WASHINGTON, D.C. – On January 18, 2019, a group of Covington Catholic High Schoolers went to the Lincoln Memorial on a class field trip and had their lives forever changed.
The now infamous confrontation that occurred between Nicholas Sandmann and Nathan Philips has been covered over a variety of media platforms. The coverage regarding Sandmann and how he was portrayed became the subject of a lawsuit against The Washington Post.
The Complaint filed by L. Lin Wood, P.C. and Hemmer DeFrank Wessels PLLC, alleges that The Post published “no less than six false and defamatory articles of and concerning Nicholas.” The complaint alleges that Nicholas did the following:
Assaulted and/or physically intimidated Phillips
Engaged in racist taunts
Chanted with his classmates “Build that wall, build that wall”
Blocked Philips way and wouldn’t allow him to retreat
Tried to instigate a conflict
Violated the fundamental standards of his religious community and violated the policies of his school such that he should be expelled
Stood a “foot from the drummer’s face wearing a relentless smirk”
The Complaint alleges that The Post published these six stories negligently and with actual malice. “The Post published its False and Defamatory Accusations negligently and with actual knowledge of falsity or a reckless disregard for the truth. As one of the world’s leading news outlets, the Post knew but ignored the importance of verifying damaging, and in this case incendiary accusations against a minor child prior to publication.”
Nicholas suffered from the articles written by The Post as stated:
“The False and Defamatory Accusations were republished by third-parties and members of the mainstream and social media mob of other bullies, which was reasonably foreseeable.
The False and Defamatory Accusations against Nicholas are defamatory per se, as they are libelous on their face without resort to additional facts, and as clearly demonstrated here, Nicholas was subject to public hatred, contempt, scorn, obloquy, and shame.
As a direct and proximate result of the False and Defamatory Accusations, Nicholas suffered permanent harm to his reputation.” read complaint here
Stites & Harbison, PLLC and Williams & Connolly LLP, The Washington Post’s counsel filed The Washington Post’s Memorandum of Law In support of the Motion to Dismiss on April 9, 2019. In this Motion to Dismiss, they stated that:
“The news articles at issue were the first of several Post articles that provided ongoing coverage of the Lincoln Memorial incident and its aftermath as additional videos and additional accounts became available. ….. It was neither false nor defamatory, however, for the Post to report the comments of eyewitnesses, including the only participants who were speaking publicly about the matter on the day that videos of the event went viral on the internet. Newspapers are often unable to publish a complete account of events when they first come to light.”
The Post’s Motion to Dismiss revolved around the argument that the articles didn’t mention Nicholas specifically but rather referred to the group itself and that the statements that were referred to him were statements of subjective feelings and went to the motivation of Philips.
The Post’s Motion also stated that ”Like other social media outlets, the Post responded to the rapidly growing social media attention and commentary by seeking out participants and observers of the incident.”
In the Post’s Motion, they point out that Nicholas Sandmann is not named until the sixth and seventh articles – “he had by then identified himself and issued a public statement”.
The Post’s lawyers argue this point of law: “because defamation claims challenge both speech and press rights, the First Amendment and the common law place ‘stringent limitations upon the permissible scope of such liability’”.
The Motion to Dismiss continues on to make this important piece of the law: “It is not enough that a publication disparages a large group of which the plaintiff is a member, the defamatory statement must make specific reference to the plaintiff.”
The Argument in the Motion to Dismiss that the Post makes is: “To a large degree it was the students’ own boisterous reaction to the initial insults of the Hebrew Israelites, and their continued celebratory response to Nathan Phillips’s approach, that transformed what would otherwise have been a routine set of protests in the nation’s capital into a social media sensation. It was, at the very least, predictable that in today’s world of ubiquitous smartphones and instant communication, the student’s rowdy display would attract attention beyond those present on the Mall that afternoon. It was equally predictable that the mainstream media would seek to report on what happened.” read the motion here
On July 26, 2019, Justice William O. Bertelsman ordered that “The Post’s motion to dismiss be, and is hereby, granted.” It was ordered dismissed with prejudice, meaning the suit cannot be brought again.
