Although the title to this article is somewhat crude, with apologies made to anyone who is offended reading it, it is an old saying that rings true when a newspaper and by extension the news media get sued by those claiming malicious defamation.
This is a “deep dive” analysis into such a complaint and why they are so difficult prove.
The parents of the 16-year-old who was involved in an encounter with Native American advocate Nathan Phillips at the Lincoln Memorial on January 18, 2019 has filed a defamation lawsuit in Federal Court in the State of Kentucky against The Washington Post.
The Washington Post is the only named defendant in the case.
The 16-year-old’s parents filed the lawsuit for him seeking $250 million in damages from The Washington Post for its coverage of the incident.
Quoting the complaint:
“In order to fully compensate Nicholas [Sandmann] for his damages and to punish, deter and teach the Post a lesson it will never forget, this action seeks money damages in excess of Two Hundred and Fifty Million Dollars ($250,000,000.00), the amount Jeff Bezos, the world’s richest person, paid in cash for the [Washington]Post when his company, Nash Holdings, purchased the newspaper in 2013”. (Page 4, paragraph 19 of complaint.)
The complaint is also seeking “compensatory damages” of Fifty Million Dollars ($50,000,000.00).
Punitive damages are awarded against a defendant to punish, deter and teach a lesson in order to keep a defendant from engaging in conduct and prevent them from ever doing it again.
Compensatory damages are the damages that must be proven in court and awarded to make a person whole again.
Sixteen year-old Nicholas Sandmann was among the students from Covington Catholic High School in Kentucky who was wearing a red “Make America Great Again” hat during a trip to the Lincoln Memorial when they encountered Nathan Phillips, a Native American activist.
You can read the entire 38-page civil federal court lawsuit complaint filed in United States District Court, Eastern District of Kentucky, Northern Division at Covington here:
The federal lawsuit alleges a cause of action for defamation that the Washington Post published six false and defamatory articles concerning 16-year-old Nicholas Sandman, including two in its print newspaper and four online. (Page 18 of civil complaint.)
According to the federal civil complaint, The Washington 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. … Nicholas stood quietly and respectfully for several minutes after being targeted and bullied by Phillips and Nicholas’ body language remained non-aggressive and passive throughout the incident.”
The complaint asserts that the Washington Post “targeted and bullied” 16-year-old Nicholas Sandman in order to embarrass President Donald Trump.
Numerous national news accounts and videos of the encounter resulted in a debate over the behavior of all the participants, including the students, the Native American protesters and the “Hebrew Israelite” protesters.
The complaint alleges:
“In a span of three days in January of this year commencing on January 19, the Post engaged in a modern-day form of McCarthyism by competing with CNN and NBC, among others, to claim leadership of a mainstream and social media mob of bullies which attacked, vilified, and threatened Nicholas Sandmann, an innocent secondary school child”.
Nathan Phillips for his part is a self-described Native American activist who was on the Washington Mall that day for the “Indigenous Peoples March” and is an American Veteran.
Phillips told media outlets that he was walking toward the Lincoln Memorial when he encountered the Covington Catholic (CovCath) High School group.
Nathan Phillips was chanting and beating a small drum when he came face to face with 16-year-old Sandmann.
The complaint makes the accusation that the Washington Post “bullied” Sandmann in its news stories “because he was the white, Catholic student wearing a red “Make America Great Again” souvenir cap he had purchased the morning of the incident”.
The complaint proclaims that Nathan Phillips is not a Vietnam Veteran, that he is “a phony war hero [who] was too intimidated by the unruly Hebrew Israelites to approach them, the true troublemakers, and instead chose to focus on a group of innocent children.”
According to the lawsuit, the Washington Post “did not conduct a proper investigation before publishing its false and defamatory statements of and concerning Nicholas [Sandmann]”
The Washington Post is accused of ignoring videos that showed a fuller picture of the incident and of using “unreliable and biased sources,” thus acting with “knowledge of falsity or a reckless disregard for the truth.”
NOTEWORTHY ALLEGATIONS
Noteworthy accusations to highlight in the complaint include the following numbered allegations:
“7. In targeting and bullying Nicholas by falsely accusing him of instigating the January 18 incident, the Post conveyed that Nicholas engaged in acts of racism by “swarming” Phillips, “blocking” his exit away from the students and otherwise engaging in racist misconduct.
