Most people have seen videos or imagery of, or at least heard about, the controversy involving Covington Catholic High School student, Nick Sandmann, and his classmates and Native American, Nathan Phillips, following a recent March for Life rally in Washington, D.C. Cameras showed the 64-year-old Phillips singing and playing drums near the Lincoln Memorial while Sandmann, surrounded by classmates, stared at him and smiled, prompting critics to say that the students were mocking and antagonizing Phillips because of his heritage.
Whatever one’s views of the incident or their politics, several points should be relatively uncontroversial in setting the stage. First, Sandmann and his classmates have been thrust into the national spotlight in a way they hardly could have imagined by being present at the March for Life event or even by engaging with Phillips in front of cameras. Second, members of the media and others on social media have leveled various accusations towards Sandmann and his classmates, many of which involve charges of racism and the like.
Sandmann and his family have since hired Lin Wood, a high-profile First Amendment lawyer specializing in defamation cases. One can easily obtain a variety of ill-informed opinions about Sandmann’s prospective legal case by turning on the television, but I try to break-down the actual likelihood of him succeeding in a defamation action against his critics. In short, his chances might be better than many realize.
Defamation law has an interesting history in the American judicial system. There is an obvious tension between the First Amendment, on the one hand, which protects speech and expression of opinion, and defamation laws, on the other hand, which protect people from damaging untrue statements. Common law (case precedent) on a state-by-state basis has informed the evolution of defamation and how it applies to various fact patterns.
First, there are two kinds of defamation: slander, which is spoken, and libel, which is written. Generally, the elements of defamation are as follows: an untrue, published statement that causes injury and is not privileged. Certain forms of defamation are known as defamation per se, meaning injury is presumed as one of the elements. Often these are statements that accuse one of sexual impropriety, criminal conduct, behavior incompatible with the proper running of a business, or having certain diseases. Other types of statements are privileged and do not constitute defamation. For instance, a false statement about somebody in a court filing would be privileged and not actionable by the target of the statement. Be very careful though because while statements in a court filing or court testimony may be privileged, what you say on the courthouse steps is not.
The seminal case that tried to resolve the tension between the First Amendment and defamation law and set the standard for the modern-day defamation test comes from the Supreme Court’s 1964 New York Times v. Sullivan case. That case defined the important distinction between public and private figures and held that public figures have a higher burden to meet in proving defamation. For a public figure to prevail, they must show that the speaker or writer acted with actual malice, meaning knowledge of the statement’s falsity or reckless disregard for it—a very high and difficult burden to meet. The theory behind the rule is that by entering the public forum, one should expect various forms of mudslinging and commentary and that the harm from a false statement is less than for a private figure who does not invite the same level of criticism and may have less opportunity to rebut it.
By contrast, a private person generally can prevail on a defamation claim by showing negligence, meaning the speaker or writer did not use a reasonable duty of care under the circumstances. Where the case law on defamation can become especially nuanced is in situations where an ostensibly private figure wades into a debate or engages on an issue that is of public concern and essentially becomes a public figure for a limited purpose. States like New York have a test for whether a person becomes a limited purpose public figure, which is also known as a “vortex public figure,” and whether they took an affirmative step to attract public attention, thereby thrusting themselves into the vortex of public opinion. With Sandmann, the question will be whether he became a public figure by his participation in a public march on a controversial issue and by subsequently engaging the media and conducting interviews.
I would argue that Sandmann and his classmates absolutely did not become limited purpose public figures by appearing in public with a large crowd to petition on a controversial subject. If that were the case, then defamation law would be rendered virtually meaningless, as almost anyone could be deemed a limited public figure unless they essentially remained anonymous and silent while cooped up in their home. Similarly, by Sandmann conducting interviews to defend himself from various accusations after-the-fact, I also would argue that he did not voluntarily wade into the public arena. Rather, he was thrust into it and forced to defend himself. Therefore, he should not have a higher burden for proving his claim because otherwise plaintiffs would be left with the untenable choice of either not defending themselves or having a much harder defamation case.
The second question then becomes whether speech directed at Sandmann was protected under the First Amendment. For defendants accused of defamation, opinion is protected by the First Amendment and is an affirmative defense (another absolute affirmative defense is truth). For certain kinds of allegations, like the accusation that somebody is racist, the analysis of opinion versus fact can be tricky. On the one hand, saying somebody is racist sounds very much like an opinion. On the other hand, should one be free to make such a damaging and harmful statement without some form of credible evidence that would justify it? In fact, my law firm has engaged in high-profile litigation over that exact issue.
Generally, plaintiffs have a challenge winning on vague statements that, while potentially harmful, lack the specificity to take them from protected opinion to unprotected factual assertion. As the statement becomes more specific, the line of protection fades. For instance, “these kids have a history of racist behavior,” starts to sound more-and-more like a factual statement. A statement that “the kids attacked the man” is almost certainly specific enough to defeat an affirmative defense of mere opinion.
There are also situations that fall into the category of mixed opinion in which it matters who is making the allegedly defamatory statement. If it is a person whose status indicates they have inside knowledge about the target of the statement, then it becomes more likely that the statement becomes factual in nature and that the plaintiff can prevail. In the Sandmann situation, that factor works against Sandmann since it is unlikely that a reasonable person would interpret statements through the media or on social media as based upon any particular inside knowledge about Sandmann. However, it also means that people who make statements and try to bolster their credibility by highlighting their particular knowledge about a person potentially expose themselves to a great chance of liability in a defamation matter.
There is also the question about whether the media, if it only presented certain parts of a recording without reporting fully on other recordings of which it had knowledge, can face liability for defamation. Again, given that Sandmann is probably not a public figure, the media’s standard of liability—at least in certain states—will be lower.
Finally, one practical point about the Sandmann case and defamation in general in the digital media age. Some commentators have wondered how Sandmann possibly could bring a lawsuit when so many people have opined, saying it would be like playing “whack-a-mole.” That’s the easiest question of all. It will be the moles with the biggest checkbooks. As always, this post should not be relied upon and does not constitute legal advice of any kind.