Cov­ing­ton Catholic teen be­gins le­gal bat­tle against me­dia, celebri­ties

The Washington Times Weekly - - National - BY VA­LERIE RICHARD­SON

The in­ci­dent in­volv­ing the Cov­ing­ton Catholic High School boys last month at the Lin­coln Memo­rial may be long over, but the le­gal bat­tle has just be­gun.

At­tor­neys for Cov­ing­ton ju­nior Nick Sand­mann made a splash 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 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,” tweeted Mr. Wood. “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.

“If you sim­ply hurled some­thing like, ‘The kid’s smug’ or ‘He’s got a smirk on his face,’ that’s not re­ally defam­a­tory,” said Mr. Calvert.

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,” said Mr. Calvert.

“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,” said Mr. Volokh. “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,” said Mr. Calvert.

“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.

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