The incident between high school student Nicholas Sandmann and Native American activist Nathan Phillips was a complex one. Many of the details and core facts of the initial reports from almost all major networks were inaccurate, and there is no doubt that the backlash the minor received was at least partially due to these inaccuracies. Yet, the actions of the Covington students, while not blatantly racist, were indeed problematic. As for The Washington Post, the newspaper may prevail in the lawsuit filed against it. Yet a larger question lingers, pertaining to The Post’s journalistic duties in a time of unprecedented polarization.
What took place in the altercation between the MAGA hat-wearing Covington Catholic High School students and Mr. Phillips during an anti-abortion march in January was far more complex than initial reports suggested. An initial video seemed to show a group of students mocking Mr. Phillip’s drumming and traditional chanting while Phillips and Sandmann faced off. Later, new videos shot by other bystanders surfaced, showing that the teenagers had been taunted by a small group of Black Hebrew Israelites, and that Phillips had intervened, standing between the two groups. Initial reports by media outlets such as The Washington Post inaccurately stated that some of the boys had blocked the Native elder’s path, chanted “build a wall,” and instigated the confrontation. Yet, Nicholas Sandmann, the student at the centre of this controversy, remains silent in all the clips that later surfaced of the confrontation. Clearly then, elements key to the story were misreported. Sandmann asserts that these errors mischaracterized the events and contributed to the accusations of racism and bigotry that—his lawyers claim—have put him through extensive emotional trauma.
Whether or not The Post’s reporting rises to the level of defamation rests on two key points of contention. The first issue is whether or not Sandmann is a “public figure”. The threshold for defamation is far higher for public figures than it is for private persons, as private persons need only to prove negligence by the party accused of defamation, while public figures must prove “malicious intent”. It is unclear whether Sandmann will be ruled to be a private figure. While there is a reasonable case for considering him a limited-purpose public figure, as he has certainly “gained prominence in a particular, limited field”, his lawyers will likely argue that he has not voluntarily become “a key figure in a particular controversy”, and that, given the involuntary nature of his rise to prominence in this matter, he remains a private person. A possible weakness to this argument comes from the distinctly political language of the lawsuit itself. The complaint seeks to “teach The Post a lesson it will never forget” and refers to the newspaper’s “well-known and easily documented, biased agenda against President Donald J. Trump.” These references suggest that Sandmann, whose parents are filing the lawsuit, is attempting to defend a political message, as does his engagement with multiple major networks through interviews and statements during the controversy. This considerable political engagement matters because “an individual may become a public figure ‘through no purposeful action of his own’ when he plays a ‘central, albeit involuntary, role in [a] controversy.’”
Clearly, then, there is a strong case for considering Sandmann a limited-purpose public figure, in which case his lawyers would have to prove The Post acted maliciously. It is very unlikely his lawyers could show compelling evidence of such intent. However, even if Sandmann were judged to be a private person, showing that the newspaper acted negligently would remain a considerable challenge to his lawsuit, as the First Amendment “protects the press’ right to report on a national controversy without a full grasp on the facts, and to provide commentary that ultimately proves inaccurate.” It is clear that The Washington Post misreported key facts, but that is in itself not defamation, as long as their errors were not due to negligence. Negligence would occur if they failed to verify questionable statements, conduct research previous to publication or use trustworthy sources.
But The Post had multiple witnesses reporting that the boys had indeed chanted “build a wall,” and many at the scene described them as threatening and having a “mob mentality”. Phillips himself stated that they had acted in a disrespectful manner. The presence of multiple witnesses whose accounts were not contradictory, even if their versions of events were eventually discredited by greater footage of the incident, suggest both that The Post conducted previous research and that it attempted to verify statements. The strongest argument Sandmann’s lawyers could present is that more footage than the one The Post presented was available at the time of the article’s publication and that this footage showed the boys were not speaking back and had just been grievously insulted by the Black Hebrew Israelites with all kinds of slurs. While the availability of this footage will likely be a matter of contention at the court, the fact that, within days, The Post retracted many of its claims and declared that the confrontation was far more complex than it had at first appeared will likely serve as a strong defence. The Post published this clarification—and many others—once more footage of the incident became available, suggesting a lack of malice. The quickness with which the newspaper moved to show the complexity of events it at first left out may well be sufficient defence against claims of negligence.
It seems unlikely, then, that the lawsuit against The Post will be successful. It is not impossible, and a settlement may well take place to allow the newspaper to move away from the issue as quickly as possible. Yet, the legal outcome won’t fully address The Washington Post’s ethical situation. Perhaps The Post fulfilled its legal journalistic duties. But that is the bare minimum. The Covington high schoolers mockingly mimicked natives chants and drumming and made the offensive tomahawk chop towards Phillips. Now these offensive actions are overlooked, precisely because they were exaggerated in the early reports. A constant thirst for outrage renders real stories powerless. The Post, in chasing the most scandalous story possible, failed to report the real story with the gravity and complexity it required.
What, then, should The Washington Post have done differently? To fulfill its informative purpose, news must be reported in timely fashion, and factual errors are consequently impossible to eradicate as new information emerges. Yet The Post should have considered, for example, waiting until remarks from Sandmann were available before publishing Philip’s statement. The failure to do so did provide a very one-sided account of the events. Moreover, as late as mid-February, The Post published a discussion of whether the fact the boys were wearing MAGA hats amounted to provocation. A month after the complexity of these events was revealed, to even propose this is quite tone deaf. Some of the students’ actions were certainly problematic, but to suggest that minors were instigating confrontation by wearing clothes with political messages to a march was to politicize the confrontation. It was not just The Post that, in making the story as bombastic and as political as possible, made regrettable journalistic choices. NBC described the first clip of the confrontation to emerge as showing Sandmann “taunting” Phillips. This is an exaggeration. Although, to be sure, there is something haughty Sandmann’s grin, Sandmann at no point in the clip is openly taunting. While events, then, must be reported quickly despite this risk, news sources must be careful to present balanced accounts, and to withhold from using, at least in the first reporting of events, language that promotes a certain reading of events. There is room in news for opinion, but analysis of events needs not come as quickly as objective descriptions of the events themselves.
The United States has only been more politically polarized in the years immediately preceding the Civil War. This polarization is also becoming increasingly asymmetric when it comes to media consumption habits, with Republican partisans moving away from traditional media networks and relying to an ever greater extent on conspiracy theory mediums such as Breitbart. In times like this, reliable journalism is vital. Inaccurate stories fuel precisely the distrust that allows fake new websites to rise, and this distrust makes dialogue nearly impossible between partisans. The Post may not have a legal duty to be more careful about bombastic, rushed stories such as Sandmann’s, but it certainly has a civic duty to do so.