8. The Post ignored basic journalist standards because it wanted to advance its well-known and easily documented, biased agenda against President Donald J. Trump (“the President”) by impugning individuals perceived to be supporters of the President.
9. As a 16-year-old secondary school student, Nicholas’ political beliefs are anything but established and entrenched in his young mind.
10. Nicholas has zero history of political activism or aggressiveness and did not exhibit any such conduct even when confronted with unbridled racist attacks by activist bullies at the National Mall.
11. The Post’s campaign to target Nicholas in furtherance of its political agenda was carried out by using its vast financial resources to enter the bully pulpit by publishing a series of false and defamatory print and online articles which effectively provided a worldwide megaphone to Phillips and other anti-Trump individuals and entities to smear a young boy who was in its view an acceptable casualty in their war against the President.
12. Unlike the Post’s abuse of the profession of journalism, Plaintiffs do not bring this lawsuit to use the judicial system to further a political agenda. This lawsuit is brought against the Post to seek legal redress for its negligent, reckless, and malicious attacks on Nicholas which caused permanent damage to his life and reputation.
13. The Post bullied an innocent child with an absolute disregard for the pain and destruction its attacks would cause to his life.
14. The Post proved itself to be a loud and aggressive bully with a bully pulpit.
15. In targeting and bullying Nicholas by falsely accusing him of instigating the January 18th incident, the Post conveyed that Nicholas engaged in acts of racism by “swarming” Phillips “blocking” his exit away from the students, and otherwise engaging in racist misconduct.
16. But the Post did not care about protecting Nicholas. To the contrary, the Post raced with a reckless disregard of the facts and truth because in this day and time there is a premium for being the first and loudest media bully.
17. The Post wanted to lead the charge against this child because he was a pawn in its political war against its political adversary, a war so disconnected and beyond the comprehension of Nicholas that it might as well have been science fiction.
18. The Post must be dealt with the same way every bully is dealt with and that is hold the bully fully accountable for its wrongdoing in a manner which effectively deters the bully from again bullying other children. In a civil lawsuit, punishment and deterrence is found in awarding money damages to the victim and target of the bully.
19. In order to fully compensate Nicholas for his damages and to punish, deter, and teach the Post a lesson it will never forget, this action seeks money damages in excess of Two Hundred and Fifty Million Dollars ($250,000,000.00) the amount Jeff Bezos, the world’s richest person, paid in cash for the Post when his company, Nash Holdings, purchased the newspaper in 2013.”
Detailed allegations of online videos of the January 18 incident are made in the civil complaint.
THE JANUARY 18, 2019 INCIDENT
The complaint gives a version of the events of January 18, 2019 by making the following numbered allegations:
“20. On January 18, 2019, Nicholas attended the March for Life on a school trip chaperoned by sixteen adults, nine of whom were faculty members at Nicholas’ school, Covington Catholic High School (“CovCath”).
21. …
22. Nicholas was wearing a red cap Make America Great Again cap (“MAGA cap”) that he had purchased that day as a souvenir.
23. While at the National Mall, a small group of adult gentlemen who describe themselves as Hebrew Israelites a known hate group began verbally assaulting and taunting Nicholas and his CovCath classmates with including but not limited to, threats of physical violence and vitriol calling the students “incest babies” “dirty ass crackers,” and “future school shooters.”
24. One of Nicholas’ classmates requested and received permission from a school chaperone to engage in CovCath school sports cheers in an effort to ignore and drown out the hate speech being hurled at them by the Hebrew Israelites.
25. The school cheer is intended and undertaken to promote unity and school pride and should have been correctly seen as a positive act, not a racist act.
26. During the school cheer, Phillips and a small group of his companions all of whom had been participating in the Indigenous Peoples March at the National Mall that day instigated a confrontation with Nicholas and his CovCath classmates.
27. Rather than focusing their attention on the Hebrew Israelites, who had been relentlessly insulting both the teenagers for almost an hour and the Native Americans attending the Indigenous Peoples March before that, Phillips and his activist companions approached the CovCath students from a distance while beating drums, singing, dancing, and carrying cameras to capture the confrontation on video.
