The Covington Catholic Case Could Turn on ‘Actual Malice’

Nicholas Sandmann was an ordinary 16-year-old student at Covington Catholic High School, a school for boys in northern Kentucky, when he found himself standing at the foot of the Lincoln Memorial on January 18. He was wearing a red Make America Great Again hat that he’d purchased as a souvenir, and standing face to face with a Native American protester named Nathan Phillips. Sandmann smiled at Phillips, who was beating a drum.

Sandmann is now suing The Washington Post for $250 million in damages in the wake of a furious national debate over alleged anti–Donald Trump media bias that quickly became an object lesson in the perils of social media and the limits of objective truth without independent, on-the-ground reporting.

Sandmann’s suit claims that the Post’s linking to a viral video of him and Phillips, and its focus on his MaGA hat and a “relentless smirk,” were “negligent, reckless, and malicious attacks … which caused permanent damage to [Sandmann’s] life and reputation.”

To win his lawsuit, Sandmann must demonstrate that what was written about him was false. He will face what Kristine Coratti Kelly, a spokesperson for the Post, told me would be “a vigorous defense.” The newspaper has not yet filed a response to the suit, but it published an editor’s note on March 1 saying that its first story has been contradicted by subsequent reporting.

Sandmann’s case may turn on whether the “actual malice” standard established by the landmark 1964 case applies. The key question here for a judge to decide could be whether Sandmann is considered a public figure, with a much higher burden of proof, or a private one—just another