously agreed to let me reprint it here:

Nicholas Sandmann settled his defamation action against the Washington Post this week, and he is not done yet.

Sandmann's defamation suits arose after several media outlets caricatured him as a smirking racist based on a video clip of him wearing a Make America Great Again hat and watching a Native American man beating a drum amidst a chaotic crowd at the Lincoln Memorial. The video clip went viral after it was posted by someone at the scene, and the media picked it up for repetition and commentary. Their spin on Sandman's supposed smirk was supported by statements from Nathan Phillips, the Native American man at the scene. The viral video spurred viral outrage.

The problem was that the video as a whole, which was readily available, tended to dispel the narrative gleaned from the clip of Sandmann and Phillips. Viewing the video as a whole, Sandmann did not appear to be in a confrontational posture vis-a-vis the Native American man or others at the scene but instead seemed to be in the posture of an awkward teenager watching a curious scene with his peers as a group of Black Hebrew Israelites hurled insults and invective at them.

Sandmann was fortunate to procure the counsel of famed attorney L. Lin Wood, who filed defamation suits against ABC News,  NBC News, CBS News, the New York Times, Gannett, Twitter, and Rolling Stone; having already settled with CNN and the Washington Post, Sandmann is still seeking damages in the aggregate of over $750 million, and he has threatened additional lawsuits.

As a lawyer, I hesitate to put too much significance on any case before it has made its way into a published appellate opinion. Until then, it may very well be an anomaly. This case has drawn extensive publicity and partisan commentary because it has come to represent a strike against the perceived arrogance and bias of the mainstream media and the slipshod investigative habits old and new media actors employ in the digital era.

On its face, the video clip of Sandmann, together with statements made by the Native American man at the scene, seemed to confirm what many liberal partisans seem to believe: Anyone who wears a MAGA hat must be a heartless white supremacist. It is clear that many media outlets took the clip on its face and republished it and drew conclusions from it without watching the whole video, which became readily available at a rarely early juncture in the whole controversy.

Conservative partisans have attributed the media's rush to judgment to bias at a minimum and possibly malice, but it is just as likely to be a result of laziness and a desire not to fall behind digital competitors. Regardless, Sandmann's settlements have led some to call for more defamation lawsuits to hold media accountable (and may be part of a larger trend of plaintiffs using defamation suits strategically as vehicles for political messages, but that's a story for another day, Devin Nunes).

The partisan lenses through which the Sandmann cases are being refracted obscure the interesting legal questions the cases raise. One important question is about what's required to prove actual malice in this case, but another is this: under what conditions does a person who "goes viral" by being in the wrong place at the wrong time become a public figure for purposes of defamation law, and does it matter if that person is a child?

The distinction between public figures and private figures is crucial in defamation law, because private figures can recover for defamation by proving the defendant published a defamatory falsehood about them negligently, but public figures must prove actual malice, that is, that the defendant published the defamatory falsehood knowingly or with reckless disregard of the truth. (Actual malice is a term of art not to be confused with common law malice). Sandmann's cases become much harder to win if he is a public figure and must prove actual malice, although he may choose to prove actual malice even if he is deemed a private figure, because doing so gives him access to larger damages awards.

Some commentators have suggested that Sandmann should be treated as a limited-purpose public figure because he became embroiled in an event that was clearly of public concern at the site of the Lincoln Memorial. The Supreme Court's cases defining the category of limited-purpose public figures predate social media, but they do involve people who were thrust into larger controversies by the press or partisans; in general, they suggest that becoming a limited-purpose public figure requires a plaintiff to do something more than being in the wrong place at the wrong time and thus becoming fodder for public controversy.

For example, in Time Inc. v. Firestone, five Supreme Court justices concluded that a woman married into a prominent family did not become a public figure simply by seeking a divorce through the judicial process. In Wolston v. Reader's Digest Ass'n, the Court held that a man who had previously been convicted of contempt for refusing to respond to a grand jury investigation on mental health grounds was not a public figure. And in Hutchinson v. Proxmire, a research scientist applying for a federal grant was not public figure, either.

Extrapolating from the Supreme Court cases, plaintiff should not be treated as a limited-purpose public figure because others embroil him in a public controversy of their creation: his entrance into the controversy must involve some degree of volition. The absence of meaningful volition is bolstered by the fact he was a minor on a school field trip standing on the steps of a public monument when he went viral.

Even examining Sandmann's actions through the lens of the multiple factors indicating limited-purpose public figure status elucidated by lower courts, Sandmann arguably did not do "enough" to be treated as a limited-purpose public figure. The factors lower courts look to often include whether (1) the plaintiff has access to channels of effective communication; (2) the plaintiff voluntarily assumed a role of special prominence in the public controversy; (3) the plaintiff sought to influence the resolution or outcome of the controversy; (4) the controversy existed prior to the publication of the defamatory statement; and (5) the plaintiff retained public figure status at the time of the alleged defamation. Sandmann apparently did nothing to ask for the infamy that attached to him based on the publication and misinterpretation of the viral video clip (and likely spurred at least in part by his hat). He did, however, gain access to the media after the fact to rebut any allegedly defamatory falsehoods. For some courts, this might be enough to tip Sandmann into the limited-purpose public figure category (see, for example, Gilmore v. Jones, 370 F. Supp. 3d 630 (E.D. Va. 2019), though that conclusion would not be faithful to the parameters of the category defined by the Supreme Court.

