Experts Weigh In on Massive Covington Lawsuit, Suggest Bill Maher Might Be Next
After the unprecedented outpouring of venom that accompanied the January release of video showing a confrontation involving boys from Covington High School comes an equally unprecedented lawsuit.
The family of Nicholas Sandmann, the teenager most prominently featured in videos of the January incident between the students and Native American activist Nathan Phillips, has sued The Washington Post for $250 million in a defamation case. Sandmann’s attorneys have said there is no question in their minds that the teen was damaged by what was falsely said about him.
The family’s lawyers have sent notices to more than 50 media outlets, celebrities and other figures that led the public charge against the teens.
Todd McMurtry, an attorney for Sandmann’s family said that “certainly CNN and Bill Maher did things that we consider to have crossed the line.”
“We think that the statements they made are defamatory, they’re not humorous and so certainly Bill Maher is somebody we are looking at very carefully and HBO for allowing him to make those defamatory statements,” he said last week, according to Fox News.
Lin Wood, another attorney on the case, said the suit is an attempt to change the current culture.
“Things have got to change and there has got to be accountability,” he said.
In a social media world that saw one initial Covington video cause massive amounts of hate to erupt until a fuller, clearer version emerged, the case will come down to two thorny issues, experts contend — whether Sandmann was a public figure and whether damages can be collected based upon opinions.
First will be the issue of whether Sandmann, who along with others that day was in Washington for the annual March for Life, was a public figure at the time of the incident, according to Fox. In general, public figures are individuals who come forward to take a leadership role in addressing societal or political issues, such as political candidates or speakers at major rallies.
Supreme Court decisions in the area of libel law have held that if the media publishes something false and defaming about an individual who is a public figure, it must have known it was false at the time of publication, but published it anyway. The law has also held that standard applies to what it calls a “limited public figure” who become prominent for speaking out or leading at a certain time or place.
However, for individuals who are not public figures, defendants must only prove negligence — in essence, that the media did not perform a sufficient job of checking facts before publishing.
McMurtry said Sandmann is covered either way, according to Fox.
“First, Nick Sandmann is a private individual so we only have to prove negligence,” McMurtry said, according to Fox. “However, if a ruling were to be different and they were to consider him an involuntary public figure and we had to prove malice, we would be able to do that because The Washington Post is a weaponized news outlet that used its power and strength to destroy Nick Sandmann’s reputation.
“And they did that without adequate and appropriate levels of journalistic integrity and reporting and that in itself is malicious. So, I feel comfortable with either standard,” he said.
Here he is talking about the case in a separate interview last week with Fox News.
Alan Dershowitz, emeritus professor of law at Harvard Law School, said Sandmann was clearly a private individual, The Hill reported.
“This kid is not a public figure,” he said. “He didn’t choose to run for office, he’s a kid in school who is applying for colleges and his reputation has been diminished in the eyes of some, and I think you have to distinguish between a high school kid and somebody who is the president of the United States, or a governor of a state or a justice of the Supreme Court.”
Dershowitz called the suit “a significant case” and said that he is “interested to see what the Post says and how it justifies reporting that turned out to be less than accurate.”
Another expert is not so sure. Frederick Lawrence, a distinguished lecturer at Georgetown Law School, told Fox that Sandmann, who was in Washington to be part of a public event, might well be ruled a limited public figure, which he said could ensure the Post wins the lawsuit.
Sandmann’s attorney have “a big, big hurdle to overcome and that is the standard of proving actual knowledge of falsity or reckless disregard for the truth,” he said.
Even if the newspaper “got it wrong, they did not recklessly get it wrong and, as a result, they will prevail,” Lawrence added.
Lawrence also said that much of the comment in the aftermath of the video was opinion, which is treated differently from factual reports.
“Opinions are not statements of falsity,” Lawrence said. “If I say ‘my neighbor is a creep’ it may not be nice… but it’s an opinion.”
The Post issued a statement stating it was “reviewing a copy of (the lawsuit), and we plan to mount a vigorous defense.”
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