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Sunday, August 02, 2020

Sandmann: Bringing the Dream

Nicholas Sandmann settled his defamation action against the Washington Post this week, and he is not done yet.

Sandmann's defamation suits arose after several media outlets caricatured him as a smirking racist based on a video clip of him wearing a Make America Great Again hat and watching a Native American man beating a drum amidst a chaotic crowd at the Lincoln Memorial. The video clip went viral after it was posted by someone at the scene, and the media picked it up for repetition and commentary. Their spin on Sandman's supposed smirk was supported by statements from Nathan Phillips, the Native American man at the scene. The viral video spurred viral outrage. The problem was that the video as a whole, which was readily available, tended to dispel the narrative gleaned from the clip of Sandmann and Phillips. Viewing the video as a whole, Sandmann did not appear to be in a confrontational posture vis-a-vis the Native American man or others at the scene but instead seemed to be in the posture of an awkward teenager watching a curious scene with his peers as a group of Black Hebrew Israelites hurled insults and invective at them. 

Sandmann was fortunate to procure the counsel of famed attorney L. Lin Wood, who filed defamation suits against ABC News,  NBC News, CBS News, the New York Times, Gannett, Twitter, and Rolling Stone; having already settled with CNN and the Washington Post, Sandmann is still seeking damages in the aggregate of over $750 million, and he has threatened additional lawsuits. 

As a lawyer, I hesitate to put too much significance on any case before it has made its way into a published appellate opinion. Until then, it may very well be an anomaly. This case has drawn extensive publicity and partisan commentary because it has come to represent a strike against the perceived arrogance and bias of the mainstream media and the slipshod investigative habits old and new media actors employ in the digital era.  On its face, the video clip of Sandmann, together with statements made by the Native American man at the scene, seemed to confirm what many liberal partisans seem to believe: Anyone who wears a MAGA hat must be a heartless white supremacist. It is clear that many media outlets took the clip on its face and republished it and drew conclusions from it without watching the whole video, which became readily available at a rarely early juncture in the whole controversy. Conservative partisans have attributed the media's rush to judgment to bias at a minimum and possibly malice, but it is just as likely to be a result of laziness and a desire not to fall behind digital competitors. Regardless, Sandmann's settlements have led some to call for more defamation lawsuits to hold media accountable (and may be part of a larger trend of plaintiffs using defamation suits strategically as vehicles for political messages, but that's a story for another day, Devin Nunes).  

The partisan lenses through which the Sandmann cases are being refracted obscure the interesting legal questions the cases raise. One important question is about what's required to prove actual malice in this case, but another is this: under what conditions does a person who "goes viral" by being in the wrong place at the wrong time become a public figure for purposes of defamation law, and does it matter if that person is a child? The distinction between public figures and private figures is crucial in defamation law, because private figures can recover for defamation by proving the defendant published a defamatory falsehood about them negligently, but public figures must prove actual malice, that is, that the defendant published the defamatory falsehood knowingly or with reckless disregard of the truth. (Actual malice is a term of art not to be confused with common law malice). Sandmann's cases become much harder to win if he is a public figure and must prove actual malice, although he may choose to prove actual malice even if he is deemed a private figure, because doing so gives him access to larger damages awards. 

Some commentators have suggested that Sandmann should be treated as a limited-purpose public figure because he became embroiled in an event that was clearly of public concern at the site of the Lincoln Memorial. The Supreme Court's cases defining the category of limited-purpose public figures predate social media, but they do involve people who were thrust into larger controversies by the press or partisans; in general, they suggest that becoming a limited-purpose public figure requires a plaintiff to do something more than being in the wrong place at the wrong time and thus becoming fodder for public controversy. For example, in Time Inc. v. Firestone, five Supreme Court justices concluded that a woman married into a prominent family did not become a public figure simply by seeking a divorce through the judicial process. In Wolston v. Reader's Digest Ass'n, the Court held that a man who had previously been convicted of contempt for refusing to respond to a grand jury investigation on mental health grounds was not a public figure. And in Hutchinson v. Proxmire, a research scientist applying for a federal grant was not public figure, either.  Extrapolating from the Supreme Court cases, plaintiff should not be treated as a limited-purpose public figure because others embroil him in a public controversy of their creation: his entrance into the controversy must involve some degree of volition. The absence of meaningful volition is bolstered by the fact he was a minor on a school field trip standing on the steps of a public monument when he went viral.  Even examining Sandmann's actions through the lens of the multiple factors indicating limited-purpose public figure status elucidated by lower courts, Sandmann arguably did not do "enough" to be treated as a limited-purpose public figure. The factors lower courts look to often include whether (1) the plaintiff has access to channels of effective communication; (2) the plaintiff voluntarily assumed a role of special prominence in the public controversy; (3) the plaintiff sought to influence the resolution or outcome of the controversy; (4) the controversy existed prior to the publication of the defamatory statement; and (5) the plaintiff retained public figure status at the time of the alleged defamation. Sandmann apparently did nothing to ask for the infamy that attached to him based on the publication and misinterpretation of the viral video clip (and likely spurred at least in part by his hat). He did, however, gain access to the media after the fact to rebut any allegedly defamatory falsehoods. For some courts, this might be enough to tip Sandmann into the limited-purpose public figure category (see, for example, Gilmore v. Jones, 370 F. Supp. 3d 630 (E.D. Va. 2019), though that conclusion would not be faithful to the parameters of the category defined by the Supreme Court. 

