Media Lawyer Explains Why CNN Settlement in Libel Case Is a Big Deal

by Jarrett Stepman: Will media outlets learn the right lessons after CNN settled in a lawsuit with Nick Sandmann, the MAGA-hat wearing teen who became the center of a widely botched, viral story?

“No. They don’t learn.”

That was the answer from Charles Glasser, 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, in an interview with The Daily Signal.

Sandmann became the center of a media storm nearly one year ago after a viral video emerged of him wearing a “Make America Great Again” hat and standing in front of a Native American man at the National Mall in Washington, D.C.

A deluge of media outlets portrayed Sandmann as the aggressor and a racist before more facts emerged to disprove 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 legal adviser to The Daily Signal and former global media counsel to Bloomberg News, said that the media’s handling of the Sandmann story was very similar to what happened to Richard Jewell.

Jewell, who is now the subject of a recently released 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 cleared of any wrongdoing.

“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,” Glasser said, where 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.

A Strange Argument on Racism
What is particularly interesting and mostly overlooked about the CNN case, Glasser said, is the legal arguments it was using to avoid legal repercussions.

“[CNN] initially filed a motion to dismiss, making the argument that calling somebody a ‘racist’ is not a provable fact and therefore does not rise to the level of libel,” Glasser said. “I think it’s extremely telling—it really got overlooked—that CNN argued 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 argued:
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.The problem with this line of argument, Glasser said, 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,’” Glasser said. “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.”

Though CNN is in the news business, and frequently labels Trump a racist, in court it argues that calling someone racist is not fact-based, 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 explained why he thinks CNN settled in its case with Sandmann, which ended up being for an undisclosed amount of money, instead of trying to win outright.

“The sympathy out there and the attitude of the American jury pool no longer sees reporters as 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, and 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.”

The Right Outcome?
Glasser said he is not a proponent of heavy-handed financial costs for media outlets, which 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, Glasser said, especially in cases where there isn’t a compelling public interest in running the story.

Nevertheless, the media has an obligation, especially in cases where a minor is involved, to report in a clear and precise way.

“That’s where they took a wrong turn,” Glasser said.
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Jarrett Stepman (@JarrettStepman) is an contributor of The Daily Signal and co-host of The Right Side of History podcast.

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