First Amendment Lawyers Say Covington Student Has No Case Against the Washington Post

“It’s more like one of these old fashioned cases filed on page 1 and dismissed on page 34,” attorney Ron Kuby tells TheWrap

Last Updated: February 20, 2019 @ 4:44 PM

Covington High School student Nicholas Sandmann’s $250 million defamation lawsuit against the Washington Post has little chance of success, according to most First Amendment lawyers interviewed by TheWrap.

Sandmann’s lawyers accuse the paper of “a modern-day form of McCarthyism” and “using its vast financial resources to enter the bully pulpit by publishing a series of false and defamatory print and online articles.” The articles center on Sandmann’s widely viewed face-off with Native American elder Nathan Philips.

But the Post is likely to be found guilty only of practicing journalism, according to three attorneys not involved in the case.

“It’s more like one of these old fashioned cases filed on page 1 and dismissed on page 34,” Ron Kuby, a First Amendment and civil rights attorney, told TheWrap on Wednesday. “If you report two sides of an encounter, you know that one side is ultimately going to be proven incorrect. That doesn’t mean you’re open for defamation claims.”

But Robert Precht, an ex-public defender and former assistant dean of the University of Michigan Law School said he believed Sandmann did have a strong case.

“The Post showed a reckless disregard of the truth when it portrayed the boys as Trumpian bullies, when in fact, the reality was much more complicated,” he told TheWrap. “The kids can easily show damage to their reputations caused by the firestorm of condemnations by public figures and social media posts.”

“I predict the case will settle long before trial with The Post apologizing and paying millions of dollars in damages,” he added. “This is not a case The Post would ever want to take to trial before a jury. The optics of an elitist Eastern paper going after Midwest farm boys would not play well to a jury.”

Since the landmark 1964 United States Supreme Court decision New York Times Co. v. Sullivan, public figures have had a greater burden proving libel than unknown people do. The lawyers who spoke to TheWrap said it is an open question whether Sandmann is a public figure.

Gary Bostwick, another first amendment and civil rights attorney, told TheWrap that even as a non-public figure,  Sandmann wouldn’t have a good case.

“They have written what in our business is called a ‘story complaint’ which is mostly written less formally and much more to get across a narrative,” Bostwick said.

Attorney Ron Coleman — who is currently representing the right-wing Proud Boys and Vice Media co-founder Gavin McInnes in a lawsuit against the Southern Poverty Law Center — also said he didn’t see how Sandmann could prevail.

“I’m not saying the kids, especially Sandmann, weren’t treated atrociously at multiple levels, and that they had a pretty unpleasant week of life,” Coleman told TheWrap. “But I don’t understand how the harm here can be quantified coherently.”

But Kuby said the Post might agree to apologize, without paying anything to Sandmann.

“I would suggest they offer some sort of apology/endowment that kind of recognizes that when a 16-year-old kid gets something wrong and the Washington Post makes it worse that it’s kind of on the grown-ups to make it right,” Kuby said.

Sandmann’s lawyers said they were confident they would prevail.

“We are confident we will defeat any motion filed in the hope of preventing Nicholas’ case from proceeding to discovery. And when we do and when we start engaging in discovery to develop a full factual record of the defendant’s wrongdoing, it will be the defendant who will likely cry ‘Uncle,’ not Nicholas Sandmann,” attorney Lin Wood told TheWrap.

Wood said that the Post would lose by any legal standard.

“The truth of the incident was available online contemporaneously with the edited video clip that went viral. Failure to review the full video before publishing is evidence of publication with a reckless disregard for the truth,” he said.

The most prominent supporter of the suit is President Donald Trump.

“Go get them Nick. Fake News,” he tweeted, quoting directly from the complaint — and racking up more than 20,000 retweets.

A rep for the Washington Post said the paper was “reviewing a copy of the lawsuit” and that its attorneys planned “to mount a vigorous defense.”

The Post was one of many news outlets that jumped on the story after a brief video of Sandmann and Phillips emerged on Twitter. Many critics accused Sandmann of mocking or taunting Phillips by staring at him and smiling.

The Catholic Diocese of Covington condemned the students. Former Vanity Fair contributor Kurt Eichenwald said the kids involved should all be denied work “in perpetuity.” He also shared close ups of every student’s face to his Twitter account so they could be identified. A Vulture writer said he wished the students would die. A GQ writer called for them to be doxxed.

But other video showed Philips approaching Sandmann and the other Covington students first. And Sandmann released a statement with his version of what had happened.

He said the incident began when a group of men began calling him and his classmates “racists,” “bigots,” “white crackers,” “f—ots,” and “incest kids.” The men were later identified as members of the group the Black Hebrew Israelites.

Sandmann said Philips approached him, locked eyes with him, and played his drum as they looked at each other. Sandmann later said on NBC’s “Today” that he was “not disrespectful to Mr. Phillips.”

“I respect him. I’d like to talk to him,” Sandmann said. “But I can’t say that I’m sorry for listening to him and standing there.”

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