Over the past few days, a social media shit-storm formed over footage of Catholic private school students in MAGA hats apparently engaging in some bigoted behavior while attending an anti-abortion march at the nation's capital. As more footage of the incident was released, the formerly crystal clear narrative of bigoted, privileged white dudes antagonizing a Native American demonstrator became a bit more muddied.
By the time the additional footage came to light, it was too late. Decisions had already been made about the mindset of the Catholic school teens, most of which were posted to Twitter. Some journalists and celebrities were in the mix as well, including a few that went so far as to ask for the kids to be doxxed.
What was made of the situation seemed to come down to preexisting notions of what kind of person would wear a Make America Great Again hat. Most of those notions were in agreement: a person wearing that hat is a racist. In some cases, this is probably true. It's unknown whether the students being called racists on Twitter are actually racist, but there's hardly enough clear evidence on hand to declare this a fact.
Whatever you make of the situation (and the hats), there's an article written that comes down firmly on your side. Robby Soave's article at Reason says everyone calling these kids racist is wrong because the extended footage shows details that don't align with the skewed narrative created by edited clips. Over at Deadspin, Laura Wagner says don't doubt your preconceptions: the footage shows exactly what people thought it showed.
The end result was a handful of teens being called racists, along with their private school, parents, and school administrators. Naturally, someone wants to sue about this. That someone is stunt lawyer Robert Barnes, who was previously seen here at Techdirt declaring a court's indication it would dismiss Chuck Johnson's lawsuit against Twitter a victory for his client. He also represented a person who trolled reporters into calling her a racist when she sued the trolled reporters who called her a racist.
Barnes says he will take any Covington student's case pro bono to sue anyone who called this student a racist. Barnes graciously gave everyone threatened by this uber-vague threat 48 hours to remove the supposedly libelous content. Some have complied. Others have doubled down. Most people appear to not care one way or the other.
Barnes has been making his way around right-leaning press outfits (Fox News, PJ Media) to inform everyone about his intent to sue. So far, he has yet to name any secured clients, but that hasn't stopped him from claiming he's going to sue people for forming an opinion.
So a lot of these journalists have been saying false statements about these kids, false statements about the kids that were at the Lincoln Memorial, false statements about kids that were in various photographs related to the school, slurring and libeling the entire school and all the alumni for the school, and all you have to prove is they were negligent in doing so and by this standpoint, by this point in time, it is clear that anyone who continues to lie and libel about these kids has done so illegally and can be sued for it.
Barnes' statement about the intricacies of legal law are a little vague. While it's true none of these minors could be considered public figures -- thus lowering the bar for bringing claims -- it's a bit more difficult than claiming anyone calling these kids racists are engaging in libel. Given the context presented by the original edited video that circulated throughout social media, it was a common opinion to form.
A far more rational take can be found at the Volokh Conspiracy, which notes the bar is lower for private figures, but not so low Barnes can step over it simply by alleging libel per se.
My guess is that the plaintiffs would have a hard time showing specific damages stemming from a particular Tweet or even a statement in an out-of-town newspaper. They may well be damaged by the controversy as a whole, but that doesn't mean they can show such damage stemming from a particular defendant's speech. They would therefore need to claim presumed or punitive damages; and that requires more or a less deliberate lie, not just a negligent mistake.
Will these teens suffer harm from being called racists? Most likely, there will be some fallout, but it will likely be localized and short-term. The bar Barnes needs to reach in Kentucky (where the students go to school) says defamation per se includes false attributions of "having a repulsive disease, criminality, incest, or promiscuity and uninvited seduction." None of those seem to fit the characterization most frequently seen in any of the nominal litigation targets' social media posts.
Truth is the absolute defense, of course, but it's unlikely the court will try to determine whether or not the students being called racists are actually racists. Possibly some of them are, but even racists get offended when they're called racists.
It's another cautionary tale about reacting too quickly to social media stimuli, but this time there's a bonus threat of mass litigation. Unfortunately, Fox News has clouded the issue by stating this will be a "class action defamation suit," which is, of course, a legal impossibility. Each plaintiff will have to file their own lawsuit as libel is -- with a few rare exceptions -- an individualized tort. Barnes is likely aware of this, but that hasn't stopped the impossible idea from taking hold. For added fun, visit the comment thread for the Volokh post, which contains 280+ highly-partisan comments (both sides!) and a large number of people incorrecting each other about the nuances of libel law. Oh, and it appears the parents of the student featured most prominently in the videos have decided it would be smarter to pay for their own legal representation, not that this guarantees a victory Barnes would be unable to secure pro bono.