A better, though still problematic, argument is that Sandmann and other "victims" of viral videos like him are involuntary public figures. This category comes from dicta in the Supreme Court's 1974 case, Gertz v.Robert Welch, in which the Supreme Court speculated: "Hypothetically it may be possible for someone to become a public figure through no purposeful action of his own."  The Supreme Court has left the definition of the category to the lower courts, which have not reached consensus on how to define involuntary public figures and, indeed, whether the category even continues to exist.  (Cf., e.g., Clyburn v. News World Communications, Inc., 1990; Marcone v. Penthouse Int’l Magazine, 1985; Schultz v. Readers Digest Ass’n, 1979)  One approach is represented by Dameron v. Washington Magazine, Inc, 779 F.2d 736 (D.C. Cir. 1985).  A plane crashed when Dameron was the sole air-traffic controller on duty, although subsequent investigations absolved him of any blame for the crash.  Eight years later, however, a magazine article attributed the crash to controller error.  The District of Columbia Circuit Court of Appeals held that Dameron was an involuntary public figure for purposes of discussion of the crash, and therefore his libel action failed for lack of proof of actual malice on the part of the magazine. The D.C. Circuit concluded that even though Dameron had taken no voluntary actions,  "[t]here was indisputably a public controversy" in which "Dameron played a central role."  Thus, the court concluded that a person may become an public figure simply by being in the wrong place at the wrong time.

The US Court of Appeals for the Fourth Circuit took issue with this approach in Wells v. Liddy on the grounds that it "rest[s] involuntary public figure status upon ‘sheer bad luck.’"  According to the Fourth Circuit, the relevant factors in determining involuntary public figure status are (1) whether the allegedly defamatory statement arose in the context of a discussion of a "significant public controversy" in which the plaintiff was a "central figure," and (2) whether the plaintiff "assumed the risk of publicity."  A plaintiff assumes the risk of publicity by "pursu[ing] a course of conduct from which it was reasonably foreseeable, at the time of the conduct, that public interest would arise."  The court also demanded that, as in the case of limited-purpose public figures, the controversy must pre-exist the defamation, and the plaintiff must "retain[ ] public figure status at the time of the alleged defamation."  The Liddy court was thus much more careful than the Dameron court not to conflate public interest in an individual with that individual’s involvement in a public controversy.  

Sandmann's attorney Lin Wood is familiar with these categories. Lin Wood famously represented Richard Jewell, the security guard at the 1996 Olympics who was falsely reported in the media to have planted the bomb that killed two and injured 110.  Jewell, far from being the culprit, was actually a hero: he spotted the bomb and prevented more people from being injured.  Nonetheless, the mere fact that he was in the wrong place at the wrong time and thus his actions became newsworthy led a Georgia court to label him an involuntary public figure when he sued the media for publishing defamatory falsehoods about him. 

Although Sandmann still has many defamation battles left to fight, they may never result in a precedent-setting legal opinion guiding the development of defamation doctrine in the digital era. In the meantime, though, these cases give those of us who love defamation law plenty to talk about. 

