Can Sandmann Win?

A friend sent me a link to this Atlantic article on the Covington Catholic case and asked me to comment on the legal merits of Nick Sandmann’s lawsuit against the Washington Post and others.

Actually, I think the Atlantic article is a good summary of the existing state of the law. The standard that applies to a defamation case under Supreme Court jurisprudence depends on whether the plaintiff is a “public figure” or not. Sandmann obviously was not a public figure at the time the Lincoln Memorial incident occurred; he was an unknown 16-year-old boy. But then we have “limited-purpose public figures” and even “involuntary public figures.” Can a Twitter mob make a boy an involuntary public figure, and thereby insulate itself against any liability to him?

This question is important because the conventional wisdom is that a public figure can’t win a libel case. He has to surmount the “actual malice” standard, which has little to do with malice, which was certainly present here, and in practice verges on the impossible. This is what I responded to my friend:

In any sane world, Sandmann has a good case against…somebody, for something. But it doesn’t fit conventional defamation law very well, and I don’t think there are any clear principles about how to deal with a Twitter mob. Hundreds or thousands of defendants [as suggested by Sandmann’s lawyer]? That doesn’t really work. Did the smearing of Sandmann relate to matters of fact, or opinion? What, exactly, did they say that was false? That he was “smirking”? That he acted “disrespectfully” toward the a****** who was pounding a drum in his face? That he is a symbol of all that is wrong with America? We really are outside the bounds of traditional defamation law.

The conventional wisdom is that no plaintiff can win a defamation case in any matter that is of public interest. If they get this case before a jury in Kentucky with a reasonable roster of defendants and a plausible theory, they probably will get a jury verdict. That verdict probably will be overturned a few years later, unless the Supreme Court decides to significantly rethink libel law.

In recent years, the once-sacrosanct New York Times line of cases has come increasingly under attack. Many legal scholars–not to mention the general public–think the Court has gone much too far in vitiating the centuries-old law of defamation. I, personally, agree. More important, so does President Trump. Whether new boundaries will be drawn; if so, where they will be; and whether any possible new regime will benefit Nick Sandmann, remain to be seen.

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