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Lawyers for Catholic students from Lincoln Memorial encounter warn Baltimore archdiocese of possible legal action

Lawyers for Catholic students from Lincoln Memorial encounter warn Baltimore archdiocese of possible legal action
In this Jan. 18, 2019, image made from video provided by the Survival Media Agency, a teenager wearing a "Make America Great Again" hat, center left, stands in front of an elderly Native American in Washington. (AP)

Lawyers for a Kentucky teen who was vilified after video of a confrontation went viral have sent the Archdiocese of Baltimore a letter indicating they are laying groundwork for a potential lawsuit over public comments the diocese made about the encounter.

A spokesman for the law firm Hemmer DeFrank Wessels of Fort Mitchell, Ky., confirmed Monday that the diocese is one of more than 50 entities to which it has sent such a letter. The letters ask recipients to preserve all information that “may be relevant to potential litigation” related to the Jan. 18 incident at the Lincoln Memorial in Washington.

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It was the first clear sign that attorneys for Nick Sandmann, a 16-year-old junior at Covington Catholic High School, and his family are taking steps that could lead to defamation or libel lawsuits against many who weighed in on the event.

At issue are comments, mostly on social media, about the role Sandmann played in the incident — a tense confrontation of words, music, chants and gestures — that squared Native American activists, members of an alleged black supremacist group and dozens of Sandmann’s schoolmates off against one another.

The incident took place as the students waited at the Lincoln Memorial to meet a bus on their way home from the March for Life, an annual anti-abortion rally in Washington.

Many who saw a three-minute, 44-second video clip initially viewed Sandmann and his classmates — most of them white and many wearing red “Make America Great Again” caps suggestive of support for President Donald Trump — as aggressors toward Native American activist Nathan Phillips. The clip showed a smiling Sandmann face-to-face with the 64-year-old Phillips, which many took as evidence that Sandmann was drawing on his membership in the majority white community to intimidate the elder.

The immediate response on social media ranged from disapproving to profane to threatening. Ex-CNN newsman Reza Aslan used Twitter to rip the teens as “MAGA brats” and asked followers if they’d ever seen “a more punchable face” than that of Sandmann. Actress Alyssa Milano called MAGA hats “the new white hood.”

The Diocese of Covington issued a statement that “this behavior is opposed to the church’s teachings on the dignity and respect of the human person” and suggested it might expel the students.

The Baltimore archdiocese tweeted on Jan. 20 that it “condemns the disrespect shown toward a Native American elder during the March for Life. Respect for life demands all are treated with dignity.”

When more video of the event emerged, showing Phillips approaching and engaging with the teens, it became clearer the incident was more complicated.

The Baltimore archdiocese was one of many social media commentators that backtracked or apologized.

On Jan. 21, its new statement sought to “clarify its message” by saying it condemned any disrespect to people based on skin color or ethnic heritage, but that it would be the responsibility of school authorities, parents and others to get to the bottom of a complex situation. On Jan. 23, it acknowledged in a third statement that “initial reports of the incident were at best incomplete” and issued an apology for “[speaking] out too hastily.”

That wasn’t enough to prevent attorneys for the Sandmanns — including L. Lin Wood, an Atlanta lawyer known for winning high-profile defamation cases — to send “preservation letters” to 54 entities, a collection of commentators ranging from Milano and the Hollywood comedian Jim Carrey to Democratic U.S. Sen. Elizabeth Warren of Massachusetts, The Washington Post, The Atlantic magazine and National Public Radio.

Todd McMurtry, an attorney with Hemmer DeFrank Wessels, said in a Jan. 25 statement that Sandmann stood still as Phillips banged a drum in his face, yet he “became the focus of false and defamatory accusations published and broadcast across the nation and the world.”

The letter to the Baltimore archdiocese, which arrived Jan. 29 at its Catholic Center headquarters and is signed by McMurtry, notified the archdiocese of its “obligation to preserve information that may be relevant to potential litigation between our clients and the archdiocese of Baltimore.”

“If our clients pursue litigation, we intend to serve the [archdiocese] with discovery requests to access your computer networks and systems, and to seek the production of relevant documents,” it read.

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Archdiocese spokesman Sean Caine confirmed receipt of the letter but declined to comment.

Attorneys say the standard for proving libel or defamation is higher in the United States than in other countries, as plaintiffs must demonstrate a conscious intent to mislead. But the bar tends to be lower in cases dealing with individuals who are not public figures, particularly when they are minors.

“Because these are all private citizens and in many cases minors and kids, the law is [that] saying anything false about them is libel,” Robert Barnes, an attorney representing the Covington students pro bono, said last month in a television interview. “You don’t have a defense of actual malice. All you have to prove is negligence.”

McMurty told The Cincinnati Enquirer on Friday that even though the lawyers "concluded we have a good-faith basis to sue" certain organizations, not all the organizations who were sent letters will necessarily be sued.

He added that his clients will demand retractions and apologies in addition to possible litigation.

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