JANUARY 2019 - Sandmann vs. American Media
Photo Caption and Credit: A screenshot taken on Dec. 4th, 2020 of Fox News reporting on the Nicholas Sandmann lawsuit. (Courtesy of Genesis Jefferson/Fox News)
By Danica Crehan-Mueller
According to an explanatory video from the New York Times, on Jan 18, 2019, five men identified as Hebrew Israelites were preaching at the Lincoln Memorial after the conclusion of the Indigenous People’s March that took place earlier that day (Marcolini & Reneau, 2019). The men shouted “derogatory” and “inflammatory” comments towards the Native Americans who stuck around after the march (Marcolini & Reneau, 2019). Then, a group of students from Covington Catholic High School, many dressed in Make America Great Again (MAGA) hats, began to gather after attending the March For Life, an anti-abortion rally that also took place earlier that day (Marcolini & Reneau, 2019). The group of Hebrew Israelites then directed their inflammatory statements towards the students. In response, students started chanting unidentifiable “school spirit” chants (Marcolini & Reneau, 2019). At this point, Nathan Phillips, a participant in the Indigenous Peoples March, approached the students, playing a ceremonial drum. Some students made the “Tomahawk Chop,” an offensive gesture towards Native Americans (Marcolini & Reneau, 2019). As Phillips moved into the crowd, one of the students, Nicholas Sandmann, approached, smiling. Phillips noted later in an interview that he felt that Sandmann was blocking his way as he attempted to move through the crowd (Marcolini & Reneau, 2019). They stood in front of one another for several minutes before Sandmann, and his peers moved away. Afterward, Phillips is seen on video addressing the crowd, “Relatives,” He says, “Lets, let’s make America great, let’s do that.” (Marcolini & Reneau, 2019).
An edited version of the video, showing the interaction between Sandmann and Phillips, went viral across social media platforms. The shortened video drew criticism and sparked outrage from people online. Many viewed Sandmann’s actions as offensive and inflammatory, though in a statement, he denies acting with malicious intent (CNN, 2019). Publications such as the Washington Post and CNN covered this story as it developed, adding context as the full picture came to light, heavily focusing on people’s initial reactions to the video clip. Though media coverage primarily focused on public opinion, Sandmann’s parents brought a $250 million libel suit against the Post, and a $275 million libel suit against CNN. The libel suits alleged that the Washington Post, “targeted and bullied” Sandmann through their coverage (Farhi, 2019) and that CNN, “put its anti-Trump agenda first.” (CNN Staff, 2019).
In July 2019, federal Judge William O. Bertelsman dismissed Sandmann’s case against the Washington Post. However, in October 2019, the judge reversed course, saying three of the statements in question justified moving into the lawsuit’s discovery phase. The statements that moved the case into the discovery phase all included claims that Sandmann “blocked” Phillips and “would not allow him to retreat.” (Chan, 2019).
Sandmann’s suit against CNN was settled in January 2020 for an undisclosed amount. Shortly after the settlement, according to Fox19, Sandmann’s attorneys released a statement of intent to file complaints against five other news outlets, including ABC, CBS, The New York Times, and Rolling Stone (Planalp et al., 2020).
Sandmann’s case stands the chance of reopening the legal conversation surrounding what constitutes libel in the 21st century. The Supreme Court’s 1964 decision in New York Times v. Sullivan established that a private citizen must prove that a published statement was false. However, in a 1967 case, Curtis Publishing Co. v. Butts, the court expanded the definition of a
“public” figure to include private individuals who “thrust themselves to the forefront of particular public controversies in order to influence the resolution of the issues involved.”
Hans A. von Spakovsky writes in his commentary for The Heritage Foundation, “The law does not allow you to recover damages for an opinion that you consider defamatory. Thus, Sandmann would have a hard time recovering from the Washington Post or anyone else for expressing an opinion that he is racially insensitive or a racist. While that opinion may be unfair or unjust, it is not actionable.” (von Spakovsky, 2019).
Contrary to Spakovsky’s opinion that Sandmann’s defamation lawsuit is not actionable, CNN settling the case out of court may indicate otherwise. Taking a lawsuit such as Sandmann’s to trial risks reigniting the battle over how we define libel. As other news organizations wait for their trial dates against Sandmann to be set, the public awaits seeing if any of the publications in question consider taking the case to court to be worth the risk.