Free speech or “modern-day McCarthyism”? Judge dismisses Covington teen’s $250M defamation suit against WaPo

Consider this the media version of “RTs ≠ endorsements.” The Covington Catholic High School teen who was smeared as a racist over a badly reported incident at the March for Life will not be able to recover damages from media outlets. A federal judge ruled that the Washington Post did not make false and defamatory claims about Sandmann, and that reporting what Nathan Phillips alleged was protected by the First Amendment.

It’s not the end of this, but it’s not likely to get much better on appeal:

A federal judge on Friday dismissed a multi-million dollar defamation lawsuit against The Washington Post over its coverage of an interaction between a Kentucky high school student and a Native American activist on the National Mall, which gained national attention after the video went viral.

Judge William O. Bertelsman dismissed the suit, stating that the Post’s coverage was protected as free speech and rejecting Covington Catholic High School student Nicholas Sandmann’s argument that the newspaper implied inaccurately that Sandmann had behaved in a menacing or violent way. The Post had quoted the activist, a veteran named Nathan Phillips, who said Sandmann stood in his way to get to the Lincoln Memorial in the Jan 19 incident.

Bertelsman wrote that though Phillips’ claim may have been inaccurate, the Post had a right to publish it. The Post couldn’t be sued for defamation simply if some of its reporting was inaccurate, he wrote, rather it had to both false and defamatory.

Bertelsman concluded that the Post had the right to report on Phillips’ point of view even if Phillips’ claims were “erroneous.” Bertelsman took Sandmann’s claims as fact but ruled that irrelevant to the defamation claim:

“The court accepts Sandmann’s statement that, when he was standing motionless in the confrontation with Phillips, his intent was to calm the situation and not impede or block anyone,” the judge wrote.

“However, Phillips did not see it that way. He concluded that he was being ‘blocked’ and not allowed to ‘retreat.’ He passed these conclusions on to The Post. They may have been erroneous, but . . . they are opinion protected by the First Amendment. And The Post is not liable for publishing these opinions.”

That’s not going to bode well for Sandmann’s other lawsuits. He has filed a similar claim against CNN and has identified over 50 other potential targets for legal action. Unless Sandmann can point to much more egregious conduct, especially statements of “facts” in reporting that were clearly false and published for defamation, this project doesn’t have much promise, as I wrote at the time:

In order to win a libel or defamation action, the plaintiffs have to show that the statements were objectively false, caused financial injury, and weren’t protected speech. The big problem for Sandmann and his attorneys will be the first and second points. Respondents will argue that they thought they had the full story from the first video, and they were at worst simply mistaken rather than acting with intent to defame. They might also argue that even the longer video remains open to a wide variety of interpretations, so there is no objective foundation for legal action. On top of that, what financial injury did a 16-year-old high-school student incur from a week of terrible coverage? His attorneys will argue that Sandmann’s prospects are damaged for life, but it’s going to be difficult to quantify those damages beyond sheer speculation.

As it happens, Bertelsman found problems with Sandmann’s argument on points 1 and 3. He also relied on Milkovich to note that the complaint’s reliance on figurative speech cut against precedent as well:

In his ruling, Bertelsman also cited the case, Milkovich v. Lorain Journal Co., writing that statements that are “loose, figurative” or “rhetorical hyperbole” are protected by the First Amendment because they can’t be proved true or false.

Bertelsman identified words used by The Post to describe the students as falling under the protection established in Milkovich: “swarmed,” “taunting,” “disrespect,” aggressive” and “rambunctious,” among others.

Those are terms of opinion rather than fact, and rely heavily on perspective. None of this makes the reporting on Sandmann and the Covington Catholic High School students good, of course. In fact, the reliance on these terms points to a certain bias that came through loudly and clearly at the time. This should embarrass  the Washington Post, but bad reporting alone isn’t actionable. If it were, most media outlets would have blinked out of existence decades ago, and all we’d have are social-media video clips.

The question in the headline, by the way, is a trick question. Freedom of speech and “modern-day McCarthyism” are, unfortunately, not mutually exclusive states. In fact, to combat the latter we need the former even more. The best cure for bad speech is more and better speech. That is why the courts have been stingy about defamation and libel, restricting it only to the most obvious of circumstances. Sandmann got victimized by the national media and deserves a hearty rhetorical defense, but defamation suits aren’t going to work to correct the record.

Of course, Sandmann’s attorneys plan to appeal this, and who knows? Perhaps the Supreme Court might be in the mood to rethink Milkovich and other libel-slander-defamation law. Justice Clarence Thomas certainly made his feelings known about Sullivan in February, not long after this legal action got filed. Until the Supreme Court decides to redefine defamation in relation to opinion and free speech, though, this isn’t going anywhere.