A better, though still problematic, argument is that Sandmann and other "victims" of viral videos like him are involuntary public figures. This category comes from dicta in the Supreme Court's 1974 case, Gertz v.Robert Welch, in which the Supreme Court speculated: "Hypothetically it may be possible for someone to become a public figure through no purposeful action of his own."  The Supreme Court has left the definition of the category to the lower courts, which have not reached consensus on how to define involuntary public figures and, indeed, whether the category even continues to exist.  (Cf., e.g., Clyburn v. News World Communications, Inc., 1990; Marcone v. Penthouse Int'l Magazine, 1985; Schultz v. Readers Digest Ass'n, 1979)

One approach is represented by Dameron v. Washington Magazine, Inc, 779 F.2d 736 (D.C. Cir. 1985).  A plane crashed when Dameron was the sole air-traffic controller on duty, although subsequent investigations absolved him of any blame for the crash.  Eight years later, however, a magazine article attributed the crash to controller error.  The District of Columbia Circuit Court of Appeals held that Dameron was an involuntary public figure for purposes of discussion of the crash, and therefore his libel action failed for lack of proof of actual malice on the part of the magazine. The D.C. Circuit concluded that even though Dameron had taken no voluntary actions,  "[t]here was indisputably a public controversy" in which "Dameron played a central role."  Thus, the court concluded that a person may become an public figure simply by being in the wrong place at the wrong time.

The US Court of Appeals for the Fourth Circuit took issue with this approach in Wells v. Liddy on the grounds that it "rest[s] involuntary public figure status upon 'sheer bad luck.'"  According to the Fourth Circuit, the relevant factors in determining involuntary public figure status are (1) whether the allegedly defamatory statement arose in the context of a discussion of a "significant public controversy" in which the plaintiff was a "central figure," and (2) whether the plaintiff "assumed the risk of publicity."  A plaintiff assumes the risk of publicity by "pursu[ing] a course of conduct from which it was reasonably foreseeable, at the time of the conduct, that public interest would arise."  The court also demanded that, as in the case of limited-purpose public figures, the controversy must pre-exist the defamation, and the plaintiff must "retain[ ] public figure status at the time of the alleged defamation."  The Liddy court was thus much more careful than the Dameron court not to conflate public interest in an individual with that individual's involvement in a public controversy.

Sandmann's attorney Lin Wood is familiar with these categories. Lin Wood famously represented Richard Jewell, the security guard at the 1996 Olympics who was falsely reported in the media to have planted the bomb that killed two and injured 110.  Jewell, far from being the culprit, was actually a hero: he spotted the bomb and prevented more people from being injured.  Nonetheless, the mere fact that he was in the wrong place at the wrong time and thus his actions became newsworthy led a Georgia court to label him an involuntary public figure when he sued the media for publishing defamatory falsehoods about him.

Although Sandmann still has many defamation battles left to fight, they may never result in a precedent-setting legal opinion guiding the development of defamation doctrine in the digital era. In the meantime, though, these cases give those of us who love defamation law plenty to talk about.

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  1. It seems to me that public figure status has to be based solely on events occurring before the alleged defamation.

    I don’t think that infamy resulting from publication of the allegedly defamatory material at issue in the lawsuit can count towards public figure status.

    Otherwise, the law rewards big liars, treating them much better than small liars. It seems profoundly unjust, and hardly consistent with the concept of equal protection of the law, to reward mega-defamers solely for being more successful at defamation. Allowing big liars to get away with lies that small liars can’t results in punishing people, not for defamation, but for unsuccessful defamation.

    1. Exactly this.

      Defamation must be public; if you mutter a lie about someone that no one hears, it’s not slander. If you type something that no one sees, it’s not libel.

      “We should prevail in a defamation suit because we lied so thoroughly about a kid that he went from a nobody to a household name on the basis of our lie” is incoherent and evil.

      The correct standard is, as you say, whether or not Sandmann was a public figure prior to the defamation.

      1. “‘We should prevail in a defamation suit because we lied so thoroughly about a kid that he went from a nobody to a household name on the basis of our lie’ is incoherent and evil.”

        Whereas “we should prevail in a defamation suit because the plaintiff can’t show how anything we did harmed his finances” is a perfectly good legal argument.

  2. I don’t see how the defamation itself can ever be enough to make somebody a public figure. If that were enough, the media would basically be categorically immune to defamation suits.

    1. I think that is what they would precisely like…

      1. Just because the Constitution says there will be no laws abridging the freedom of speech or of the press is no reason to actually give anyone the freedoms of speech or of the press.

    2. I think I agree with this.

      To flesh it out, absent the publication of the video, there is no controversy. Assume the video didn’t exist, but instead I called the WaPo the next day to say that I had seen a teenager in a Maga hat standing in front of a Native American and smirking. Do you really think the reporter would have grabbed her tape recorder and run out to meet me?

      1. Yes…

        Anything that fits the narrative.

  3. I’ve had the pleasure of meeting Dean Lidsky; I can honestly say that there are few people that I would trust more in matters of media and defamation law.

    I am personally concerned about weaponizing defamation to use in lawfare as we saw with Thiel and the Gizmodo entities. The law is not perfect, and litigation is expensive; bankroll enough cases, and one will get through if your sole purpose is to harass the other side and make them spend money.

    That said, the danger that we see (and is alluded to in the above piece) is the speed of the dissemination of the news; when everything is going so fast, when the news is “viral,” who has time to verify and look at everything? Best practices fall by the wayside, and people can get hurt.

    Anyway, the limited-purpose public figure discussion is interesting. I personally believe that, despite the dicta, it should require at least some affirmative action by a person to become a public figure (limited or not) for purposes of defamation law. I realize that this might make some cases more difficult to report, when there is a nominally private individual caught up in a matter of public concern, but … well, be more careful. People have lives.