Posted by Lyrissa Lidsky on August 2, 2020 at 07:54 PM in Current Affairs, First Amendment, Lyrissa Lidsky, Torts | Permalink | Comments (9)

RIP, Wilfred Brimley

Actor Wilfred Brimley died Saturday. Brimley had too many roles to mention--most curmudgeonly, which apparently was Brimley. But I, and many lawyers, love his scene as a DOJ attorney in Absence of Malice, who swoops in at the end to smack everyone down. (This is one of two great lawyer scenes in this movie, the other comes early when the newspaper's attorney explains the law of defamation to the reporter). The full Brimley scene is not on YouTube, but here is the beginning:

 

Posted by Howard Wasserman on August 2, 2020 at 10:28 AM in Howard Wasserman | Permalink | Comments (3)

Saturday, August 01, 2020

Rethinking the Failure of the Arab Spring

My next law review article is going to be on Franklin D. Roosevelt's Constitution Day Address of 1937. More posts to come on that, as I'm starting to make some new discoveries about that speech.

One theme of FDR's Address was how political events overseas can influence our democracy. There are many examples, but one that deserves more attention is the failure of the Arab Spring. That failure was a tragedy for many countries, but its global significance is probably underestimated.

Many observe that faith in democracy has declined in recent years and that authoritarian regimes have grown bolder. Why is that? There are many possible explanations, but one that seems compelling is that successful counterrevolutions give hope to dictatorships and hurt the morale of democracies. (What occurred in the 1980s and 1990s (especially in Eastern Europe) did the opposite.) The Arab Spring was a successful counterrevolution. Instead of seeing new democracies doing well, we saw them mostly flail around. Instead of seeing dictatorships on their heels, we've seen them look stronger and more successful. This probably does matter for how some Americans look at their own government.

        

 

Posted by Gerard Magliocca on August 1, 2020 at 08:24 PM | Permalink | Comments (3)

Judicial departmentalism and particularity on Twitter (Updated)

In 2019, the Second Circuit held that Donald Trump could not ban people from following him on Twitter for viewpoint-discriminatory reasons, affirming a declaratory judgment. Trump and Daniel Scavino, the aide who runs his Twitter account, unblocked the plaintiffs and many others. But they did not unblock two groups--those who had been blocked before Trump became President (where there was no First Amendment problem with blocking them because he was not a government official at the time of blocking) and those who cannot point to a specific tweet that caused them to be blocked (where there is no evidence of viewpoint discrimination).

The Knight Foundation on Friday filed a new lawsuit on behalf of those two groups, asking for a declaratory judgment and injunction ordering the unblocking of these new plaintiffs.

Once again, inefficient but appropriate. Trump unblocked the plaintiffs, as we was obligated to do by the judgment. He negotiated with the Knight Foundation to unblock others, not out of an immediately enforceable legal obligation but a recognition of what would happen if he did not unblock--a motion to extend the existing judgment to additional individuals, which would succeed and which would impose that legal obligation. But he identified two groups differently situated than the plaintiffs who, in Trump's view, have not suffered similar violations of their First Amendment rights. This requires new litigation, a new analysis of the First Amendment, and a new declaration of First Amendment rights, duties, and relations.

Update: A further thought on the process: We know the plaintiffs recognized the particularized scope of the original judgment by the fact that they filed a new lawsuit on behalf of these plaintiffs. Had the original judgment protected these non-parties to that action, they could have moved to enforce the judgment, to hold Trump or Scavino in contempt, or to convert the declaratory judgment into an injunction.

For better or worse, this how the process should work. And Trump should not be accused of disobeying a court order or otherwise ignoring the court.

Posted by Howard Wasserman on August 1, 2020 at 06:41 PM in Civil Procedure, First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (8)

The right to stand is not the obligation to stand

I suppose this was inevitable, given that most debates about free speech are not about free speech but about one side's policy preferences. But not standing for the Anthem has become news, and a source of criticism, for players, coaches, and others in the NBA bubble. Spurs Head Coach Gregg Popovich (whose progressive credentials should not be in dispute) and assistant Becky Hammon did not stand; they defended by one of the Spurs star players. Jonathan Isaac of the Magic stood and did not wear a BLM t-shirt; he defended by a teammate.

That we are talking about people not standing shows that we have come a long way since 2016--from "people should not kneel" to "people should not not kneel." But that is as bad. The idea in supporting Colin Kaepernick is that players should be able to choose methods of expressing their ideas. That should cover what they choose to use and what they choose not to use.

Posted by Howard Wasserman on August 1, 2020 at 04:44 PM | Permalink | Comments (2)