Analysis: Sandmann's Lawsuits total Over Half Billion But Can He Win?

March 10, 2019

Analysis of the lawsuit brought by Attorney L. Lin Wood on behalf of Nick Sandman By: Nicholas Tindall, J.D. 

 

The Covington Catholic High School, Nicholas Sandmann, and Nathan Phillips case has caught the attention of nearly everyone in the U.S., and unsurprisingly Americans are divided on the issue. 

 

The right believes the kids did nothing wrong, and this is another example of fake news by the media.

 

The left believes the kids were wrong. A “smirk” and a MAGA hat clearly show these kids were racist, and they are insta-guilty of racism. 

 

Regardless of where you fall on the political spectrum, there is a very real $250 million dollar lawsuit pending against The Washington Post, and now there is news of a pending lawsuit against CNN. Attorney Lin Wood the lawyer representing Nick Sandmann recently told Fox News that they're about to drop a $250 million dollar lawsuit against CNN for their role in the mishap. There is not much information about the new suit, but Sandmann’s attorney gave some foreshadowing statements in a Fox interview on the matter saying “CNN was probably more vicious in its direct attacks on Nicholas than the Washington Post. And CNN goes into millions of individuals’ homes.”

Attorney L. Lin Wood on Fox News talking to Mark Levin about his pending lawsuit against CNN

 

Wood has also sent out spoliation letters to over fifty people/companies. Spoliation letters are often the first steps to a lawsuit. Accordingly, expect many more lawsuits to be filed by Sandmann's attorney.

 

Can he win? 

 

It is one thing to sue; it is another thing to win. To understand Sandmann’s chances, an understanding of the legal terms defamation is needed. 

 

Defamation is defined as a false written or oral statement that damages another’s reputation. Now I keep seeing articles here, here, and here where they claim these cases will rest on “actual malice.” First, realize that actual malice is a tough burden to prove. Actual malice is defined as knowledge (by the person who utters or publishes a defamatory statement) that a statement is false, or reckless disregard about whether the statement is true. In laymen’s terms, the plaintiff must prove the defendant knowingly lied and did so with the purpose of hurting the plaintiff, or that the defendant published an article without caring about the truth of the article. However, these articles and their “expert legal analysis” clearly do not understand the laws of defamation or have purposefully omitted legal factors to make the case seem like a close one.

 

For a plaintiff, who is a public figure or public official, to win a defamation case, actual malice needs to be proven. Public official and public figure are practically synonymous regarding defamation cases. A public figure is defined as someone who has achieved fame or notoriety or who has voluntarily become involved in a public controversy. Think of Donald Trump: before his presidency, he was still a public figure, and obviously, as the president, he is a public official. Sandmann and the Covington Catholic High School kids are not public figures at the time of the defamation. This point is key; it does not matter that they have become public figures; it matters what they were when the alleged defamation occurred.

So if they’re not public figures, what are they? There are two other classes of plaintiffs for defamation cases: (1) a private person who has injected himself/herself into a public matter, and (2) a private person.

 

A private person who has injected himself/herself into a public matter must also prove actual malice. The courts have reasoned that if you’re injecting yourself into the sphere of politics or a public matter, you are equal to a public person. For this class, think of the Parkland gun control kids, Emma González, and David Hogg. These advocates are/were private people who have injected themselves into the sphere of gun control and mass shootings. If they were to sue for defamation, they’d have to prove the defendant committed actual malice to succeed.


Interestingly, when the Right pounced on these kids regarding gun control, the Left screamed from the rooftops that they were children and should not be attacked. Alas, when even younger children were lied about and called racists, the Left pounced on these kids and must have forgotten their position regarding the Parkland kids, but that’s a different story. Now, back on track, Sandmann did not inject himself into a public matter when the defamation occurred. He was standing in a public forum, waiting for a bus to arrive, and was recorded by someone not associated with him. Sandmann was interviewed subsequently, but that was long after he was defamed.

 

Where the case hinges?

 

The other class, private person, is anyone who does not fit into the two categories above. Now, this is where the entire case hinges. Since Sandmann will fall into a private person category, he only has to prove negligence in order to win. Negligence is a much lower burden to prove. Negligence is defined as the failure to exercise the standard of care that a reasonably prudent person would have in a similar circumstance. Think of it this way, if you are handed a film/article, and there is another film out there that either corroborates or disproves your film/article, it is your duty to attempt to corroborate or disprove your original film/article before publishing. Welcome back to what is called ethical journalism.

 

The Supreme Court gave us this standard in Gertz v. Powell (1974), and Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc. (1985). The Supreme Court did hedge its position a little in these cases: (1) the defamation of a private person only requires proving negligence by the defendant to win damages, but requires the actual malice standard (knowingly false or reckless disregard) for punitive damages, and (2) the defamation of a private person on a wholly private matter, which the Supreme Court stated was a person’s incorrect credit report information in Dun & Bradstreet, can win damages and punitive damages by only proving negligence by the defendant. To tie this together, Sandmann is suing for $50 million in damages and $200 million in punitive damages. 

 

Sandmann’s attorney makes a very good case for negligence and reckless disregard in his suit. Sandmann’s attorney also made a pretty compelling video that supports his legal position as well.

 

"The easiest lawsuit for Sandmann will be against Phillips as he directly lied about the events of that day in his televised interview. However, Phillips does not have deep enough pockets to justify the lawsuit. Nevertheless, this suit would be the most justified, and would put people on notice that if you lie, you will face consequences."  

 

What are the chances of Sandmann winning against Washington Post you might ask? His chances are solid. This is one of the reasons numerous attorneys were begging to represent Sandmann. While there are no “slam dunks” in the legal world, this one is a wide open 3 pointer from Stephen Curry. The lawsuit can fail, but the odds are in Sandmann’s favor.


 

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