    1. I don’t see how weaponizing defamation is such a significant problem. The worst case scenario appears to be that we get the news a day later. OTOH, the current climate we get a lie, and then the actual news comes out a day later, and often never makes it into the public. You still have to prove that there is a factual claim that is objectively incorrect and damaging.

      1. It’s two separate issues.

        The whole issue of virality, and the actual malice/negligence standard (public figures etc.) is an interesting one from a public policy perspective in that it contrasts modern technology and robust free speech with individual’s desires not to be thrust into controversy and defamed. I personally side with the individual, but given the vector of technology, I think that this will end up being a minority opinion. When the youth is used to livestreaming and being on-line and the latest youtube/twitch drama, who cares about the niceties of factchecking.

        What I am more concerned about is, since we no longer have any real issues with those fuddy-duddy concepts like champerty, maintenance, and barratry, you can have people (like Peter Thiel and others) who just pay for endless lawsuits.

        Eventually, you get the magic alchemy of lawsuit, jurisdiction, and judge, and you get lucky. If your goal is to ruin someone, you can always do it through litigation.

        1. Here’s the thing with Thiel and Gawker. It wasn’t the legal fees that bankrupted them — it was the damages award. If Gawker hadn’t actually defamed the Hulkamaniac, they’d still be dropping deuces in the giant cesspool of the internet.

          1. Here’s the thing about Thiel and Gawker. You’re wrong.

            Hogan didn’t bring that lawsuit. Thiel had people go through all of the various websites, and bring all possible lawsuits to him. And he was bankrolling a TON of lawsuits (such as the “I invented email guy.”). He was choosing cases and jurisdictions.

            And in the Hogan case, he made sure his attorney (because it wasn’t Hogan’s) do the following: A- refuse any settlement discussions, and B- plead to get around insurance (!!!) so insurance wouldn’t be paying for it.

            And then you get a notoriously bad state court judge, and it’s a perfect recipe.

            So because of the rules for posting bonds for appeals,. they were screwed. And they were even more screwed because they knew, after the verdict, that Thiel was launching more and more lawsuits against them.

            Had they been able to appeal, I am reasonably confident that they would have won, eventually. But it wouldn’t matter, because there were more lawsuits coming.

            1. I don’t really want to get into details, because there’s a ton of stuff that I know that is cloaked by privileges. But you are quite wrong about a number of things, from how the Bollea lawsuit was commenced, to what went on in the settlement negotiations.

              I can also tell you- because this is public- that Gawker brought a fully briefed appeal of the denial of its motion to dismiss, and the Florida Court of Appeal unanimously ruled that the case could continue. So it wasn’t “one bad state court judge”.

              I was writing the appellate brief for Bollea (Hulk Hogan) when the case settled. We had a very strong position. If you want to argue that it is possible that the Florida Court of Appeal would cut down our damages, I agree that was a possible result (although it was also possible that the damages award would be affirmed in toto). But the causes of action were consistent with Bartnicki v. Vopper- publishing a secretly recorded, unredacted, explicit sex video is not “a matter of public concern”. It’s not protected by the First Amendment just because the victim of the revenge porn is famous.

              And one more thing. It wasn’t as though this was the only time Gawker did absolutely tortious stuff. They published a link to Erin Andrews’ peephole video. They published an explicit video of a girl getting raped in the bathroom of a sports bar. They created a website to facilitate stalking celebrities.

              Thiel didn’t destroy Gawker. Gawker handed him all the ammunition.

              1. Is there a single person who honestly believes Hogan’s claim that it was “secretly recorded”?

                1. Well, I saw the entire 30 minute DVD which Gawker produced in discovery, plus portions of two other videos that Bubba Clem recorded and which were part of the federal extortion investigation in Tampa.

                  In all that footage, the camera is stationary, positioned on the ceiling in the corner. Bubba Clem testified in deposition that he positioned it to look like a security device, so it would not arouse any suspicion. At no point during any of the videos does Terry Bollea (Hulk Hogan) acknowledge the presence of the camera; nor does Heather Clem ever acknowledge it in his presence. At no time does anyone appear to play to the camera.

                  In addition, famously, Bollea said the n-word on one of the videos, something that an image conscious professional wrestler would never do if he knew a camera was running. He also said derogatory things about his daughter, a celebrity, which he clearly would not have said had he known he was on camera.

                  Bubba testified it was a secret recording. So did Heather.

                  In addition, as part of the Tampa investigation, the government found other videos that Bubba had recorded of his wife having sex with other men including some other celebrities. The identities of these people have never been publicly revealed, though I have some inkling of who some of them were. This, of course, strongly suggests that Bubba was involved in either some sort of scheme or some sort of fetish that included the secret recording of famous people hooking up with Heather.

                  In short, there is absolutely not a shred of evidence that Terry Bollea knew he was being recorded, and extensive evidence that he did not.

                  1. You are very careful to talk about “evidence,” but of course Judge Campbell excluded a whole bunch of stuff from evidence, and Bubba refused to testify at trial. And Heather claimed not to know about the recording either, except of course that there’s reason to think she did.

                    And Gawker couldn’t challenge Campbell’s evidentiary rulings because of the absurd appeal bond.

            2. I don’t think “There are tons of non-frivolous libel and invasion of privacy claims out there waiting to be filed against us, and we don’t have the means to fight them all” is a particularly compelling defense.

              That said, I do tend to err on the side of protecting speech, and support broad anti-SLAPP protections to protect against abusive litigation.

