CNN has settled in a lawsuit with Nick Sandmann. Sandmann was the MAGA-hat wearing teen who became the center of a botched but viral story. The question is: Will media outlets learn the right lessons from this incident? … the likely answer is; No. They don’t learn. That was the answer from Charles Glasser.
Mr. Glasser is a lawyer who teaches media ethics and law at New York University and the Newmark Graduate School of Journalism at the City University of New York. He gave an interview to the Heritage Foundation about the outcome. This article comes largely from the work of Jarrett Stepman at The Daily Signal.
The incident, is it part of a larger pattern?
Sandmann became the center of a media storm nearly one year ago. A viral video emerged of him wearing a “Make America Great Again” hat standing in front of a Native American man at the National Mall in Washington, D.C. Many media outlets portrayed Sandmann as the aggressor. They also characterized him as a racist. That was before the facts of the encounter emerged disproving that narrative.
“I keep wishing and I keep hoping that they will learn their lesson, that being responsible instead of being first wins the day,” Glasser said. Glasser, who is also a former global media counsel to Bloomberg News, made the observation of the media’s handling of the Sandmann story was very similar to that of Richard Jewell. Jewell is now the subject of a new movie directed by Clint Eastwood. “Richard Jewell,” became the center of a similar media controversy when the Atlanta Journal-Constitution connected him to a bombing at the 1996 Summer Olympics in Atlanta. Jewell was eventually found to be clear of any wrongdoing.
Glasser said, “This is playing out, at least so far, both legally and in the real world, very much like the trials and tribulations of Richard Jewell.” In both cases, one outlet publishes a false story and then numerous other publications follow suit. Jewell took legal action and sued a variety of media outlets. “What Jewell did, and we’re seeing it here … the plaintiff’s team is pushing for a settlement on those republishers,” Glasser said.
The CNN argument
What is particularly interesting and most people look past this about the CNN case is the legal arguments the company was using to avoid legal repercussions, Glasser said. CNN made an initial motion to dismiss. In doing so, it made the argument that calling somebody a ‘racist’ is not a provable fact… therefore it does not rise to the level of libel. It’s extremely telling—it really went without report—that the CNN argument was that there can’t be a factual basis for calling somebody a racist.
Glasser cited CNN’s argument in a short article on Instapundit. CNN argues: “Courts treat statements characterizing people as “racist” as nonactionable opinion because they cannot be proved true or false. … Sandmann cannot as a matter of law base a defamation claim on this statement as it offers an expression of opinion so subjective as to be unprovable.”
Glasser points out the problem with this line of argument is that CNN analysts frequently call President Donald Trump and others racist as a statement of fact. “It’s fascinating that there is a news organization that will look the audience right in the eye and say, ‘We report facts and the fact is, Trump is a racist’ … To go into court and say that it’s not a possible fact, it can’t be a fact, that’s a disconnect that really deserves, from a societal standpoint, some thought, and discussion.” Glasser said. The CNN settlement in the Sandmann libel case is a big deal.
It happened to Jewell. It happened to Sandmann. What keeps it from being you next?
Though CNN is in the news business, and frequently labels Trump a racist, in court it argues that calling someone racist is not factual, but an opinion, Glasser said. “So you’ve got this political, societal section that says that being a racist is bad … and at the same time they go into court and say it’s not provably true, calling somebody a racist,” Glasser said. “I find that stunning.”
Glasser explains why he thinks CNN has come to settlement in its case with Sandmann. It has reached a resolution for an amount of money unknown to the public, instead of trying to win outright. “The sympathy out there and the attitude of the American jury pool no longer see reporters like Woodward and Bernstein crusading, but instead they think of Jayson Blair and Sabrina Erdely who make things up to suit their own agenda,” Glasser said.
Blair was a New York Times reporter who resigned in 2003 over making up information in stories. Erdely was a reporter for Rolling Stone Magazine whose story about a student who claimed to be raped at the University of Virginia turned out not to be true.
CNN’s desire to avoid discovery, a legal process in which the court may obtain emails and other communications that can act as evidence in the trial, could also be a reason for settling out of court rather than continuing the fight. “A lot of material, it may have been embarrassing or case-killing, it could have been discoverable,” Glasser said. “I’m not saying that there was anything like that, I’m not aware of anything like that, but it certainly goes into the mix.”
Glasser said he is not a proponent of heavy-handed financial costs for media outlets. That could hamper the field of journalism. He instead argued that the best solution in the Sandmann case would be for outlets to issue a public apology: “If I were Sandmann, instead of asking for money … my big ask would be an on-air correction and an on-air apology, and, you know, something in the permanent record of the internet, that they would publish a retraction and apologize. I think that’s the equitable thing and that’s the right thing.”
At the end of the day, media outlets can protect themselves by focusing on getting the facts correct before publishing rather than rushing to be first. This is especially important in cases where there isn’t a compelling public interest in running the story. The media has an obligation, especially in cases involving a minor, to report in a clear and precise way. “That’s where they took a wrong turn,” Glasser said. The CNN settlement in the Sandmann libel case is a big deal.