By L. Lin Wood & Todd McMurtry
The next time you land an interview with a prospective employer, apply to college, or use an online dating service, be certain that your online presence is free of false and defamatory accusations.
Indeed, 70% of employers use social media to screen a candidate’s personality before hiring,[1] 68% of colleges use an applicant’s online presence as a factor for determining admission,[2] and 89% of surveyed dating app users report “researching” their dating matches online prior to going on the first date. [3] Employers are especially self-conscious about generating controversy that will potentially put them in a bad light with customers and shareholders. [4]
Nicholas Sandmann, a young teenager unwittingly made the centerpiece of the Covington Catholic media attack, will never have the chance to restore his online presence, despite his innocence. The internet’s permanence—negative, false and defamatory articles and headlines never ceasing to appear upon a Google search of the word “Sandmann”—will function as a perpetual thorn in Nicholas’s side throughout his adolescence and entire adult life. Consider what the future might hold. What follows the internet and the adoption of 5G technologies? Things could actually get worse. Only our imaginations limit what could be done. This is perpetual reputational harm [5]
Legal commentators suggest that Nicholas’s prayers for relief against The Washington Post, a demand totaling $250 million, and against Cable News Network, Inc. (CNN), totaling $275,000,000, do not represent an accurate reckoning for the damage caused to Nicholas’s reputation by the Post’s and CNN’s negligence and reckless disregard of the truth in furtherance of their political agendas. [6] We unequivocally disagree.
Misguided critics justify their flawed analysis of the damages claim on an outdated understanding of the news media landscape. [7] Before the internet and the twenty-four-hour news cycle, amnesia about certain stories was commonplace. [8] Yesterday’s news faded into obscurity on archival tapes and yellowing paper. [9] In contrast, with widespread access to the internet in 2019, it is impossible to completely eliminate a news story. The internet never forgets. Consider the following example from the “Duke Lacrosse case.” [10]
In 2006, Duke University athletes Colin Finnerty and Reade Seligmann were falsely accused of raping a dancer in Durham, N.C. who was hired to perform at a private party. [11] The two men were exonerated after DNA evidence and witness testimony proved their innocence. [12] To this day, nearly fourteen years after Finnerty and Seligmann’s exoneration, a Google search of the words “Finnerty and Seligmann” yield—on the first page of results—two original articles from 2006 accusing the two men of rape. [13]
Linda Fairstein, a reputable author and former prosecutor, explained in a 2007 Dateline interview that the public’s rush to judgment in the Duke Lacrosse case will forever place an “asterisk” after the names Finnerty and Seligmann. She stated that because of perpetual reputational damages, there was “no way” to make the falsely accused whole again. [14]
Let us not forget: Nicholas is a private figure that had no platform to defend himself from the baseless media assault that defamed him. He will never forget the death threats he received. The perpetual reputational harm he will suffer was not brought on by free choice, but by a plot to assassinate his character in order to advance a political agenda. Regardless of your politics, an innocent high school student should not be an acceptable casualty in a rhetoric war against the president.
It is time to recognize that the media landscape has changed, and so has the longevity of the harm that is caused to the subject of a defamatory article. Punitive damages are aimed at deterrence and retribution. [15] Without an adequate legal deterrence mechanism, news publishers will continue to be insulated from the consequences of their false and defamatory publications that, as in this case, caused irreparable and perpetual harm to an innocent minor.
Still, the fact remains: Nicholas has many years left to live in the shadow created by The Post’s, CNN’s and other’s reckless disregard of the truth.
Lin Wood and Todd McMurtry are co-counsel for Nicholas Sandmann in defamation cases brought against multiple media defendants, including The Washington Post and Cable News Network, Inc.
[1] Lauren Salm, 70% of Employers are Snooping Candidates’ Social Media Profiles, CareerBuilder.com (June 15, 2017), https://www.careerbuilder.com/advice/social-media-survey-2017; Saige Driver, Keep it Clean: Social Media Screenings Gain in Popularity, BusinessNewsDaily.com (Oct. 7, 2018, 7:23 AM), https://www.businessnewsdaily.com/2377-social-media-hiring.html.
[2] Scott Jaschik, Social Media as ‘Fair Game’ in Admissions, InsideHighered.com (April 23, 2018), https://www.insidehighered.com/admissions/article/2018/04/23/new-data-how-college-admissions-officers-view-social-media-applicants#.XG9OKs_pP8Y.link.
[3] Molly Fedick, To Google or Not to Google, HingeIRL.com (last accessed Feb. 21, 2019), https://hingeirl.com/advice/should-i-google-my-dates/.
[4] See id.
[5] See Richard J. Peltz, Fifteen Minutes of Infamy: Privileged Reporting and the Problem of Perpetual Reputational Harm, 34 Ohio N.U. L. Rev. 717 (2008), available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1669693.
[6] See, e.g., Fox News, Your World w/ Cavuto, TheDailyBeast.com (Feb. 20, 2019), https://www.thedailybeast.com/judge-napolitano-explains-to-fox-news-host-covington-kids-lawsuit-impossible-to-prove.
[7] See generally, Peltz, supra note 5.
[8] See Jason Feifer, Commentary: When Should the Internet Just Forget?, Wash. Post & ChicagoTribune.com (Oct. 30, 2015, 9:00 PM), https://www.chicagotribune.com/news/opinion/commentary/ct-right-to-be-forgotten-internet-20151030-story.html.
[9] Peltz, supra note 5, at 719.
[10] See generally, Peltz, supra note 5.
[11] Peltz, supra note 5, at 717.
[12] Lara Setrakian, Charges Dropped in Duke Lacrosse Case, ABC News (April 11, 2007), https://web.archive.org/web/20070518222004/https://abcnews.go.com/US/LegalCenter/story?id=3028515&page=1.
[13] Search Query of “Finnerty and Seligmann,” Google.com, https://google.com (search “Finnerty and Seligmann” without quotations, scroll to bottom of first results page) (last accessed Feb. 22, 2019).
[14] ABC Dateline, Collapse of a Case—Duke Case Dismissed, YouTube at 6:39 (April 10, 2007), https://youtu.be/3gh8oGF4iXQ?t=399.
[15] State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 416 (2003) (citing Cooper Industries, Inc. v. Leatherman Tool Group, Inc., 532 U.S. 424 (2001)).