              1. Of all the narratives about Thiel and litigation financing, that’s the one that ticks me off the most. Yes, I agree, if a bunch of frivolous or substantively meritless suits were enough to bankrupt a media company, even a malevolent one like Gawker, that would definitely be a very bad thing.

                But in actuality, that’s vanishingly unlikely to happen, and certainly did not happen to Gawker. For that to happen, you’d have to imagine that merely incurring the costs of motions to dismiss, anti-SLAPP motions, and maybe some discovery expenses (which are likely covered by a media errors and omissions policy) are going to bankrupt a media company. That’s pretty unlikely, and the fact that it won’t work is a reason why you don’t see rich people trying to do this.

                On the other hand, if a media company decides, as Gawker did, that privacy doesn’t matter and that they can go ahead and commit egregious torts against people, well, yes, you are exposed to big damages awards. It’s not Peter Thiel’s fault, though.

                1. It’s not Peter Thiel’s fault, though.

                  As Loki said some unspecified lawyers, guided by Thiel, pleaded around insurance. One might ask whose interests that was in, and whether that satisfies a lawyer’s ethical duties.

                  1. That’s not what happened. I know. I was involved in that decision.

                    There was a single claim for negligence. It was going to get thrown out anyway, because under Florida law we couldn’t make it work. Meanwhile, based on that one claim, Gawker had insurance companies paying their entire defense (well in excess of what the policies required them to pay) and a management team that was so drunk on their First Amendment argument that they would fight us all the way. We had even heard that Gawker had been in legal disputes with their insurance companies back in New York and basically were forcing them to pay for an incredibly extravagant defense.

                    The hope was precisely the contrary of what Nick Denton thought. That by dismissing the claim- which was going to get dismissed anyway- we would be turning off their attorney’s fees spigot, which would force them to get serious about settling.

                    It didn’t work. The parties remained too far apart. But there was NEVER a notion that the case wouldn’t settle because of third party financing. We dropped the negligence claim to try and increase the probability of a settlement.

                  2. How could it not satisfy the lawyer’s ethical duties? Are you saying that the lawyer did it against the desire of the client? I don’t know the details– was there a client and a litigation-financer, and their interests diverged?
                    Certainly, it is the duty of a lawyer to follow the wish of his client even in a grudge suit, where the client refuses to settle even though it would cost him more to go to trial.

            3. “I invented the email guy”

              Shiva Ayyadurai right? I met that guy. He has really weird and wrong views about vaccines (which of course dominates the discussions on him) and his insistance that he invented email makes him seem like a crazy person. Also the whole anti-vaccine thing in the middle of the pandemic … ok he is.

              But weirdly enough from my conversation with him he is either a genius or really good salesman. His main project, until his crazy senate run, is essentially remaking the medical field from an engineering perspective, and the work he has done is really interesting. Also correctly diagnosing some of the conformist and problematic aspects of AI (no causality) and working to fix them.

              Strange person. But not a complete idiot. Wish he would just focus on the part of his work thats actually interesting and insightful. Although of course I wish Elon Musk would do the same thing … gets thats the price.

        2. Anti-SLAPP laws already deal with the problem pretty easily IF the lawsuits are frivolous. They give extremely quick dismissal and fee shifting. The problem media companies like Deadspin have is that the claims against them have great merit, because they publish stories that are “too good to factcheck” or they publish things that are downright disgusting like the Hogan tape (basically revenge porn).

          1. Very few states have good anti-SLAPP laws.

            1. If frivolous libel suits become a common thing its still an easy fix. Even without anti-SLAPP laws frivolous suits still don’t survive a MTD, so its hardly an effective nuisance suit. The theory that Peter Thiel and George Soros are going to use libel lawsuits as the vehicle for their proxy war is pretty fanciful.

              1. If frivolous libel suits become a common thing

                If? I refer you to Devin Nunes (and his regular co-conspirator Steven Biss), who — with unclear financial backing — has been draining resources from his opponents by the truckload.

                Setting aside how easy it is to get past an MTD, anti-SLAPP laws are needed because the bar for “frivolous” is so high under existing doctrine as to make it almost impossible to secure sanctions against plaintiffs who bring completely meritless claims, even if you do get the case dismissed on an MTD. (I refer you to the aforementioned Nunes.) And if you’ve got effectively unlimited funds as Thiel does, you can bleed your targets with the death of 1,000 cuts. And if you do get past an MTD, forget about it. (And as the Gawker case shows, you only have to win big once for the coup de grace.)

                1. And if you’ve got effectively unlimited funds as Thiel does, you can bleed your targets with the death of 1,000 cuts.

                  Again, you keep discussing an imaginary world where Thiel bled Gawker to death with a thousand cuts, as opposed to the actual world where Gawker was brought down because of a completely meritorious lawsuit that exemplified conduct that it had repeatedly engaged in.

                  It’s actually extremely hard, close to impossible, to “bleed” a major news organization to death by a thousand frivolous lawsuits. Most of them will be quickly dismissed, and they will generally be covered by insurance. It’s not an effective strategy.

    2. I am personally concerned about weaponizing defamation to use in lawfare as we saw with Thiel and the Gizmodo entities.

      The fatal blow against the Gawker entities was struck in an invasion of privacy suit with obvious merit. That suit would have won even if Florida allowed no defamation suits at all.

      1. Even if Peter Thiel did finance the lawsuit against Gawker to bankrupt them, so what. Is that illegal? Unethical? No moreso than Gawkers actions over the years. They picked on the wrong guy.

        Maybe there is a lesson in there for media.

        1. It’s not illegal, but it’s not a great thing for rich people to be able to leverage litigation to ruin institutions they don’t care for.

