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The Nicholas Sandmann Defamation Case

Professor Eugene Volokh quoted another lawyer saying magisterially in a post:

“It is clear that many media outlets took the clip on its face and republished it and drew conclusions from it without watching the whole video, which became readily available at a rarely early juncture in the whole controversy.”

No, isn’t clear at all, and that’s crucial to the litigation. That theory implies the top-paid news reporters in the world are careless idiots, completely unprofessional and completely willing to report stuff they know might well be untrue. The better theory is that they DID look at the whole video, as you’d expect even a college newspaper reporter to do, and they deliberately decided to report the story falsely.

The post does have a good discussion of the “involuntary public figure” doctrine. It misses a key element of Sandmann’s case and many others, though: he was thrust into the public eye as a result of being defamed, and for no other reason. Unlike people involved in litigation, marrying into rich families, etc., he did nothing newsworthy himself, nothing of public interest. He became famous only because he was defamed: the media said he had behaved in a way that was of public interest when it wasn’t. Thus, I would think the doctrine of “unclean hands”, at least, would prevent the news media from raising a “public figure” defense. That doctrine says that if you do something unethical that creates a legal argument useful to you, you can’t use that argument. https://dictionary.law.com/Default.aspx?selected=2182#:~:text=unclean%20hands,the%20subject%20of%20the%20lawsuit. Famously, you can’t plead for mercy at a sentencing hearing for parricide that you’re an orphan. That’s what the media defendants want to do here.

A corollary to that is that the defendants shouldn’t be able to plead that Sandmann is a public figure because he entered the public arena to defend himself. THEIR unethical behavior caused him to defend himself. It would be like saying that anyone who sues for defamation is per se a public figure because he entered the public arena and became newsworthy by virtue of filing a lawsuit.

I’m writing a paper relevant to the Sandmann case. Actual economic damages are small, or even negative. After all, he got to speak at the Republican Convention— though we have to be careful, because being a Holocaust survivor gives you a lot of cachet but we wouldn’t factor that against damages if you sued a concentration camp guard who beating of you helped make a good story for your book later.

But consider disgorgement. The media sold a lot of advertisements using the Sandmann story. That was unjust enrichment. The law is unclear on when disgorgement applies– which is why I’m writing the paper– but the general doctrine (see the Restatement of Restitution) is that if the defendants unlawfully harms the plaintiff, the plaintiff is entitled to the profit defendant earned from his unlawful act. The unlawful gain could be much more than the harm to Sandman, and under this theory he could collect it all.

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