Libel suit filed by Covington Catholic Students names specific individuals including Senator Elizabeth Warren

A dozen public figures have been named in a libel lawsuit that claims their comments on the Covington Catholic incident were defamatory.

The suit was filed Friday on behalf of eight unnamed Covington Catholic High students present during the now-viral encounter with Native Americans on the National Mall, in which Nathan Phillips sang and played a drum as Nick Sandmann and his classmates stood around him. Some students chanted and performed a tomahawk chop, considered by some as mocking toward Native Americans.

This new lawsuit seeks a fraction of the more than three-quarters of $1 billion sought by Nick in his three suits against media companies. This suit was also not filed in federal court.

This suit, submitted by attorneys from Los Angeles and Fort Mitchell, Kentucky, seeks at least $15,000 and at most $50,000 for each student from each of the 12 defendants. That makes for a total of at least $1.44 million and at most $4.8 million.

Nick is not a plaintiff in this suit, according to his attorney.

The suit lists the following as defendants, claiming they made defamatory comments against the “Covington Boys,” as they are identified in the suit:

• Rep. Debra Haaland, a congresswoman from New Mexico;
• Ana Navarro, a Republican strategist and frequent guest on CNN;
• Sen. Elizabeth Warren, a congresswoman from Massachusetts and presidential candidate;
• Maggie Haberman, a New York Times reporter;
• Kathy Griffin, an actress;
• Matthew Dowd, a political consultant and analyst;
• Reza Aslan, a scholar and author;
• Kevin Kruse, a history professor at Princeton;
• Shaun King, an activist;
• Adam Edelen, a former state auditor of Kentucky;
• Clara Jeffery, the editor in chief of Mother Jones;
• and Jodi Jacobson, the editor in chief of Rewire News.

Haaland, who in 2018 joined Sharice Davids of Kansas as the first Native American women elected to Congress, tweeted about Phillips “being harassed and mocked by a group of MAGA hat-wearing teens.”

The tweet is defamatory, the suit alleges.

But David Marburger, a Cleveland-based First Amendment attorney, was critical of the suit’s credibility after reviewing it.

“Assuming politics don’t intervene in the judicial system, this is exceedingly weak,” he said. “I can’t see anything that is colorably actionable as defamation.”

Aslan is listed in the suit for tweeting a photo of Nick and Phillips and the question, “Have you ever seen a more punchable face than this kid’s?”

Honest question. Have you ever seen a more punchable face than this kid’s? pic.twitter.com/jolQ7BZQPD

— Reza Aslan (@rezaaslan) January 20, 2019

Warren tweeted that Phillips “endured hateful taunts.”

Kruse tweeted the students “mocked” Phillips and “taunted women.”

The same and similar language highlighted by the suit as defamatory was listed as protected speech by a federal judge in Kentucky just last week, when U.S. District Judge William Bertelsman dismissed Nick’s $250 million suit against The Washington Post.

Citing a Supreme Court decision, Bertelsman wrote statements that are “loose, figurative” or “rhetorical hyperbole” are protected by the First Amendment because they can’t be proved true or false.

He identified certain words used by The Post as falling under this protection: “swarmed,” “taunting,” “disrespect,” among others.

Another parallel exists between Nick’s federal suit and the one filed in state court. In his ruling, Bertelsman wrote some of The Post’s identifiers – “the teens” and “hat wearing people” – couldn’t constitute defamation of Nick because he wasn’t named or specifically described.

This new suit includes a tweet by Navarro that deems “MAGA-hat wearing teens” racist. And a tweet by King about “young kids in MAGA hats” is also included.

Marburger said the defendants may find protection because some of their comments were directed at a group rather than individuals. Though the suit says the statements were “interpreted by their [the students’] friends, family and associates as about them personally.”

The suit claims the defendants called for the “public punishment” of the students, who received hate mail and death threats.

Griffin, in a tweet, called on her followers to identify, shame and “dox” the students. To dox is to publish personal information and encourage the harassment of others.

Edelen, the former Kentucky auditor, is the only Kentuckian named in the suit. Marburger believes the decision to include him was made in an effort to keep the suit in state court.

To move the case to federal court, Marburger added, it would be necessary to establish what’s known as “diversity of citizenship,” meaning no plaintiff and no defendant live in the same state. Without Edelen, that would be true.

Marburger said a defendant can argue for a “fraudulent joinder,” essentially arguing that the claim against Edelen is weak, and its inclusion in the suit employed as a stratagem to keep the case in state court.

“I will bet any money they were scouring social media to find one Kentuckian who said something critical,” Marburger said.

But Robert Barnes, an attorney on the case, said by email that because no plaintiff is seeking more than $75,000 from any one defendant, the case could not legally be filed in federal court.

Marburger disagreed, saying an exception could be argued for based on eight plaintiffs filing identical claims against each individual defendant. A judge could then combine the damages sought against one defendant from all the plaintiffs, Marburger said, which would push the figure past the $75,000 threshold.

“It’s obviously motivated to defeat federal court jurisdiction,” Marburger said. “They figure if they go to federal court, they’re going to lose because of the Bertelsman ruling.”

Kevin L. Murphy is the local attorney representing the students.

Kenton Circuit Judge Kathy Lape will handle the case. She was elected in 2014 to an eight-year term.

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