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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


On the personal jurisdiction question:

Maybe I am not remembering World-Wide Volkswagen well, but I thought when the defendant is sufficiently sophisticated, as CNN undoubtedly would be, and the plaintiff is, well, plain, the plaintiff suing the defendant on his home court rather than where the harm occurred is almost always sufficient for minimum contacts (absent some forum choice agreement to the contrary). If I stop at a Sunoco station in South Carolina while driving from my home in Virginia to Florida, and a tanker truck owned and operated by Sunoco there to refill the station blows up and I suffer third degree burns, I basically have my choice of suing in Virginia, South Carolina, or Texas (Sunoco's home state).

Posted by: RComing | Aug 26, 2020 12:24:57 AM

I don’t understand what happened in the Sandmann case.

First, the judge threw the complaint out, because Phillips’s statement that he felt Sandmann was blocking him was opinion. You can read that well-written opinion here. https://reason.com/2019/07/27/judge-rejects-nicholas-sandmanns-claim-against-washington-post/

Then, Sandmann asked to amend his complaint, and the judge issued an opinion allowing him to amend that complaint. In that opinion, the judge essentially said discovery would be required to see if Phillips’s statement that he felt Sandmann was blocking him was non-defamatory opinion or a defamatory statement. NOBODY analyzed this opinion as far as I can tell, and I frankly don’t understand it. I think this opinion should have received greater criticism. https://www.dropbox.com/s/l88kzvfukstdq5a/sandman%20amended%20complaint%20order.pdf?dl=0

Any way. My assessment of the Sandmann case is that it’s the perfect example of white privilege. If you’re a young white kid, you get to sue a newspaper for reporting that someone thought you were blocking them. That’s the status white people have in certain parts of the country, including Kentucky where this case occurred.

Posted by: Bloggeramg | Aug 25, 2020 9:30:02 PM

I may be mistaken, he is demanding $750M + additional lawsuits? A little much might I say.

Posted by: Jon | Aug 4, 2020 11:24:23 PM

I don't know the details. Perhaps the plaintiff wanted it, as well, to head off exactly this speculation about why he settled for X when he asked for $ 250m. Perhaps CNN demanded it here, then the plaintiff's lawyer called them out when Stelter seemed to undermine it--kind of "Hey, you were the ones who wanted the confidentiality, so you have to abide by it."

Posted by: Howard Wasserman | Aug 3, 2020 5:37:50 PM

Why should media organizations, which are always telling us how important the public's right to know is, be allowed to shield information on the terms that libel and defamation cases are settled? I've never been involved in such a case but in any other cases that involve an individual suing a large corporation (discrimination, tort), it's always been the defendant that demands confidentiality.

Posted by: PaulB | Aug 3, 2020 4:27:04 PM

Terms of the settlements have not been disclosed. There was a kerfuffle a week ago--a lawyer tweeted speculation that the settlement was for nuisance value and little more (which is probably right). Brian Stelter of CNN retweeted that. Wood argues that the retweet breached the agreement of confidentiality and is seeking to enforce that alleged violation.

In addition to the First Amendment issues, I thought there was an interesting personal jurisdiction question--whether CNN, et al. could be sued in Kentucky for reporting on something that happened in D.C.

Posted by: Howard Wasserman | Aug 3, 2020 12:27:07 PM

Just correction to my comment:

Instead of:

"So, if conservatives, one to pursue such path"

Should be:

So, if conservatives, want to pursue such path

Posted by: El roam | Aug 3, 2020 7:29:51 AM

Great post. What strikes me always, is the lack of enhanced liability on professional publishers. One professional publisher ( like big newspaper and alike) has more investigative tools and ethical duty, to check and verify the information subject of defamation, before disseminating it all over.

In that case by the way, we have the video clip. More easy to investigate it, to watch it and to realize prior to publication, whether, something in it, is really defamatory or to what extent. It is not like, investigating, whether an event, or announcement really have taken place. It is rather the video clip per se it seems. The issue of liability in repetition is hell by itself.

So, if conservatives, one to pursue such path, and suing all around, they may contribute new legal component in the jurisprudence:

Private entity or person, don't have the same ethical liability and duty like professionals (like Washington Post in that case). This looks very warranted in the US.


Posted by: El roam | Aug 3, 2020 7:26:57 AM

Any indication of the terms of settlement?

Posted by: J. Bogart | Aug 3, 2020 7:05:04 AM

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