As was reported on Friday of last week, former Covington High School student Nicholas Sandmann settled his defamation/libel claims against The Washington Post Co., for an undisclosed sum. This settlement follows an agreement between Sandman and CNN which was announced in January 2020.
Sandmann filed suit against major media companies over their coverage of his encounter with Nathan Phillips (“Phillips”), a known Native American activist at the “March for Life” rally in Washington D.C. on January 19, 2019. Sandman was a high school student who had traveled with his high school class from his home in Kentucky to attend the annual rally. While there, Sandmann had his encounter with Phillips which was captured on video. The original “hot take” on the video was that Sandmann was an obnoxious “Trump Youth Punk” wearing a red MAGA hat, and he had confronted and stood nose-to-nose with Phillips with a smirk on his face in a show of disrespect to the Native American Elder who was quietly banging a drum.
But as well now all know, the media that initially smeared the Covington kids — with Nick Sandmann being the “face” of the white supremacist youths — as racists based on a misleading video that didn’t provide context for how the encounter between Sandmann and Phillips came to happen had it wrong. When other video surfaced showing the events leading up to the images of Sandmann and Phillips face to face, it was clear that it was the high school students Sandmann was with who were verbally attacked by a black nationalist cult group also holding a demonstration the same day as the “March for Life event.” Some media reported that a few kids made physical gestures swinging their arms as if using a “tomahawk” that some called offensive, the video showed they had been doing those same gestures before Phillips arrived. The video that set off the firestorm appeared to show Phillips standing in the middle of the high school kids, surrounded by them on all sides and not able to retreat, with Sandmann facing him face-to-face in the middle. But the additional information shows that Phillips walked up to the group after they were already gathered — waiting for their bus to arrive — and placed himself in the middle of their gathering. They did not “surround” him as reported, and rather than provoking anyone to act, audio later revealed that Sandmann was quietly signaling to a classmate that engaging the Phillips in argument was a bad idea.
Nick Sandmann took to Twitter in the aftermath of the settlement being announced, and among other things he said was “Two down, six to go,” a reference to the two settlements with CNN and the Washington Post, and the remaining lawsuits still pending against NBC Universal, which were also filed in 2019.
Originally, there were three separate lawsuits filed in quick succession — naming CNN, Washington Post, and NBC as defendants separately.
The CNN and Washington Post suits have now been settled.
Just prior to the COVID-19 pandemic shutting down much of the country in mid-March, including much work in the courts and legal community, Sandman’s attorneys had notified the federal court in Kentucky where the NBC case was filed that they intended to bring suit against five additional media companies — ABC-Disney, CBS-Viacom, New York Times Co, Gannett Co, and Rolling Stone. I believe the intention is to add them as defendants in the NBC case.
There has been some rank speculation among some media personalities and reporters that the settlements were only for “nuisance” value. No settlement terms were announced as both sides agreed to confidentiality clauses.
But even a “nuisance” value settlement in a case like this would be substantial. “Nuisance value” is the value that an insurance company puts on a case that relates to the cost to defend the case through trial, even if they expect to prevail. Attorneys fees and costs even for a successful suit like this would be well into six figures. A “nuisance value” offer is an offer made by the insurance company to pay a similar amount to the Plaintiff in order to make the lawsuit disappear. The insurance company spends the same amount either way, and by settling the case they eliminate the risk of an adverse outcome, no matter how small a chance they think there is of such a result.
So, even if you were to accept that Sandmann’s attorney’s have recommended that he accept “nuisance value” settlements with CNN and the Washington Post — which I do not believe to be the case — the purpose for doing so is other than what is being speculated. Sandmann’s attorneys clearly believe one or more of the remaining defendants is the most at-risk for a verdict in Sandmann’s favor from a federal jury in Kentucky. What they are doing with these early settlements is building a war chest to take on those large media companies. Early settlements are the cheapest ones. The attorneys/insurers for CNN and the Washington Post gave wise advice to cut a deal and get out of the case. I expect Rolling Stone and Gannett to get out in similar fashion, too.
That will leave Sandmann with ABC-Disney, CBS-Viacom, and NBC-Universal. All are multi-media platforms and all had extended coverage across the platforms of the Sandmann-Phillips encounter.
I’m certain that some of the settlement funds have been put away for the personal benefit of Nicholas Sandman as he moves into adulthood.
But, more than that, CNN and the Washington Post just paid for the litigation expenses of Sandmann and his attorneys to drag ABC/NBC/CBS through a trial on the merits of Sandmann’s claim.
Some members of the Supreme Court have expressed skepticism of the press-friendly jurisprudence of the Court beginning with Sullivan v. New York Times. Justice Thomas has said the decision is untethered to any constitutional provision at all — Justice Brennan simply invented the standards when he wrote the opinion.
Nicholas Sandmann may be the high school boy from Kentucky who helps re-write that law. The only way to do so is to take the major media to a trial and make them defend their reporting.
