- The Washington Times - Wednesday, January 23, 2019

A Nevada lawyer said Wednesday he is giving reporters and celebrities 48 hours to retract and apologize for false statements about the high school students involved in the now-infamous encounter with an American Indian activist on the National Mall over the weekend, and then he will begin filing defamation lawsuits.

Robert Barnes said the slew of social media posts attacking the Covington Catholic High School students — some of which came even after new videos undercut the narrative that the boys chanted racist slogans — crossed the line into slander. He said the first lawsuits will come next week, after he sees who has recanted and who has not.

Legal scholars said his chances will depend on the nature of the tweets, though they said it’s likely to be an uphill battle in the courts, where judges are likely to allow plenty of leeway for people to express opinions and it would be difficult to prove truth or falsity.

Even before Mr. Barnes‘ vow to sue, some prominent figures had been erasing their initial comments made after a first video emerged and was framed as the students, in town for the March for Life, antagonizing American Indian elder Nathan Phillips near the Lincoln Memorial.

As more videos emerged, it became apparent that a group of people who identify as Black Hebrew Israelites were taunting the students with anti-gay and race-baiting jibes — and none of the videos to emerge back up claims that the students targeted Mr. Phillips with racist or pro-President Trump chants.

As the story evolved, CNN’s Jake Tapper and Meghan McCain at “The View” deleted tweets shaming the young boys and have admitted being too quick to judge.

Meanwhile, Rep. Ilhan Omar, Minnesota Democrat, deleted a tweet saying the students taunted black men, led racist chants and said a woman isn’t raped if she enjoys it.

“That was a very good positive first step,” Mr. Barnes said, adding he wants to see celebrities such as Kathy Griffin and Alyssa Milano retract their claims.

Ms. Griffin called for people to “name these kids” and “shame them” in a tweet Sunday, and Ms. Milano criticized the students for attending a pro-life march.

“Let’s not forget — this entire event happened because a group of boys went on a school-sanctioned trip to protest against a woman’s right to her own body and reproductive healthcare. It is not debatable that bigotry was at play from the start,” she tweeted Monday.

Mr. Barnes said he has agreed to work the students’ cases pro bono and said some Covington students have retained him.

He said a team of paralegals, researchers and security personnel also have stepped up to help.

“The families will have a complete team of legal counsel,” Mr. Barnes told The Washington Times. “It is the most extraordinary outburst of voluntary action I’ve ever seen for any legal matter I’ve been involved in.”

Mr. Barnes says because his clients are private citizens and minors, he only has to show those making false statements were negligent. He doesn’t have to prove they willfully disregarded the truth, a higher legal standard used for defamation cases involving public officials.

Howard Wasserman, a law professor at Florida International University, said where Mr. Barnes files his lawsuits will matter.

“Different states do different things,” he said.

Mr. Wasserman also said those who based their opinions on what they interpreted from videos of the incident may be shielded.

“Once you start talking about what you see in the video, I think falseness becomes really difficult to prove,” he said.

Mr. Barnes, though, said courts have ruled an opinion can be defamation if its truth or falsity can be determined by a jury.

He said the statements claiming his clients approached Mr. Phillips and yelled racial slurs are both statements of fact that have shown to be demonstrably false from the subsequent videos that have emerged.

“That is something a jury can determine,” Mr. Barnes said.

Eugene Volokh, a law professor at University of California, Los Angeles, said a lot will depend on the specific tweets. He said individuals calling for the students to get expelled or saying the kids are racist may be unsound opinions but aren’t statements of fact.

“Those things may simply not be libel at all because they are simply expressions of opinions,” Mr. Volokh said. “You would need to have a false statement of fact and not just an unjustified opinion.”

Josh Blackman, a professor at South Texas College of Law, said Mr. Barnes‘ claims could be successful depending on who he sues.

“Some of the tweets I saw proved to be outright false. Those outlets should consider retraction,” Mr. Blackman said.

⦁ Valerie Richardson contributed to this report.

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