          Bullying like that is not moral, no.

          1. Gawker reveled in bullying people, Sarcastro. And since they had tens of millions of dollars on hand, the only way Gawker’s bullying was going to stop is if someone with resources took them on.

            Had Thiel not done so, the Internet would be full of sites running on Gawker’s business model that nothing is truly private.

            1. Ah yes. Bullying is moral once you decide it’s against a bully.

              1. Since when is funding a meritorious lawsuit “bullying”.

                If you want to criticize Thiel’s motives, have at it. But it’s kind of like if someone decided to bankroll the Goldmans lawsuit against OJ Simpson because they had a personal beef with Simpson. OK, you don’t like the motives. But that doesn’t mean OJ Simpson didn’t commit a tort and that the plaintiffs didn’t deserve redress.

                That’s exactly what happened here. Gawker was a repeat tortfeasor. They were relying on the belief that nobody could afford to sue them.

                1. No we should give Sarcastr0 what he demands and condemn third parties paying for lawsuits. The ACLU are such monsters for those actions, how dare they cover lawsuit expenses for others.

    3. “That said, the danger that we see (and is alluded to in the above piece) is the speed of the dissemination of the news; when everything is going so fast, when the news is “viral,” who has time to verify and look at everything? Best practices fall by the wayside, and people can get hurt.”

      But, in this case, critically, they didn’t just defame him in the heat of the moment, when there was some possibility that they honestly believed their account of events. Within hours they would have had the evidence contradicting it, and they stuck by their defamatory version of events for weeks. You STILL won’t find proper corrections attached to all their coverage of the story; Some of their reports still, even after corrections, (Which only came a couple weeks later.) claim that the students “taunted” Philips.

      If they’d promptly corrected the story, they’d have been in a much better position. Instead they continued defaming him even after they knew their account was defamatory.

  4. “the fact he was a minor on a school field trip standing on the steps of a public monument when he went viral.”

    That fact leaves out another fact: That the “school field trip” was for the express purpose of engaging in political protest (against abortion, as it happens) in the area where the incident took place. He wasn’t just a tourist waiting for a bus. He was playing politics in public and only became a frivolous/malicious litigant when that turned out differently than he anticipated.

    1. The “her skirt was too short” theory of defamation law.

    2. Do you think that everybody, particularity minors, whose parents engage in the first amendment right to peaceably assemble is open season?

    3. The fact that he was previously in an anti-abortion march had nothing to do with the defamation of Sandman. He would have been subjected to exactly the same defamatory “news” coverage if he had been at a soccer match or rock concert. What made him the target was his MAGA hat and if that is enough to make someone a public figure, absolutely anything is–wearing a campaign button, telling someone who you intend to vote for, or even wearing some candidate’s campaign colors.

      1. “What made him the target was his MAGA hat”

        The MAGA had and the goofy look, aka the “smirk”.

    4. “That fact leaves out another fact: That the “school field trip” was for the express purpose of engaging in political protest (against abortion, as it happens) in the area where the incident took place.”

      Which, IIUC, would make him a limited purpose public figure for purposes of abortion. But the Wapo didn’t lie and say he had an abortion, they lied and said he was a racist.

      1. If he had spoken at the rally, it might have made him a limited purpose public figure with respect to abortion. Simply attending a rally would not.

      2. “they lied and said he was a racist.”

        Perhaps the reason Sandmann settled was because he couldn’t prove this element of his claim.

    5. Under this theory, I presume you would be comfortable with conservative media defaming any person who marches for BLM, peacefully, with a permit, and in broad daylight.

      1. I would be comfortable with the media making assumptions about the political views of any person who marches for BLM, peacefull, with a permit, and in broad daylight.

        Making assumptions about the political views of someone isn’t “defamation,” even if the assumptions are incorrect.

        I’m can’t really blame Sandmann. Some ambulance chaser turned him on to a scam that he couldn’t lose on. If his frivolous/malicious suits succeeded in court (vanishingly unlikely) or if the victims settled (which is what happened), he was set for life. If his suits failed, he would end up with at least a temporary career whining about how persecuted he was for honoraria at “conservative” events. What high schooler wouldn’t take THAT deal?

      2. ” I presume you would be comfortable with conservative media defaming any person who marches for BLM, peacefully, with a permit, and in broad daylight.”

        This is offered as a hypothetical, despite being entirely real. Approximately zero of the BLM marchers have shown up in court to claim they were somehow damaged to the tune of $750 million by it.

  5. The increase in media intrusion and speed of dissemination via electronic communications needs some counterbalance. It is clear that even the old media have increasingly become reckless in reporting false and even dishonest “facts” about prominent events involving individuals whether they are Richard Jewel or Michael Brown.

  6. “Conservative partisans have attributed the media’s rush to judgment to bias at a minimum and possibly malice, but it is just as likely to be a result of laziness and a desire not to fall behind digital competitors.”

    This is posed as an either/or, as if it’s logically impossible to be biased and lazy at the same time.

    I’d say that laziness and bias can often go together, each reinforcing the other.

    1. ” as if it’s logically impossible to be biased and lazy at the same time.”

      Being lazy means you don’t want to put in any effort. Bias to the point of malice takes effort. Therefore, being biased to the point of malice does indicate a lack of laziness, and vice versa.

      I’m pretty sure YOU can be both lazy and biased, though.

  7. ” . . . but it is just as likely to be a result of laziness . . . ”

    Said laziness being evidence of malice?

