A teenager wearing a "Make America Great Again" hat stands in front of a Native American singing and playing a drum after a rally in Washington.
If the teens from Kentucky’s Covington Catholic High School got anything from their trip to Washington for the March for Life last month, surely it should have been that engaging in the political arena isn’t for the fainthearted. When you express your views in public — say, by participating in a rally or wearing the trademark hats of President Donald Trump — things can get unpleasant. People may disagree with you and say so to your face. Sometimes those people are right, sometimes they’re wrong, sometimes they’re crazy. There’s no guarantee that they will interpret your words, actions or intentions the way you want them to. But that’s life in the public square.
Lawyers for a Kentucky teen vilified after video of a confrontation in Washington went viral have sent the Archdiocese of Baltimore a letter indicating they're laying the groundwork for a potential lawsuit over comments the diocese made about the encounter.
In the case of Nick Sandmann, at least, that lesson apparently went unlearned. The teen who became the center of attention for his videotaped encounter with a Native American man, Omaha elder Nathan Phillips, has threatened a torrent of lawsuits against various individuals, media outlets and organizations, including the Archdiocese of Baltimore, alleging that they defamed him in their comments about the incident. We can't speak for every comment made by all those Mr. Sandmann is now notifying that he may sue — more than 50 people and entities in all, ranging from the Washington Post to Sen. Elizabeth Warren to actress Alyssa Milano — nor for the precise case law in all the states involved. But the Archdiocese of Baltimore unequivocally did not commit libel when it initially said he acted with “disrespect” in a tweet.
Even if we assume for the sake of argument that Mr. Sandmann is not a public figure and thus is entitled to more protection from defamation than, say, the president of the United States, he still has no grounds to sue. Maryland law requires four elements to find libel: “that the defendant made a defamatory statement to a third person; that the statement was false; that the defendant was legally at fault in making the statement; and that the plaintiff thereby suffered harm.”
A Catholic diocese in Kentucky apologized for condemning the Covington Catholic students who appeared in viral video with a Native American elder, saying it was “bullied and pressured” into making a premature statement on the controversial confrontation.
The first element fits — the tweet certainly went out to multiple third parties. The @archbalt Twitter account has 11,000 followers. The legal fault element is arguable. It requires a showing that the defendant was negligent or careless in making the remark, which Mr. Sandmann might argue to have been the case since the archdiocese later walked back its comments somewhat and apologized for speaking out “too hastily.” But did the archdiocese really have a legal requirement to research beyond the widely circulating video of that portion of the encounter between Messrs. Sandmann and Phillips and the extensive media coverage of it before speaking?
The other grounds are certainly dicey. Mr. Sandmann can make a claim to have suffered harm from the general opprobrium he received initially from the commentary about his actions (though we doubt the Baltimore archdiocese’s tweet contributed meaningfully to that). It’s also true that he has benefited from an equally vociferous backlash against the condemnation, including words of support from President Trump.
And then there’s the matter of truth. Under Maryland case law, the plaintiff in a libel suit has the burden of proving the falsity of the allegedly defamatory statement, and whether he was in that moment being respectful is inherently unprovable. Respect is in the eye of the beholder, and whatever Mr. Sandmann’s intent may have been at that moment does not change the right of the archdiocese or any other observer to characterize his actions as they wish. Such a statement falls clearly into the “fair comment” privilege in libel law that generally protects statements of opinion. Even if the archdiocese later regretted its initial comments — whether because officials there genuinely changed their views in light of new facts or because of blow-back from the teen’s supporters or any other reason — that doesn’t make the original characterization objectively false.
There’s a broader point here, too. The First Amendment creates a system in which confrontation of opinion is protected, even if it hurts someone else’s feelings or offends their sensibilities. That’s essential if we are to have a robust debate about the kind of society in which we live. Mr. Sandmann and his classmates engaged in that debate when they attended a political march and when they wore symbols of the president’s political campaign. Other people engaged right back. That’s not defamation, it’s democracy.