What the world needs now is love, sweet love, and a hell of a lot more defamation lawsuits.
The Washington Post has settled a lawsuit with Nick Sandmann, the Covington Catholic student smeared by the news media and by the usual Twitter mob after a grossly and willfully misrepresented encounter with a Native American leader in Washington after an anti-abortion march.
Sandmann and other Covington students were accused of instigating a racially tinged confrontation with Omaha activist Nathan Phillips; in fact, it was quite the other way around, but the boys were wearing red “Make America Great Again” hats, which was enough for the crack journalists at the Washington Post.
Sandmann filed a $250 million lawsuit against the newspaper for libel. (“Libel” is the word for defamation in print.) He filed similar suits against CNN and other outlets. CNN settled, and now so has the Washington Post. Others can be expected to settle as well — or to have a very tough time defending themselves in court.
Libel involves several criteria. In order to be libelous, claims have to be both false and defamatory, and, when they involve a public figure, they have to be made with “actual malice” or “reckless disregard for the truth.” As a longtime newspaper editor and columnist, I have been on both sides of this: threatened with libel suits over accurate and honest journalism as a bullying tactic, and subjected to defamation by others.
My view is that our libel laws are pretty good, but civil proceedings have the same problem as criminal proceedings, sometimes summarized by the maxim: “You can beat the rap, but you can’t beat the ride.” It costs money to pursue a legitimate libel case, and it costs money to defend against an illegitimate one.
Because his was a high-profile case, Sandmann was able to get first-rate legal representation without being obliged to spend a tremendous amount of money upfront. The Washington Post is owned by the world’s wealthiest man, which makes suing it more attractive. But other victims of defamation find it very difficult and financially risky to pursue justice. It is time for conservatives to put together a libel effort parallel to the efforts that have been made on behalf of gun rights and religious liberties, a kind of pro-bono defamation bar. The only way to get the Washington Post or CNN to stop the abuse is to make it cost them dearly.
Sandmann is pursuing litigation against Twitter, too, which raises a different issue. Under current law, companies such as Twitter and Facebook are not legally responsible for third-party libels published on their sites. (They are liable for any libel of their own making.) That seems to me the right way to do things, but that does not mean that Twitter should be considered a free for all. Joy Reid of MSNBC is being sued — rightly, in my view — for her smearing of California immigration activist Roslyn La Liberte on Twitter, falsely putting racist words in her mouth with what can only be described as “reckless disregard for the truth” at best. The account offered by Reid is flatly denied by witnesses. False and obviously defamatory: Reid should face a very heavy judgment.
And not Reid alone. It would not be proper to hold Twitter liable in the suit, but there is a very good case for sanctioning not only Reid but also MSNBC corporately, given the way media companies use the social-media activities of their on-air talent as an extension of their own business operations. Reid uses her Twitter communications as part of her MSNBC work, and her misdeeds should be understood as MSNBC’s misdeeds, too.
Even among those who are defamed, not very many are willing to put themselves through the ordeal of litigation and the financial risks associated with it. Here is an opportunity for lawyers — and people who care about accountability in journalism — to do some good.
Kevin D. Williamson is the author of the upcoming book, “Big White Ghetto: Dead Broke, Stone-Cold Stupid, and High on Rage in the Dank Woolly Wilds of the ‘Real America’ ” (Regnery).
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