Saturday, August 01, 2020

A Lawyer’s Perspective: Sandmann Likely to Win Against Twitter, More

The End of the Charade-- for Now

Something rare just happened. A young person who doesn't follow the liberal orthodoxy defeated a major liberal news outlet. Two, in fact. How did these things happen following hours and hours of blistering news coverage? The case of Nicholas Sandmann and the resulting legal battle is one that scholars will be reading about and studying for decades. It might also be one that news organizations rue for even longer. I wrote about the topic on my legal blog and discussed some of the major cases of precedent prior to this one. While the government is restricted by law and precedent from most forms of libel protection, there are important elements for the common person. This goes double for individuals who are not in the public eye. Nicholas Sandmann was not a public official. He was not a public figure. The attention by the major media types attempted to make him into a national figure. However, he just wanted to go back to Covington high school and finish his studies. The media made this into a classic circus. This is troubling in many ways that I will discuss below. Even more important for Sandmann and for future aspirants in libel cases, there is a new precedent. One that will likely challenge the existing liberal media establishment.

About the Author

Michael Ehline is a leading personal injury and civil rights attorney in the greater Los Angeles area. He writes about legal issues and current events. For more info or to speak with him, contact him at

A Media Circus-- but More

The events following the 2019 incident near the Lincoln Memorial was one of the most telling media environments I can remember. News organizations acted in almost lockstep to libel this young man. The overall attacks have been described by the Chicago Tribune as a "thought crime" and a "hateful leftist social media mob — shamefully egged on by prominent American journalists." Forbes also compiled a list of attacks against the high school students-- most of whom were minors. There is a little bit of self reflection in the media about the overall tone and excesses of the attacks, as seen in an article in the Atlantic. However, there is a strong chance that such a reflection is just passing. The overall media environment didn't learn from the attacks. In fact, what made Sandmann's lawsuit so attractive was that it showed the the media relished in attacking the young men at the Lincoln Memorial. With the smiling Sandmann in particular. Even worse, the media ignored the violent rhetoric of the Black Israelites.

Why Sandmann's Case Stuck

So why did Sandmann receive a settlement when other libel cases usually go no where? It's a combination of factors. For starters, Sandmann didn't ask for any of this. He didn't run for office. He didn't put himself in the public eye. The young man smiled in front of an older Indian man. He was also wearing a Make America Great Again hat, which seemed to be the kicker on why so many in the media decided to launch an all out attack on him. As court precedent showed prior, there is a different bar between those in the public eye and those who are not. Sandmann's actions made him certainly the opposite of a public official. Donald Trump can't sue the New York Times (in most cases) for what they write about him. Sandmann can sue (and win) over whether or not the Washington Post or CNN send virtual lynch mobs against him. There is also the issue of violence. As Sandmann said prior, there was and is a real fear for his safety. He is now recognized wherever he goes, despite the fact that he wanted no role in becoming nationally known. He and his classmates simply were going to the Lincoln Memorial. Instead, he and his classmates were called white supremacists and treated as pawns in a wider political and cultural war. All of this is unacceptable for the courts. Because the bar is much lower for non public officials, Sandmann was able to settle with both the Washington Post and CNN. That being said, there is strong evidence that Sandmann will also be able to collect against other media companies, including Twitter.

Future Cases

Sandmann hinted on Twitter that the social media giant is next. Twitter accepted the role of their verified users in slandering the young man. These "blue checks" were able to amplify their message of rejection and hate in a way they couldn't without the platform. Furthermore, the precedent of the successful case against both the Wa Post and CNN means that there is a good chance that Sandmann will result victorious here, too. For Sandmann, he was able to win because of the preponderance of evidence on his side. Both the Wa Post and CNN understood that they were in steep financial jeopardy if the case continued. Not only did Sandmann sue for hundreds of millions of dollars, the discovery phase would have been devastating to the network and the newspaper. If there was a full discovery phase in which Sandmann's attorneys got subpoenas for the network and paper's records, it could result in a crash in ad revenue (but maybe not eyes on the TV or on the news pages). There is a strong chance, at least implied by Sandmann's lawsuit and the result, that the network or individuals acting on its behalf, used their power to intentionally defame a young man. Since Sandmann did not plan his role in the Lincoln Memorial incident, there is an even stronger case against the network and paper. Let other liberal media sources beware next time they want to "cancel" someone for smiling.

Works Cited

Ehline Law, Why the Sandmann Settlement Shows the Importance of Libel Laws Chicago Tribune, Thought crimes, media abuse and those Catholic high school boys from Covington Forbes, The Level of Violent Imagery Directed Against Covington High Boys Is Dangerous and Wrong The Atlantic, The Media Botched the Covington Catholic Story

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