28. Apparently, Phillips, a phony war hero, was too intimidated by the unruly Hebrew Israelites to approach them, the true troublemakers, and instead chose to focus on a group of innocent children a much safer endeavor for activist tactics of intimidation.”
The complaint makes allegations regarding the very close face-to-face interaction between the 16-year-old and Nathan Phillips beating a drum by alleging:
“44. While he stood there with Phillips beating a drum near his face and singing loudly, Nicholas remained silent and did not utter a single word to Phillips.”
ALLEGATIONS AND INVESTIGATIONS OF NON-PARTY DEFENDANTS
The complaint argues that the Post did not conduct a proper investigation before publishing its false and defamatory statements concerning the 16-year-old. (See paragraph 71 of complaint.)
The lawsuit contains allegations and quotes from specific stories and videos published and statements made by school officials and the sixteen your old himself in a national TV interview.
According to the lawsuit an investigation was conducted that revealed the truth about what happened on January 18 and that inconsistent and false claims were made by Native American Activist Nathan Phillips.
Nathan Phillips is not a named party defendant.
The complaint also alleges false and defamatory statements concerning the 16-year-old published by the Catholic Diocese of Covington on January 19 before a proper investigation had been conducted by the Diocese.
(Paragraph 72)
The Catholic Diocese is not a named defendant.
The complaint makes specific allegations that the 16-year-old is not a “public figure” as defined by the law but is a private figure for the purposes of this defamation action, claiming he has lived his entire life outside of the public eye. (See paragraphs 163 to 168 of complaint.)
ABSENCE OF MALICE IS A DEFENSE TO “MALICIOUS DEFAMATION” ALLEGED AGAINST THE NEWS MEDIA
The distinction between a “public figure” and a “private figure” under the law is a critical distinction when it comes to the First Amendment Right of Freedom of the Press and the lawsuit filed.
The civil complaint specifically alleges that “The Post published negligently with actual malice”.
The First Amendment rights of free speech and of the press have limitations when it comes to libel, slander, defamation and malicious statements that harm others.
An act of malicious defamation involves the intentional commission of a wrongful act and statements made against another, absent real justification, with the intent to cause harm to others.
An act of malicious defamation is considered an intentional violation of the law that injures another individual in some manner and where actual damages can be proven.
“Absence of malice” refers to the legal defense against charges of libel (written) defamation, and is used in journalism to illustrate the conflict between disclosing damaging personal or newsworthy information and the public’s right to know.
If something is published or telecast with an “absence of malice” against a person reported upon, there is no liability owed to the person or subject harmed with the publication considered “freedom of speech” or of the press.
In the context of civil defamation actions for libel and slander for damages, a person who is found to be a “public figure”, such as an elected official, cannot succeed and recover damages in a lawsuit for false statements unless there is proof that the writer or publisher acted with actual malice by knowing the falsity or by reckless disregard for the truth and there must be actual and provable damages.
The plaintiff’s in their case against the Washington Post have requested a jury trial.
In any civil lawsuit seeking damages, the party bringing the lawsuit must prove their case by a “preponderance of the evidence” before the “trier of fact”, the jury.
“Preponderance of the evidence” is defined as the greater weight of the evidence required in a civil, non-criminal, lawsuit for a jury to decide in favor of one side or the other.
This preponderance is based on the more convincing evidence and its probable truth or accuracy, and not on the amount of evidence.
https://dictionary.law.com/Default.aspx?selected=1586
COMMENTARY AND ANALYSIS
When you review the federal lawsuit against the Washington Post, what is glaring is that more than few individuals have been omitted or ignored who should have been named as parties to the lawsuit.
President Donald Trump is not name as an injured party and Native American Nathan Phillips, the Hebrew Israelites who allegedly instigated the incident and the Catholic Diocese of Covington are not named as defendants.
The complaint boldly proclaims the Washington Post “targeted and bullied” 16-year-old Nicholas Sandman in order to embarrass President Donald Trump, which is very easily alleged but will be difficult to prove in court.
“Bullying” can be loosely defined as physically or emotionally hurting someone, or shaming and embarrassing someone over an extended period of time forcing that person to do something they do not want to do to themselves or others.
“Bullying” someone usually takes the form of personal threats against a single individual being bullied and not against a third party that the person being bullied does not even know.