    Has there ever been a defense in a ‘slip and fall’ case where just being too damn lazy to mop up a spill was valid?
    A couple of minutes with an internet search seems a reasonable standard to impose on ‘reporters’ before a personal attack.
    If those damn fools want some kind of immunity because they claim to be journalists, they have a responsibility to be right, not fast.
    How much would “journalism” change if “news” had to be ad free and demonetized?

    (And just for the record, that poor kid was NOT a public figure.)

    1. “Said laziness being evidence of malice?”

      No, because laziness isn’t evidence of malice. Malice takes effort, and laziness is the lack of effort.

      “Has there ever been a defense in a ‘slip and fall’ case where just being too damn lazy to mop up a spill was valid?”

      No, because premises liability is strict. So making no effort to prevent a slip and fall doesn’t negate one of the required elements of the tort. Freedom of speech and of the press are actually rights guaranteed in the Constitution, so the plaintiff has to work harder to establish a valid claim.

  8. These decisions from the DC Circuit and the E.D. Virginia about what it takes to become a limited public figure seem to be saying that an otherwise unknown person can become a public figure for Times v Sullivan purposes if anyone claiming to be a journalist decides to publish allegedly newsworthy (and just about anything is “newsworthy” to someone) defamatory information about the person, regardless of whether it is true or false. Those decisions are for all practical purposes revoking libel and slander laws in every case in which a plaintiff is unable to satisfy the so-called malice standard. Decisions of this nature are one of the prime reasons for the recklessness and arrogance of modern American media.

  9. Sandmann’s sole offense was being white in public.

    1. Which is life-threatening dangerous these days, unless you’re burning down black businesses and hurling human shit at black police officers.

    2. Recent developments indicate Sandmann’s development as a fledgling bigot and disaffected clinger will include a role as a featured speaker at the Republican National Convention this week.

      In that role, he will be appeasing bigots and bigotry as an adult in a prominent, public — and, one may conclude, entirely voluntarily — manner.

      However much he has obtained from settlement, he has chosen the wrong end of bright flight and the wrong side of history, remaining on a downscale (Transylvania), backwater (Kentucky) trajectory. Mostly, he has become a smart-ass right-winger Twitterer, destined to spend the rest of his life as a drawling culture war loser, complying with the preferences of better people.

      1. And if he doesn’t comply, his betters can just execute him like that little white fiver year old boy whose better executed him for not complying with his betters demand he not be racist on his racist tricycle.

      2. The media sadly gave him little chance to ever live a “normal” life. I don’t think he had much of a choice but to embrace the public persona in which the media cast him (albeit in a false light) and hopefully be able to make a living doing that.

      3. “…destined to spend the rest of his life as a drawling culture war loser, complying with the preferences of better people.”

        Still beats the fate of the rich lawyers like Kirkland, who are going to be the first motherfuckers AOC will put against the wall.

      4. “…complying with the preferences of better people.”

        You know, by putting your fist up to support black lives, when the better white people demand it.

        Kirkland’s people.

  10. “Conservative partisans have attributed the media’s rush to judgment to bias at a minimum and possibly malice, but it is just as likely to be a result of laziness and a desire not to fall behind digital competitors.”

    I agree that laziness and a rush to be “first” are probably driving at least *some* of the mistakes that are made in the digital age. However, if those were the main reasons, then these sorts of “mistakes” wouldn’t usually be going in just one direction.

    1. The whole story is the media is lazy and supremely biased. They saw a set of facts that fits nicely into their cookie cutter narrative. Didn’t matter the controversy was centered around a 15 year old. They just ran with it because that is what Orangemanbad journalism does.

    2. This has nothing to do with laziness.
      Its pure malice. Not against a white teenager from a private school. Malice against a political opponent. There is only one fact. The MAGA hat.
      The DNC saw an opportunity to smear President Trump.
      The DNC was just fine lying about the entirety of the event, to further their attack on President Trump. They are still lying about the event.

      That’s why the lawsuits have prevailed. The DNC is intent on lying and slandering anyone to advance the DNC narrative of the moment.

      1. “There is only one fact. The MAGA hat.”

        There is one other fact: The kid looked particularly goofy in the widely-distributed still image distributed by various people on the Internet. The DNC didn’t do that.

    3. These sorts of mistakes don’t usually go in just one direction.

  11. The Washington Post will no longer be of any concern to us. I’ve just received word that the courts have dissolved the newspaper permanently. The last remnants of the DC press have been swept away.

    1. Flee? In our moment of triumph?
      –famous last words of Grand Moff Tarkin, uttered just before his insignificant technological terror was destroyed by a firecracker in the tailpipe.

  12. I will tell you my problem with this essay:

    Nicholas Sandmann settled his defamation action against the Washington Post this week, and he is not done yet.

    ….

    Sandmann was fortunate to procure the counsel of famed attorney L. Lin Wood, who filed defamation suits against ABC News, NBC News, CBS News, the New York Times, Gannett, Twitter, and Rolling Stone; having already settled with CNN and the Washington Post, Sandmann is still seeking damages in the aggregate of over $750 million, and he has threatened additional lawsuits.

    As a lawyer, I hesitate to put too much significance on any case before it has made its way into a published appellate opinion….

    And yet, Dean Lidsky proceeds to do exactly that.

    My specific problem is that this kind of discussion gives the public the ridiculously false impression that just because a plaintiff’s lawyer chooses a ridiculous, plucked-from-thin-air number to sue for — e.g., “damages in the aggregate of over $750 million” — there must be some correlation between that number and the seriousness or credibility of the case.

    And there is definitely not.

