The Washington Post Settles With Nicholas Sandmann

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The Washington Post settled a lawsuit filed by the family of a teenager Nicholas Sandmann who was falsely labeled a racist who aggressively attacked an elderly Native American activist during a visit to the Lincoln Memorial with his high school class. The false account of the incident was widely circulated in the media. He was attacked on networks like MSNBC and CNN as well as in newspapers like the Post. He sued the Washington Post for $250 million but the settlement terms were not disclosed.

Sandmann, then 16, was accused by CNN and other outlets of harassing activist Nathan Phillips.  The students denied the accusation but many in the media ran with the attacks on the high school student as a racist Trump supporter abusing an elderly Native American. Videotaped showed it was the Covington students who were being harassed.

In agreeing to the settlement, Sandmann’s counsel stated that his client “agreed to settle with the Post because the Post was quick to publish the whole truth—through its follow-up coverage and editor’s notes.”  That is still not the case with many who viciously attacked this teenager.

We previously discussed the case and the example of one such segment involving “Above the Law” writer Joe Patrice in his interview with The Nation’s Elie Mystal, In the interview, Mystal, the Executive Editor of “Above the Law”, attacked this 16 year old boy as a racist.  Patrice agreed with Mystal’s objections to Sandmann wearing his “racist [MAGA] hat.” They also objected to Sandmann doing interviews trying to defend himself with Mystal deriding how this “17-year-old kid makes the George Zimmerman defense for why he was allowed to deny access to a person of color.” Putting aside the fact that Sandmann was not denying “access to a person of color,”  Mystal and Patrice were comparing this high school student to a man who was accused of murdering an unarmed African American kid and even assailing his effort to clear his name as the media continued to label him a racist. It was typical of much of today’s rage-filled commentary. These two writers had no qualms in attacking some kid as a racist in the national media while abusing him for trying to defend his reputation.  It was the popular thing to do in piling on Sandmann. He was merely a vehicle for the release of rage without the burden of reason or research.

Many writers who joined the mob attacking Sandmann have never apologized.  They just moved on to the next target to be declared a racist in a summary media judgment.

Indeed, Mystal has continued to slam Sandmann in postings on “Above the Law.”  In one such posting, Mystal wrote in part:

Fresh on the heels of Clarence Thomas wishing he could rewrite the First Amendment to make it easier to sue people, we’re getting a glimpse of what that dystopian future would look like. A team of lawyers have filed a $250 million defamation suit against the Washington Post, on behalf of Nick Sandmann and his family.

The suit alleges many bad things happened to Sandmann after his encounter with Nathan Phillips in front to the Lincoln Memorial. It does not allege that there was no encounter in front of Lincoln Memorial, or that the encounter was captured on video. Seeing as a truth is a defense to any defamation claim, it would be surprising for the lawsuit to survive a motion to dismiss.

I generally do not like lawsuits against the media, which often seek to punish good writers or reporters for performing a vital role in our constitutional system. I have repeatedly criticized President Trump for attacks on the media, his lawsuits, and seeking to change defamation rules.  This is the essence of the rationales cited by the Supreme Court for the protections forged in New York Times v. Sullivan  when it created the actual malice standard for public officials. The First Amendment requires “breathing space” to fully protect our constitutional values. Conversely, there is also a need for accountability in the media. The lawsuits like those by Sandmann can play an important role in reinforcing the most basic demands of journalism.  The issue was never whether there was “an encounter” at Lincoln Memorials. Such “encounters” occur all the time in Washington. This encounter became the focus of overwhelming national coverage because it purportedly showed a Trump supporter in a MAGA hat abusing an elderly Native American.

The lawsuit against The Post was reinstated after the court removed claims that were arguably opinions as opposed to factual statements.  The court focused on factual claims that Sandmann “blocked” Phillips and other fact issues that were allowed to proceed to discovery.  The rest of the lawsuit was previously dismissed. Some lawsuits are continuing toward trial.

I am glad that the matter was settled and we avoided the potential for negative precedent against journalists. However, there remain troubling ethical issues. The sense of utter abandon in such false accounts is itself a danger to good journalism.  We have seen recently how even iconic newspapers like The New York Times have yielded to the demand of the echo-journalistic model. The echo in the Sandmann story was to trash a teenager in the national media for something that he did not do. However, his wearing of a MAGA hat was enough evidence to defame him and mark him as a racist.

Even if Mystal believes that everyone wearing such a hat is a racist, there has to be a modicum of lingering decency (even a degree of regret) when a high school student is singled out falsely for abusing a Native American activist.

Notably, Mystal insisted “If enough of the media lives in fear of any teen in a MAGA hat, then this lawsuit was a success even if (when) it gets thrown out of court on a rail.” Mystal somehow makes the media a victim after responsible outlets admitted that it got the story wrong and that Sandmann did not harass this activist. The Post corrected its false reporting as have other outlets like CNN.  Good journalists do not fear teens in MAGA hats.  They fear getting stories wrong and unfairly attacking people without cause.

The Post, unlike Mystal, was not offering opinion commentary. I would defend Mystal’s right to engage in this type of vicious and reckless commentary.  Indeed, I have been a target on the site. It is the price we pay for free speech. We often defend people on this blog with whom we vehemently disagree. Indeed, today I criticized a suggestion of a libel lawsuit from the acting Homeland Security Secretary against Speaker Nancy Pelosi for her calling federal law enforcement officers “stormtroopers.” While insulting and irresponsible, it remains opinion. However, actual journalists have obligations of accuracy and fairness that are not so easily discarded.  This kid did nothing wrong in going to the Lincoln Memorial wearing a MAGA hat. Yet he became virtual chew toy for unhinged and unfair accusations of racism and intimidation.

This settlement was the right thing to do for the Post.