Besides, Trump has show repeatedly that he is incapable of being embarrassed and that he is beyond being shamed, just ask Stormy Daniels.
The Plaintiffs boldly proclaim they “do not bring this lawsuit to use the judicial system to further a political agenda” yet the lawsuit itself is seeking to stop the Washington Post and punish it for exercising First Amendment Rights of Freedom of the Press and reporting what was witnessed.
It is interesting that the complaint seeks to punish the Washington Post for “targeting and bullying” when many would say that is the exact and same type on conduct that Trump has engaged in all of his life and as President of the United States, especially against the press and minorities.
Alleging that the 16-year-old “has zero history of political activism or aggressiveness” is somewhat absurd because he was on the Washington Mall wearing a red MAGA cap with his school group attending the “March for Life Rally”, and anti-abortion rally.
It is likely the Post will defend by asserting much of the following:
1. The 16-year-old became a public figure participating in a “right to life” protest because of his religious beliefs, wearing a red MAGA hat at a public function, and there was no reasonable expectation of privacy from photos and videos.
2. The Plaintiff was under the supervision of an adult who should have intervened to prevent the incident, but instead encouraged it by having the students make school chants to drown out other protesters.
3. The 16-year-old went on national TV to do an interview all by himself to defend his action showing a great degree of maturity beyond his age.
4. All the actions on the mall the day of the incident and his appearance on national TV combined to make the 16-year-old a “public figure” in which case the plaintiff will have to prove actual malice by the Post which is very difficult at best.
5. The sixteen-year-old has suffered no damages or negligible damages and nothing near the $50 million in compensatory damages and he not entitled to punitive damages.
The complaint asserts that Nathan Phillips instigated the incident with his drum beating and that he is not a Vietnam Veteran, but that he is “a phony war hero” an allegation that will now have to be proven in court.
There are no videos quoted that have Phillips proclaiming to be a war hero and besides being a phony war hero does not mean you are prohibited from exercising your constitutional right of free speech.
The widely published photo and video of the expression on the 16-year old’s face as to what it conveyed and what he was actually thinking will be subjected to many interpretations by the public and attorneys, including it was a reasonable reaction to the situation or it was a “smirk” done to antagonize Nathan Phillips.
No doubt Mr. Phillips will have to be called as a witness in the case to get his version of what happened and what he felt.
The allegation that the Post has a “well-known and easily documented, biased agenda against President Donald J. Trump” is nothing but that, an allegation.
The civil complaint alleges and argues the Post news accounts were its own interpretation of the events, which is exactly what news agencies do in their reports.
There is no requirement that all news must be uniformly, accurately and reported upon without any biases by all news agencies, otherwise FOX News would be out of business.
What will happen now is the attorneys for the Washington Post, no doubt some of the finest in the country when it comes to the First Amendment Right of freedom of the press, will comb over all the allegations and do extensive investigation themselves and file an Answer to the Complaint.
It is highly likely that a Motion to Dismiss will be filed by the Post alleging that the civil complaint fails to allege a cause of action where relief can be granted against the Washington Post.
If a judge does not dismiss the case and allows the case to proceed, the Plaintiff’s will have to prove all the allegations made in the complaint, such as those noted above, in a court of law by “preponderance of the evidence” and show the damages sustained.
All the events occurred in Washington, DC, where the Post does business and where its reporters are, its offices are and for that reason a motion can be anticipated for a change of venue removing the case from the Eastern District of Kentucky to the Washington DC Federal Court
It is also possible that a motion will be filed to add necessary and proper parties to the lawsuit, such as Trump, Nathan Phillips, the Hebrew Israelites and the Catholic Diocese of Covington so that all the facts can be explored and damages accessed.
The Washington Post could file a counterclaim against the Plaintiff’s alleging “bad faith” on their part and for filing a frivolous complaint to interfere with the Washington Post’s First Amendment right of Freedom of the Press in order to have a chilling affect on their constitutional rights.
Another potential is that other news outlets who reported on the case may decide to intervene in the case.
All too often, Plaintiff’s file lawsuits with inflated expectations not fully comprehending that the results could result in a totally different outcome to their own determent.
As the saying goes, never get into a “pissing match” with those who buy ink by the barrel.