ARI SHAPIRO, HOST:
A lawyer for the Covington High School student at the center of a standoff in front of the Lincoln Memorial is suing The Washington Post. The lawsuit accuses the newspaper of bullying the student, Nicholas Sandmann, with, quote, "a modern form of McCarthyism."
A controversial video showed Sandmann standing across from a Native American activist during a protest march. Later, context revealed a much more complex picture of those events.
Derigan Silver is a media law professor at the University of Denver. Welcome.
DERIGAN SILVER: Thanks for having me, Ari.
SHAPIRO: What is your initial impression of this lawsuit?
SILVER: It's a long and complex lawsuit. It involves seven different articles written by The Washington Post, as well as a number of tweets by The Washington Post. And it brings up some very interesting kind of points about McCarthyism, as you mentioned. And the damages it seeks are sort of an interesting sort of calculation of damages. So it's a pretty complicated lawsuit.
SHAPIRO: Now, media organizations have a lot of protection under the First Amendment. So what is required for this kind of lawsuit to succeed?
SILVER: Well, a lot of it depends on the type of plaintiff that you are defending. And so the question will become, what type of plaintiff is this high school student? Is he - he's clearly not what we call a public official, somebody who works for the United States government or an elected official. He is probably not what is called an all-purpose public figure, which means that he is somebody who is widely known, has widespread fame or notoriety, or he has continuing news value.
What the courts might decide is he's a type of plaintiff which is called a limited-purpose public figure. And what kind of burden of proof does that place on the media organization when they're defending themselves in a lawsuit?
SHAPIRO: Because the media has more liberty to write things about a president of the United States than they do about some ordinary civilian who's not in the public eye.
SILVER: Exactly. The Supreme Court has said that defamation lawsuits are really a balancing act. We balance your right to freedom of expression, Ari, as a reporter or as an individual against my right to reputation - my right to my good name. And in normal situations where we're dealing with a private individual, well, the scales may tip a little bit more in favor of that private individual than they would in favor of you as a reporter.
But when we're dealing with anybody who is a limited-purpose public figure or an all-purpose public figure or a public official, well, then the scales are going to tip in favor of you, Ari, because the public has more of a legitimate interest in knowing what is going on with these individuals than it does in knowing what is going on with me as a private individual.
SHAPIRO: Social media is so central to this story. It's a key part of this lawsuit, and it's a key part of how this narrative spread, allowing people to jump to conclusions really quickly. How does that change the way a lawsuit like this plays out?
SILVER: It's complicated. We're taking law that developed in the 1800s or really reached the Supreme Court in the 1960s. And we're trying to take that old law, and we're trying to apply it to these very new, very novel situations.
You know, it used to be that the damage to your reputation was measured by your sort of standing in your local community. But now, when we have information spreading over the Internet, it sort of calls into question, where did the damage happen? What is your community?
And the court has said that we're not going to create brand-new law for these areas. So we're going to take this law that was developed for the printing press, and we're going to take this law that was developed for broadcast news, and we're going to sort of try to shoehorn it into situations that are presented to us by social media.
SHAPIRO: Let's take a step back for a moment. President Trump has talked about his wish to see libel laws changed to make it easier to sue media organizations. Just yesterday, Justice Clarence Thomas wrote a dissent arguing that a case siding with The New York Times in such a lawsuit was wrongly decided. What do you make of the broader landscape right now?
SILVER: These are very, very visible individuals with a lot of power in our society calling into question the basic function of one of our fundamental institutions of democracy, and that is the press.
And I think that those of us who believe that the press is a power of good and is a democratic necessity need to sort of stand up and start pushing back on this rhetoric and really saying, no. Just because you don't like a story doesn't make it fake news. Just because you don't agree with how you're being covered and you don't like the coverage doesn't make it a false statement.
SHAPIRO: Derigan Silver is a media law professor at the University of Denver. Thank you so much.
SILVER: Thank you, Ari.
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