Last month’s incident involving the boys from Kentucky’s Covington Catholic High School at the Lincoln Memorial may be over — but the legal battle has just begun.
Attorneys for Covington junior Nick Sandmann made a splash this week when they sent letters to 54 news outlets, lawmakers, celebrities, media figures and Catholic institutions asking them to preserve information related to the episode and warning of a possible lawsuit.
“There was a rush by the media to believe what it wanted to believe versus what actually happened,” attorney Todd McMurtry told The Cincinnati Enquirer.
Libel and defamation cases are notoriously difficult to win, but Mr. McMurtry is working with famed attorney L. Lin Wood of Atlanta, who represented the family of 1996 murder victim JonBenet Ramsey as well as Richard Jewell, the falsely accused Olympic Park bomber.
“I think the whole fighting-back part benefits Sandmann in some way, to restore his reputation in the court of public opinion as well as in the court of law,” said Clay Calvert, who teaches media law at the University of Florida.
Mr. Wood posted over the weekend a 15-minute video of the teen’s viral Jan. 18 encounter at the Lincoln Memorial with Omaha Nation elder Nathan Phillips, which called into question the credibility of Mr. Phillips’ statements about the incident as well as his claims of service during the Vietnam War.
“Agenda-driven mainstream & social media attack & threaten a 16-year old student based on incomplete 30 second video clips,” Mr. Wood tweeted. “Who will take less than 15 minutes to learn the truth about what was done to Nick Sandmann?”
Those receiving the preservation letters included The Washington Post, The New York Times, CNN, National Public Radio, The Hill, The Atlantic, and TMZ, as well as more than two dozen journalists such as MSNBC’s Joy Reid and NBC’s Savannah Guthrie, who interviewed Mr. Sandmann on the “Today” show.
Sen. Elizabeth Warren, Massachusetts Democrat, and Rep. Ilhan Omar, Minnesota Democrat, were also included. So were celebrities Jim Carrey, Kathy Griffin and Alyssa Milano, as were the Diocese of Covington and Archdiocese of Louisville.
Meanwhile, attorneys with another Northern Kentucky law firm — Poston, Siefried and Schloemer — confirmed that they represent the families of other teens involved in the incident, which occurred after the boys participated in the 46th annual March for Life.
Mr. McMurtry said that not all of those who received letters would necessarily be sued. The recipients have not commented publicly, as is customary in matters involving legal action.
Do the boys have a case? Legal experts emphasized that it would be impossible at this point to evaluate the merits, given that no lawsuit has been filed, but agreed that simply making insulting comments about the teens would fall short.
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“If you simply hurled something like, ‘The kid’s smug’ or ‘He’s got a smirk on his face,’ that’s not really defamatory,” Mr. Calvert said.
For example, Mr. Carrey tweeted a painting of Mr. Sandmann and Mr. Phillips with the caption “baby snakes,” but UCLA law professor Eugene Volokh said that episode alone “could not possibly be actionable.”
“A pejorative is an insult, it suggests they’re bad people, but that by itself is not actionable,” said Mr. Volokh, who runs the Volokh Conspiracy blog on Reason.com.
Mr. Phillips accused the boys of chanting “build that wall,” although no video has shown that. If media outlets said that they did engage in the chant, “then that’s a factual allegation,” Mr. Calvert said.
“If you attribute a quote to somebody that they did not say, and that quote harms their reputation in some way, then that might be actionable,” he said. “So that might be the theory, because we haven’t seen the lawsuit.”
Then there are the questions of negligence and malice.
“You need actual malice, which is to say recklessness or knowledge as to falsehood, to get presumed or punitive damages, whether it’s a public figure or not,” Mr. Volokh said. “You can’t recover for opinion, whether the plaintiff is a public figure or not.”
Of course, there are other reasons to engage in legal action even if the odds of winning on the merits are slim, such as “turning the tide of public opinion in favor of Sandmann,” Mr. Calvert said.
“The video Lin Wood released is designed to fight this out in the court of public opinion about Sandmann as much as it is a court of law,” he said.