    My well-educated guess is that CNN’s settlement with Sandmann had zero to do with the made-up, plucked-from-thin-air figure for which Lin Wood sued CNN on Sandmann’s behalf, nor very much to do with the likely range of jury verdicts which Sandmann might realistically win and hope to uphold on appeal. Instead, it had almost everything to do with CNN’s anticipated costs — both hard out of pocket costs and soft “distraction/inconvenience” costs — from continuing the defend itself.

    This kind of nonsense leaves the public thinking there are pots of gold to be won in defamation cases, down to and including that nasty comment that their good-for-nothing ex-boyfriend or -girlfriend left about them on Facebook — and that is the exact opposite of the truth. No other category of would-be plaintiffs has remotely the same false set of expectations upon trying to hire a lawyer as defamation plaintiffs routinely, indeed, almost universally, do.

    Dean Lidsky ain’t helping by republishing Lin’s aggressive fantasy numbers in this way.

    1. Agreed that we have no idea how much they settled for, and almost certainly NOT what he was asking for.

      OTOH, this was not your run of the mill defamation case. They settled, despite having legal counsel on retainer, because they stood a good chance of losing if it went to trial. Because they really did screw the pooch here, if not with the initial report, by leaving the defamation uncorrected for so long when they had to have known the falsity of their original story within hours.

      1. However this is probably making Sandman’s lawyers some decent money and same for Sandman.

        More interestingly, many private individuals piled on with really disgusting allegations with absolutely no factual basis. I wonder if this will turn into an assembly line operation suing thousands of people for $5,000 each?

        I agree with you that actual Selena numbers are probably in the hundreds of thousands to millions of dollars range, not the hundreds of millions of dollars range.

        One thing I think we should change… Confidential settlements of lawsuits should be considered against public policy and therefore unenforceable. Justice, including civil settlements, should be public.

        1. It’s reasonable to assume that the proceeds of the CNN settlement will first be applied to the reimbursement of Sandmann’s lawyers’ costs & expenses to date, which costs & expenses may have been fronted by his lawyers (in which case they’ll get the reimbursement).

          It would likewise be common for Sandmann’s counsel to suggest that some further portion of the settlement proceeds be held in order to finance the costs & expenses reasonably anticipated for the continuing lawsuits against other defendants who’ve not yet settled.

          CNN and Sandmann’s lawyers agreed to delay payment of its settlement until Sandmann turned 18, so that both sides could avoid the public proceedings in probate court that typically attend the approval of settlements benefiting minors. My educated guess is that now that Sandmann is legally an adult (and his release of CNN can be enforced, rather than voided at his option, as it could have been when he was still a minor), and the settlement consideration has been paid, that he and his family have had a substantial taste of that.

          I would be stunned, however, if the entire settlement with CNN were above the low-six figures, and if his “taste” therefrom were more than the mid-five figures.

          As for whether Sandmann’s lawyers: They’re benefited by the reimbursement of costs & expenses, if they’ve fronted those. And this is the very, very rare defamation case — involving an unquestionably solvent and deep-pocketed defendant (AT&T, the ultimate corporate parent of Time-Warner and its CNN division) and national publicity — which a rational plaintiff’s lawyer might take on a contingent fee, expecting to reap very substantial indirect benefits from the publicity associated with representing this plaintiff. If so, Sandmann’s lawyers may also have gotten a non-trivial taste of the proceeds.

          But I would be very, very surprised if either Sandmann or his lawyers have already found this case to be “very profitable” yet, unless you’re measuring profits in terms of national celebrity (which Lin Wood certainly does).

      2. We disagree about the likelihood that CNN would have lost, even in the trial court, and even with the jury. I’m unconvinced that Sandmann could survive a directed verdict motion, even though I think CNN is not remotely entitled to claim the benefit of the NYT v. Sullivan “public figure” analysis.

        But let’s assume for a moment, for purposes of argument, that Sandmann could win on liability and get that upheld on appeal, and focus on damages.

        He was a sixteen year old high school student. He didn’t lose his job, he hasn’t been denied entrance to college, on the basis that some employer or college was misled into believing some false statement of fact about him. His reputation — among the people who had ever heard of him — was very unlikely damaged by such a false statement of fact either: Those other kids in the lunchroom were not likely swayed to believe something false about him based on a CNN report. Even exemplary damages must, to be constitutional, bear some reasonable relationship to actual damages, and his actual damages are thin at best and entirely speculative.

        The notion that, collectively, these companies could have damaged young Mr. Sandmann to the tune of $750 million dollars is inflated by at least two orders of magnitude. There are a large handful of countries whose national annual gross domestic product is less than that. The only appropriate response when a lawyer claims that his or her client has sustained $750 million in damages from the defendants’ torts — even though said plaintiff is still whole in body, mind, and lifetime economic earning potential (arguably he’s better off now in that measure, because he’s a celebrity and that can be monetized) — is worth exactly one response from a lawyer like me who actually has practiced defamation law for almost four decades now:

        A long, loud, raspberry.

        1. I actually agree with you on the amount of the award. However,

          “His reputation — among the people who had ever heard of him — was very unlikely damaged by such a false statement of fact either:”

          WaPo actively saw to it that a huge number of people “ever heard of him”, and would have negative opinions of him. They put a lot of resources into making his name a known thing across the country, the world, even. AND making his reputation bad.

          To this day there are likely hundreds of thousand, maybe millions, of people Sandmann has never met, who know of him, might recognize him if they met, and think he’s a bigot, because the correction never reached them. That IS, in defamation terms, damage.

          1. @ Brett Bellmore: Fair point, well stated.

          2. ” They put a lot of resources into making his name a known thing across the country, the world, even. AND making his reputation bad.”

