Media outlets and personalities were scrambling over multiple versions of a video that showed a confrontation between Catholic high school students decked out in MAGA gear and a 65-year-old Native American man at the Lincoln Memorial. Initial reports, based on one version, characterized the incident as a bunch of young white teens taunting Native Americans, in particular Nathan Phillips.
Covington Catholic High School condemned the students, and media personalities and celebrities railed against them. The student shown face to face with Phillips, Nick Sandmann, became the poster boy for alleged smug, racist youths. Now, as many are now backtracking in light of additional information, the families of the students are considering legal action. Now the students are considering legal action themselves.
A video that shows more than an hour of what happened revealed that the students were on the receiving end of racist and homophobic rhetoric from a group known as the Hebrew Israelites. The students, who were there for the March for Life, responded with an aggressive-looking school cheer, but no racist remarks were heard from their side. As the situation grew more tense, Phillips could be seen walking in between the two groups, with other Native Americans behind him, as part of the Indigenous People’s March. He then walked right up to the students, banging a drum and singing in their faces. While some students could be heard mocking Phillips with a chant in rhythm with his drumming, Sandmann was not one of them, and none could be heard using racist words.
Sandmann claimed in a statement that he did not mean to smirk mockingly at Phillips, rather, he said he was smiling to show that he wouldn’t be goaded into more extreme action.
After the additional footage provided some context, many changed their tunes, or simply deleted their inflammatory tweets.
CNN’s Bakari Sellers deleted a tweet saying that someone should punch Sandmann and his classmates in the face. Another host from the network, S.E. Cupp, came forward with an apology saying she “100% regrets” reacting quickly to the initial video. The Canadian CBC News admitted fault and deleted a tweeet.
But what about those who didn’t retract or delete accusatory messages or stories about the students? Robert Barnes, an attorney and Law&Crime columnist, has been in touch with some of the students’ families about possibly filing lawsuits over the treatment the teens have faced.
Good apology. More needed. Don’t want to get sued? Retract, correct. Do it now. https://t.co/BlG5GEzEOz
— Robert Barnes (@Barnes_Law) January 21, 2019
“Anyone who issued false statements that cast the kids in a false light & fail to retract/correct” could face lawsuits, Barnes said.
Could they face legal repercussions? It depends.
Statements of opinion are protected speech. That means if someone merely gave their take on the actual facts, that would likely be okay. Presenting a factually inaccurate version of the events, however, is something different.
Typically, to prove a defamation case, one needs to show that a statement of fact was false, defamatory, and caused harm.
Those who reasonably relied on the information that was out there, however, could be in the clear if they later made corrections, since defamation laws generally have a standard of negligence when it comes to private citizens. If they had no reason to believe that what they were saying was wrong, they may not be liable. Of course, once new information came to light, those who didn’t correct inaccurate accounts or continued to present them could be in trouble.
Ronn Blitzer is the Senior Legal Editor of Law&Crime and a former New York City prosecutor. Follow him on Twitter @RonnBlitzer.
[Image via screengrab]
