Todd McMurtry was a lawyer, but he had never practiced defamation law before legacy media outlets demonized 16-year-old Covington Catholic High School student Nick Sandmann for the crime of “smirking” while wearing a Make America Great Again hat. Now, McMurtry has published a book about defamation law—a book he recommends as a kind of “car insurance” for cancel culture.
“I think that you should treat it like buying car insurance,” McMurtry tells “The Daily Signal Podcast” of his new book, “Dismissed: How Media Agendas and Judicial Bias Conspire to Undermine Justice.” He warns that most Americans with a traditional values approach to life should expect to face attempts to “cancel” them.
He notes that smear campaigns happen to “everybody,” from high school students to college athletes to professionals to housewives. “I’ve dealt with dozens and dozens of these people, and it happens all the time.”
“I think people need to understand how the cancellation process works and how it relates to press, the judiciary, and defamation law,” the lawyer says.
“You should prepare for it and you should expect that it is a real possibility because, I mean, literally one word—the wrong word, the wrong phrase, the wrong hat, the wrong drawing—all types of things can lead to your immediate expulsion from whatever it is you’re doing,” he warns. “Get the book because it will really tell you what you need to do to prepare for this and how to recognize it if it’s coming your way.”
McMurtry warns that Christians and others who support traditional values face an increasingly hostile culture, from the LGBTQ movement to the movement for “diversity, equity, and inclusion” or DEI.
“I think that there’s just a hunger to punish somebody so badly that it inflicts fear into the rest of the culture,” he explains. “In essence, it creates an enforced conformity or at least a lack of dissent from what the dominant culture is telling us about how we should live our lives.”
While McMurtry says he admires “the willingness to stand up” to it, he urges Americans to count the cost before doing so. “I think for most people, if you can avoid getting into it, then you should avoid getting into it. But if you can’t avoid getting into it, then you should be very, very careful about what you say.”
Before taking the Sandmann case, McMurtry’s practice focused on business disputes, municipal cases, and zoning law. Yet he knew the kind of kids that were at Covington Catholic High School, and he agreed to help Sandmann restore his good name.
The lawyer describes the case as a “baptism by fire.”
He recalls seeing the news on his phone while he and his wife were at dinner the night of Jan. 18, 2019. He saw legacy media outlets framing Sandmann, a 16-year-old boy who had traveled to Washington, D.C., for the March for Life, as the aggressor when Native American Nathan Phillips sang and banged a drum in front of Sandmann’s face. Journalists faulted Sandmann for “smirking,” baselessly claiming he had disrespected Phillips.
Sandmann sued CNN, The Washington Post, NBC, Gannett, The New York Times, Rolling Stone magazine, ABC News, and CBS News. CNN and The Washington Post settled in 2020, while NBC settled in 2021.
A trial judge in Kentucky dismissed Sandmann’s case against the five remaining defendants in 2022, however, ruling that the statements they had published were opinion. Last year, the U.S. Court of Appeals for the 6th Circuit upheld the dismissal.
McMurtry argues that the Supreme Court should overturn the 1964 ruling New York Times v. Sullivan. “Prior to that, the United States and its defamation practice operated under the common law, which was primarily a negligence-based application,” he explains.
After New York Times v. Sullivan, most defamation plaintiffs have to meet a higher “actual malice” standard, demonstrating that the person defaming them—in many cases a news outlet or journalist—acted with a “reckless disregard for the truth.”
Many advocates for a free press argue that the higher defamation standard protects journalists and enables a free press, but McMurtry notes that “the entire country of Great Britain” operates under the common law standard of defamation, “and they have functioning newspapers and a basically functioning press.”
Overturning New York Times v. Sullivan would “require the press to be careful about its reporting,” he argues. “I think it would serve as a tremendous check on cancel culture.”
McMurtry’s book discusses the Sandmann case along with other high-profile clients he has represented, such as Candace Owens. It also delves into the lawfare against former President Donald Trump.
The book outlines the anatomy of a cancel culture smear and provides clear, concrete advice on what to do if readers find themselves targeted for a “hit job.”
One of the first things McMurtry recommends is to write a letter if a journalist is asking questions based on false assumptions about you. The letter should effectively say, “What you’re about to write is false, and I don’t consent to you exposing the details of my private life.” The letter may not prevent a negative story, but it will prove helpful in court if that story damages your reputation.
