Tuesday, July 28, 2020

Nicholas Sandmann and the Mediots.

I wasn't blogging when the Covington Catholic students were thrown into the hurricane of hatred that followed one of their number smiling patiently at the bad-faith behavior of an activist.

I even initially thought that one of them had yelled "Build the wall!" in a juvenile crap-stirrer way. I was wrong about that, and I regret saying that I thought so.

But I never, ever understood the unrelenting shit-storm of rage which was hurled at them, which included cold-blooded takes from a supposedly Catholic shepherd, the ever-zeitgeist-friendly John Stowe. I have three sons, and the thought of them being subjected to this still infuriates me.

So when Richard Jewell's attorney Lin Wood took up Sandmann's cause, I was looking forward to some first-class legal carpet-bombing. I have yet to be disappointed.

Naturally, those who were just fine with the attempted destruction of Sandmann are doing their best to downplay the settlements obtained by Wood. Starting with the most recent settlement payer, CNN. Two of its contributors thought it would be a great idea to claim that CNN paid nuisance settlements to make it go away.

Wood has responded with fiery legal threats, claiming a breach of a nondisclosure agreement signed by CNN.

While it would be very interesting to see Brian Stelter dragged into court over his addiction to Twitter quick-hits, Jonathan Turley suggests that it all depends.
We do not know the language of the confidentiality agreement anymore than Zaid does. Often these agreements include provisions that bind the employees of the signatories. That is meant to avoid precisely this danger of companies attacking the other party through its employees while claiming adherence to the agreement as a corporate entity.

That however is tough when the entity is a new organization and this is news.  For example, people look to Rangappa for legal analysis and she was analyzing the story.  Moreover these tweets could be viewed by a court as de minimis, particularly Rangappa’s six words. Of course, that is the dilemma faced by CNN when it signs a sweeping agreement.

There is an interesting analogy to confidentiality agreements limiting future analysis or comments.  Some confidentiality agreements seek to limit the ability of lawyers to represent individuals in the future.  Model Rule of Professional Conduct 5.6 states that a lawyer shall not participate in “an agreement in which a restriction on the lawyer’s right to practice is part of the settlement of a client controversy.”

Here the agreement would contain a restriction of a news organization covering or discussing the settlement as part of a national news story.

The question could come down to the language. There are actually two types of provisions that could come into play, not one.  First, there can be a confidentiality provision barring comments on the settlement other than an approved statement.  These agreements often not only cover “disclosure” of terms but also comments on such terms.  Thus, parties will sometimes agree that they will not allow anyone to make “statements or otherwise permit or cause any publicity, directly or indirectly, concerning any Settlement Information.”

Second, there is often a non-disparagement provision preventing “heirs, assigns, agents, employees and attorneys shall not disparage or make any derogatory remarks whatsoever about any of the other parties thereto or their heirs, assigns, agents, officers, directors, employees and attorneys.”

CNN’s lawyers obviously knew that this would be a newsworthy story so they had a choice of allowing their employees to discuss the settlement or barring such comments. If they did the latter, the attorneys would ordinarily send around a memo informing all employees that they are not to comment on the settlement or go beyond an approved statement.

It will come down, therefore, to terms. However, much like not knowing about the money exchanged in any settlement, we do not know the terms.  There is no reason to assume that there was a tiny payment for nuisance value any more than a windfall.
The constitutional problem of binding all members of a media company to silence would be an interesting one, but not necessarily insurmountable. 

If I had to guess, the non-disclosure agreement probably can't bind everyone. But Wood is trying to strike down any attempt to build a nuisance settlement narrative. And the pushback ("liar") is a strong hint that it was much more than nuisance money.

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Be reasonably civil. Ire alloyed with reason is fine. But slagging the host gets you the banhammer.

It'll be fine.

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