Justice Bertelsman ruled that the Court “may consider the seven articles, the Tweets, and the two YouTube videos,” in deciding the rule of law.
In Kentucky, the Defamation Law requires:
- “a false and defamatory statement concerning another;
- an unprivileged publication to a third party;
- fault amounting at least to negligence on the part of the publisher; and
- either action-ability of the statement irrespective of special harm or the existence of special harm caused by the publication.
The central part of this case is that the: “issue is only whether the statements are about Sandmann, whether they are fact or opinion, and whether they are defamatory.”
Justice Berteslman lays out that in order to make a case of defamation, the statements must be “about” or “concerning” the plaintiff. “Generally, the plaintiff need not be specifically identified in the defamatory matter itself so long as it was so reasonably understood by plaintiffs ‘friends and acquaintances….. familiar with the incident.'”
As stated by Justice Berteslman, to meet the first element of a defamation claim, the statement must be “objectively false.” This means that under Kentucky law, “a statement in the form of opinion can be defamatory, but it is actionable only if it implies the allegation of undisclosed defamatory facts as the basis for the opinion.” Justice Berteslman also goes on to state: “Although defamation is not a question of majority opinion, neither is it a question of the existence of some individual or individuals with views sufficiently peculiar to regard as derogatory what the vast majority of persons regard as innocent. The fact that communication tends to prejudice another in the eyes of even a substantial group is not enough if the group is one whose standards are so anti-social that it is not proper for the courts to recognize them.”
Justice Berteslman must rely on law in Kentucky established by Roche v. Home Depot U.S.A., 197 F. App’x 395, 398 (6th Cir. 2006) establishing the four corners of the written communication. “The words must be given their ordinary, natural meaning as defined by the average layperson. The face of the writing must be stripped of all innuendos and explanations.”
Sandmann alleges thirty-three statements made are defamatory. The reason the Court did not agree was that:
- The statements were not about Sandmann. The statements did not list Sandmann by name, picture or description.
- The statements were opinions and not facts. Statements of opinion are not actionable. “This rule is based on the right to freedom of speech in the First Amendment to the United States Constitution.” These statements did not “state or imply actual, objectively verifiable facts. Instead, these statements contain terms such as ‘ugly,’ ‘swarmed,’ taunting,’ disrespect,’ ‘ignored,’ ‘aggressive,’ physicality,’ and ‘rambunctious.'”
- “Even assuming, arguendo, that the above statements are ‘about’ Sandmann and that they convey objectively provable facts, ‘there is no allegation of special damages, (so) unless the publication may be considered as actionable per se,’ the Court must dismiss the action.”
Justice Berteslman did address the issue of social media, briefly. “And while unfortunate, it is further irrelevant that Sandmann was scorned on social media. That is ‘extrinsic evidence of context or circumstances’ outside the four corners of the article that renders the publication libel per quod.”
“First, the article cannot reasonably be read as charging Sandmann with physically intimidating Phillips or committing the criminal offense of assault.” “At best, Phillips is quoted in the article as saying that he ‘felt threatened’ and ‘that guy in the hat….. blocked my way.’
“Second, it is unreasonable to construe the article as meaning that Sandmann ‘engaged in racist conduct.'” “It is irrelevant that others may have attributed a derogatory meaning to this statement. There is nothing defamatory about being party to a stubborn ‘impasse.'”
Justice Berteslman also went on to state that “the ‘gist or sting’ of the article would not ‘tend to expose (Sandmann) to public hatred, ridicule, contempt or disgrace, or to induce an evil opinion of him in the minds of right-thinking people.”
Justice Berteslman concluded his Order stating, “The Court accepts Sandmann’s statement that, when he was standing motionless in the confrontation with Phillips, his intent was to calm the situation and not to impede or block anyone.”
“However, Phillips did not see it that way. He concluded that he was being ‘blocked’ and not allowed to ‘retreat.’ He passed these conclusions on to The Post. They may have been erroneous, but, as discussed above, they are opinion protected by the First Amendment. And The Post is not liable for publishing these opinions, for the reasons discussed in this Opinion. read opinion here