Legal Analysis: Nicholas Sandmann v. ‘The Media’

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The image and the reports–and seeking the truth behind them

By Carolyn Schurr Levin

We’ve all seen the video or picture, or both. What we may not know, unfortunately, is the truth behind them.

In January 2019, 16 year old Nicholas Sandmann participated in a school trip to Washington D.C. along with other students from Covington Catholic High School in Park Hills, Kentucky. Sandmann, who wore a Make America Great Again hat, participated with his classmates in a March For Life rally and then went to the Lincoln Memorial to wait for the buses that would bring them home to Kentucky. While at the Lincoln Memorial, Sandmann encountered 64-year-old Native American activist Nathan Phillips, who was standing in front of him, playing a drum and chanting at an Indigenous Peoples March.

Sandmann’s interaction with Phillips was captured in photos and videos, which went viral. In addition to being reported by mainstream media outlets CNN, the Washington Post, NBC, and others, a video of the encounter was uploaded and widely shared on social media platforms, including Instagram, Twitter and YouTube, receiving millions of views. The video led to widespread accusations of bigotry by Sandmann. Almost universally, the media coverage of the encounter portrayed Sandmann as the smirking aggressor. That is not, apparently, what really happened.

Days later, new video provided additional context and showed that the initial media reports had omitted key details of the encounter. In the new video, a group of black men who identify as members of the Hebrew Israelites was seen taunting the Covington Catholic High School students with disparaging language and shouting racist slurs at participants of the Indigenous Peoples Rally and others.

Here’s Sandmann’s version of the events, told to CNN:

“When we arrived, we noticed four African American protestors who were also on the steps of the Lincoln Memorial. I am not sure what they were protesting, and I did not interact with them. I did hear them direct derogatory insults at our school group. . .  The protestors said hateful things. . .  Because we were being loudly attacked and taunted in public, a student in our group asked one of our teacher chaperones for permission to begin our school spirit chants to counter the hateful things that were being shouted at our group. The chants are commonly used at sporting events. They are all positive in nature and sound like what you would hear at any high school. Our chaperone gave us permission to use our school chants. . . After a few minutes of chanting, the Native American protestors, who I hadn’t previously noticed, approached our group. . . The protestor everyone has seen in the video began playing his drum as he waded into the crowd . . . I did not see anyone try to block his path. He locked eyes with me and approached me, coming within inches of my face. He played his drum the entire time he was in my face. . .  I never interacted with this protestor. I did not speak to him. I did not make any hand gestures or other aggressive moves. To be honest, I was startled and confused as to why he had approached me. We had already been yelled at by another group of protestors, and when the second group approached I was worried that a situation was getting out of control where adults were attempting to provoke teenagers. . .  I would caution everyone passing judgement based on a few seconds of video to watch the longer video clips that are on the internet, as they show a much different story than is being portrayed by people with agendas.”

But, Sandmann’s statement about what happened on January 18, 2019 did not end this matter. He subsequently filed eight lawsuits against media outlets, including the Washington Post, CNN, the New York Times, NBC, CBS, ABC, Gannett, and Rolling Stone. All of the suits accused the media outlets of publishing false and defamatory reports that cast Sandmann in a negative light, bringing public hatred and threats to him and and his family. In essence, his argument was that in a rush to get the story out, media outlets ignored vital context in favor of “pre-conceived false narratives.”

Here’s the language from one of the suits: Sandmann’s February 19, 2019 lawsuit against the Washington Post, which sought $250 million in damages, accused the Post of engaging 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.” It stated that “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.” It then alleged that “The Post bullied an innocent child with an absolute disregard for the pain and destruction its attacks would cause to his life.” And “The Post did not conduct a proper investigation before publishing its false and defamatory statements of and concerning Nicholas.” President Trump cheered Sandmann, tweeting: “Go get them Nick. Fake News!”

Several of Sandmann’s lawsuits are still working their way through the federal district court in the Eastern District of Kentucky, with motions to dismiss by the media outlets pending. At least two, those brought against CNN and the Washington Post, have ended with out-of-court settlements on terms that have not been made public. The Washington Post explained its decision to settle its case: “News organizations sometimes settle defamation claims rather than face a trial. Even with a favorable judgment at trial, the costs of defending against such a suit can be substantial.”  Sandmann commented after his settlement with the Post, tweeting, “The fight isn’t over. 2 down. 6 to go.”

Thorough and balanced reporting and meticulous editing are not only journalistic tenets, but are key to the avoidance of lawsuits. Although he was thrust into the national spotlight, Sandmann would likely be considered a private citizen for purposes of his libel suits. Thus, his standard for proving defamation would be lower than it would have been had he been a public official or public figure. All states require proving negligence or carelessness for a suit brought by a private individual (although the level of fault for private individuals does vary by state). Sandmann would also need to show that he was identified by the allegedly false statements by the media and that they were statements of fact, not opinion, which a judge in at least one of his cases has ruled he cannot show. Statements of opinion are not actionable in libel actions. Motions to dismiss the cases against the New York Times, Rolling Stone and ABC News are pending on several of these bases.

Whether or not the remaining cases are dismissed by motions, go to trial, or eventually settle out of court, there are so many lessons for student journalists from the Sandmann incident. CMA member and professor Vince Filak, astutely reminded students of three important takeaways from the Sandmann reporting and lawsuits (https://dynamicsofwriting.com/2020/09/17/throwback-thursday-a-look-back-at-the-covington-catholic-kids-vs-native-american-protester-situation/)

  1. Fast is good; accurate is better;
  2. The duty to report is not the same as the duty to publish; and
  3. Objectivity is still an admirable goal.

“The goal here is not to pick sides and fight for only the people on it. You need to figure out what happened and report the content,” Professor Filak said. We should all heed his sage advice: “Stick to the basic tenets of journalism and you’ll be fine.”


Carolyn Levin

Carolyn Schurr Levin, a media and First Amendment attorney, is of counsel at Miller Korzenik Sommers Rayman LLP in New York. She writes a periodic legal analysis column for CMR. Levin was the Vice President and General Counsel of Newsday, Vice President and General Counsel of Ziff Davis Media, and Media Law Adviser for the School of Journalism at Stony Brook University. She teaches Media Ethics at City University of New York’s Baruch College, and has also taught media ethics and law at Stony Brook University, Long Island University, and Pace University. From 2010-2019, she was the faculty adviser for the Pioneer, the student newspaper at Long Island University, during which time the Pioneer won 28 awards.

Zachary Press, an associate at Miller Korzenik Sommers Rayman LLP, assisted with the research for this column.

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