By: William Lawton
On December 19, 2020, former President Trump tweeted, “Big protest in D.C. on January 6th. Be there, will be wild!”. At 6:00 a.m., thousands of Trump supporters began gathering for Trump’s “Save America Rally” which was set to begin at 11:00 a.m. that day. At about 1:00 p.m., following speeches from Eric Trump, Donald Trump Jr., and Rudy Giuliani, former President Trump ended his speech by telling the crowd to move toward the Capitol and said, “you’ll never take our country back with weakness.” Minutes later, a clash ensued between the rioters and police on the Capitol steps. About an hour later, around 2:10 p.m., the rioters breached police lines and began to scale the side of the Capitol building. It was reported that rioters had breached the building around 2:30 p.m.
Individuals documented the entire day from the beginning of the Trump rally until the clearing of the Capitol using photographs and videos. There are photographs and videos of rioters vandalizing the interior and exterior of the Capitol; rioters stealing from the Capitol; and rioters threatening officers as well as each other. All in all, the FBI is analyzing over 140,000 images that could be used as evidence to prosecute individuals in various ways. The FBI has enlisted the help of social media companies such as Facebook and Twitter to help identify suspects. Phone companies such as Verizon are helping with the investigation by providing location data of specific suspects. Bloomberg reported the FBI is even using facial recognition technology to identify suspects.
Lastly, the FBI has set up a portal to accept tips and names of individuals photographed or videotaped while rioting or engaging in violence at the Capitol. Many individuals that have been recognized are being turned in by family, friends, and co-workers. While this portal is beneficial to investigators, there are concerning risks associated with claiming that a particular individual was engaged in rioting or criminal acts at the Capitol.
According to Sandy Davis, a First Amendment expert, the misidentification of someone as a rioter or the proper identification of someone who was at the Capitol but not involved in rioting or criminal activity can be libelous. Libelous acts can lead to lawsuits, fines, and settlements. Libel is a type of defamation expressed through written communication(s) that, “injures a person’s reputation, exposes a person to public hatred, contempt or ridicule, or injures a person in their business or profession.”
To make a prima facie showing of defamation (specifically libel) the plaintiff must show: 1) a false claim appearing to be fact; 2) written communication of that claim to a third person; 3) fault that amounts to negligence; and 4) damage to the person who is the subject of the false claim. Upon making a successful showing of the facts, individuals who have had their reputation damaged typically receive monetary compensation.
A famous libel case involves the New York Post (“the Post”) and two men wrongly accused of being involved in the 2013 Boston Marathon bombing. Salaheddin Barhoum, 16, and Yassine Zaimi, 24, were wrongly accused by the Post of being the individuals behind the Boston Marathon bombing. In April of 2013, the Post ran an article titled “Bag Men” which featured a picture of Barhoum and Zaimi. The headline implied that the two were viewed as suspects by the FBI. It turns out the men were avid runners that attended the Boston Marathon as spectators. The two promptly filed suit against the Post for defamation (libel), invasion of privacy, and negligent infliction of emotional distress.
The parties eventually reached a settlement agreement but the terms were not disclosed. While the case was not litigated, the court likely would have found in favor of the plaintiffs, or else the Post would not have settled. First, the Post falsely claimed that the FBI was seeking Barhoum and Zaimi and wanted to identify them. Second, the Post did this through written communication that was read by multiple individuals. Third, this was negligent because the article did not take proper care to assure that these men were suspects and called them “Bag Men” which was clearly a link to the bombs which were detonated in backpacks at the Boston Marathon. Fourth (and final), this article led to compensable damages for Barhoum and Zaimi. The damages the two suffered were a result of injuries to their reputation as well as public hatred.
Based on this case, family, friends, and co-workers of individuals pictured at the Capitol should be hesitant to communicate any false information about someone they know that was pictured at the Capitol. The media, including newspapers, television, and tabloids should also be hesitant to communicate any information unless they are 100% certain they have the facts correct.
During the Capitol siege, there were thousands of individuals present in D.C. and over 140,000 images taken. However, the FBI has only identified 400 suspects of which only 135 have been arrested. Before running stories or posting on social media, individuals and companies must make sure that the facts associated with pictures of individuals or individual’s names are 100% accurate. If individuals or a company make a false, written statement about someone to a third party(s) in a negligent manner, and that false statement causes damage to the individual then there are grounds for a defamation claim. Based on the sheer number of images and people at the siege of the Capitol, it is likely that defamation suits will arise out of the incident.
Student Bio: William Lawton is a second-year law student at Suffolk University Law School. He is a staffer on the Journal of High Technology Law. William received a Bachelor of Arts Degree in Political Science and Psychology from Providence College.
Disclaimer: The views expressed in this blog are the views of the author alone and do not represent the views of JHTL or Suffolk University Law School.