            It’s a bummer that all those people he’ll never interact with have preformed bad opinions of him. How much money does that cost him? $200 million, $300 million? Hurt feelings have zero economic value, unless you can get a jury to bite on IIED.

          3. “To this day there are likely hundreds of thousand, maybe millions, of people Sandmann has never met, who know of him, might recognize him if they met, and think he’s a bigot, because the correction never reached them. That IS, in defamation terms, damage.”

            Except it isn’t, Brett. Damage in defamation terms, is measured in dollars. And damages have to proven as an element of the claim. So, hundreds of thousands, possibly millions of people think Sandmann is a demonstrated racist… how does that cost him money?

        2. I’m writing a paper relevant to this. You are quite right that actual economic damages are small, or even negative. After all, he got to speak at the Republican Convention— though we have to be careful, because being a Holocaust survivor gives you a lot of cachet but we wouldn’t factor that against damages if you sued a concentration camp guard who beating of you helped make a good story for your book later.
          But consider disgorgement. The media sold a lot of advertisements using the Sandmann story. That was unjust enrichment. The law is unclear on when disgorgement applies– which is why I’m writing the paper– but the general doctrine (see the Restatement of Restitution) is that if the defendants unlawfully harms the plaintiff, the plaintiff is entitled to the profit defendant earned from his unlawful act. The unlawful gain could be much more than the harm to Sandman, and under this theory he could collect it all.

          1. ” The media sold a lot of advertisements using the Sandmann story. ”

            Horse shit.

      3. “They settled, despite having legal counsel on retainer, because they stood a good chance of losing if it went to trial.”

        Or, they settled despite having legal counsel ready to go, because the cost of fighting off the lawsuit was higher than the plaintiff’s “go away” number.

    2. Or CNN and other media companies didn’t want to wrangle with discovery. I imagine there were so not so nice emails to be uncovered. But my guess is the settlement was well under CNN’s insurance limit.

      1. Equally possibly, Sandmann’s parents didn’t want to have discovery, because they have possession of some records showing their goofy little angel saying some hard-to-defend things.

    3. ” Instead, it had almost everything to do with CNN’s anticipated costs — both hard out of pocket costs and soft “distraction/inconvenience” costs — from continuing the defend itself.”

      There’s also the issue of discovery. Once a plaintiff survives a motion to dismiss a defamation claim against a media or related company, they get to dig down deep into *everything* related to the decision to publish, not to correct, clarify or redact, etc. NO media company wants to turn over emails, notes and correspondence, no less have reporters, anchors, editors and producers be deposed. The risk of embarrassment or that the attorneys will find something more politically or personally damaging is too damned high.

      1. CNN’s lawyers get to dig down deep into everything Sandmann has ever written, and if they find one thing that shows nascent racism, the lawsuit is effectively over.

  13. We should be very cautious in allowing the media actions to create a limited public figure. The instant case is a good example of lazy and sloppy journalism that resulted in a viral story that could easily be shown to be misleading. Whether its the rush to be first, incompetence, laziness, or “this fits my narrative of society” by members of the media, they should not be allowed to give themselves a “get out of jail card for free card” by creating a limited public figure mountain for anyone to overcome. Allowing easy creation of a public figure promotes even lazier, sloppier, and irresponsible journalism. The designation of a public figure is game over in virtually every litigation. The worst of the worst reporter has to make an effort to not win when there is a public figure designation.

  14. That was one of the more interesting Comments section that I have ever read. I learned a lot. Thank you all.

  15. The post said:
    “It is clear that many media outlets took the clip on its face and republished it and drew conclusions from it without watching the whole video, which became readily available at a rarely early juncture in the whole controversy.”
    No, isn’t clear at all, and that’s crucial to the litigation. That theory implies the top-paid news reporters in the world are careless idiots, completely unprofessional and completely willing to report stuff they know might well be untrue. The better theory is that they DID look at the whole video, as you’d expect even a college newspaper reporter to do, and they deliberately decided to report the story falsely.

  16. Professor Volokh does have a good discussion of the “involuntary public figure” doctrine. It misses a key element of Sandmann’s case and many others, though: he was thrust into the public eye as a result of being defamed, and for no other reason. Unlike people involved in litigation, marrying into rich families, etc., he did nothing newsworthy himself, nothing of public interest. He became famous only because he was defamed: the media said he had behaved in a way that was of public interest when it wasn’t. Thus, I would think the doctrine of “unclean hands”, at least, would prevent the news media from raising a “public figure” defense. That doctrine says that if you do something unethical that creates a legal argument useful to you, you can’t use that argument. https://dictionary.law.com/Default.aspx?selected=2182#:~:text=unclean%20hands,the%20subject%20of%20the%20lawsuit. Famously, you can’t plead for mercy at a sentencing hearing for parricide that you’re an orphan. That’s what the media defendants want to do here.

    A corollary to that is that the defendants shouldn’t be able to plead that Sandmann is a public figure because he entered the public arena to defend himself. THEIR unethical behavior caused him to defend himself. It would be like saying that anyone who sues for defamation is per se a public figure because he entered the public arena and became newsworthy by virtue of filing a lawsuit.

  17. Oops– the nominal post author is Prof. Volokh, but it’s almost all a long quote from Dean Lidsky. Sorry, Eugene! I hope I’m not liable for defamation by attributing bad ideas to you.

  18. “The partisan lenses through which the Sandmann cases are being refracted obscure the interesting legal questions the cases raise”

    Such as how this kid has $750 million in damages from being identified as a dude with goofy look to him, and how his esteemed lawyer intends to prove those damages.

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