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    Nicholas Sandmann lawsuit against Washington Post DISMISSED

    Nicholas Sandmann lawsuit against Washington Post DISMISSED

    Alleged defamatory statements were non-actionable opinions.

    When Nicholas Sandmann filed suit against The Washington Post (and later CNN and NBC) for defamation, I expressed skepticism that the lawsuit would survive a motion to dismiss:

    I’ve read the Complaint, but it is hard to find specific false statements about Sandmann. As the Complaint states many times, Sandmann relies on the alleged ” false and defamatory gist” of WaPo’s coverage (that phrase appears 24 times). Many of the statements attributed to WaPo that contributed to this gist are the repetition of statements from Phillips and others as part of the news coverage that create the impression (sometimes explicitly so) that the students (and by implication Sandmann) were the aggressors. I wonder, though, whether those conclusions by WaPo were opinions as a legal matter and thus protected by the First Amendment.

    So my gut is telling me there may be some legal problems surviving a motion to dismiss….

    When WaPo filed a motion to dismiss, these concerns were amplified:

    WaPo has now filed a Motion to Dismiss (pdf.) … As predicted, WaPo focuses on the lack of a specific alleged false factual statement. And as WaPo’s “correction” signaled, WaPo focuses on the totality of its coverage….

    Sandmann clearly was maligned, and became the object of liberals’ hate of Trump by proxy because of his MAGA hat.

    But whether he can overcome the legal hurdles to sustain a claim against WaPo remains to be seen.

    The Judge has just issued an Opinion and Order dismissing the Complaint with prejudice (meaning Sandmann cannot try to amend the Complaint).

    Here are some key excerpts setting forth the context of the analysis (emphasis in original):

    The Court must now determine whether Sandmann’s allegations state a viable claim for relief. These are purely questions of law that bear no relation to the degree of public interest in the underlying events or the political motivations that some have attributed to them.

    * * *

    … a “defamation claim against a media defendant cannot derive from ‘a statement of opinion relating to matters of public concern [that] does not contain a provably false factual connotation'” unless “the challenged statement connotes actual, objectively verifiable facts.” …

    The Court notes that the present motion does not require the Court to address the elements of truth/falsity, publication (which is not disputed), or negligence. At issue are only whether the statements are about Sandmann, whether they are fact or opinion, and whether they are defamatory.

    The Court then examined the allegations in the Complain that constituted the asserted defamation and found them non-actionable because they were (1) not to be specific to Sandmann, but a more general allegation against the group of teens, (2) opinions or subjective descriptions, not statements of verifiable facts, or opinions based on disclosed facts that the reader could independently assess, (3) not defamatory, at most innuendo.

    The Court attached charts (starting at page 30 of the pdf.) tracking the alleged defamatory statements with explanations for dismissal

    Here is the Court’s conclusion:

    As the Court explained at the oral argument on this motion,  in modern libel law there are many affirmative defenses, even for claims based on defamatory statements. These defenses are calculated to protect defendants, especially the press, from strict liability.

    The defense that a statement of opinion is not actionable protects freedom of speech and the press guaranteed by the First Amendment.

    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.

    This is pretty much what I expected to happen. I didn’t want it to happen, because there is zero doubt that the media treated Sandmann horribly. But wanting the law to be different than it is constitutes wishful thinking.

    The inevitable question is how this differs from Gibson’s Bakery v. Oberlin College. The difference is that, as explained in the summary judgement ruling, the court found the pertinent allegations against Gibsons to be statements of fact or statements suggesting there were undisclosed facts, and which were defamatory per se (regarding a history of racial profiling).


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    TempeJeff | July 27, 2019 at 4:14 pm

    Considering the entire clown show was video-recorded, apparently the Press did NOT want to see the entire attack by Phillips and his fellow malefactors.

    TempeJeff | July 27, 2019 at 4:16 pm

    Democracy dies in Darkness. WAPO slogan is completely ironic.

      artichoke in reply to TempeJeff. | July 27, 2019 at 4:49 pm

      Nah, just that in this case (as in so many others) they wanted to kill it. The newspaper that has the word “darkness” on the top of its front page!

    franker | July 27, 2019 at 4:18 pm

    Viva Frei has a very interesting legal analysis of this on Youtube.

    Covington Kid’s Defamation Suit Against WaPo DISMISSED! Lawyer Reacts – Viva Frei Vlawg

    It is well worth watching, IMO, and I wonder what the Prof would think about it.

    jaudio | July 27, 2019 at 8:31 pm

    The law needs changed, period. But it will never happen, so we will just plod along.

    All these media companies, Fox News included, can go fly a kite. They get half the country riled up to call a kid a racist and cause people to give him death threats and such, but then hide behind “it’s just an opinion”.

    Of course, their readers don’t view it that way. Everything is hot garbage in the media these days. Democracy dies with opinions masquerading as facts.

    Publius_2020 | July 27, 2019 at 9:38 pm

    It will be an interesting appeal. I agree with Professor Jacobson that there was a lot in the complaint that was non-actionable standing by itself. I always assumed that it was there for context or to show motive. Here’s what I think are the weakest points in the court’s Order:

    1. The judge refuses to connect the words to the photo, which I believe is contrary to law and in some cases results in almost silly assertions in the Order. In Statements 10 and 11 (Exh., p.2-3), the Court lists the Phillips quote (“that guy in the hat stood in my way and we were at an impasse. He just blocked my way and wouldn’t allow me to retreat.”) as well as the Post’s reporting (“a teen, shown smirking in the video, was blocking him from moving”).

    The court then lists the conclusion “Not ‘about’ Sandmann” as to both Statements. That’s a ridiculous assertion in view of the photograph next to the article and the explicit reference to the video. It’s also well within the ambit of a fact that can be proven or disproven. Whether it is defamatory is arguable, but the court’s willingness to engage in the intellectually dishonest assertion that it is not “about” Sandmann tells you everything you need to know about the overall “reasons” for the opinion. The judge didn’t like the claim, and he was prepared to bend reality to dismiss it on as many grounds as he could.

    2. In Statement 23, the court lists:

    “The image of a group of high school boys clad in ‘Make America Great Again’ hats, smirking and laughing as one of their members appeared to physically intimidate Nathan Phillips”

    And the court again refuses to admit that “one of their members” “clad in [MAGA] hats” is an obvious reference to Sandmann in view of the accompanying photo. Is “appeared to physically intimidate” a matter of mere opinion, as the court concludes? I think that’s a close call and likely not susceptible to dismissal on a pleading motion. The court also concludes that this is “not defamatory,” despite the fact that the Post – in the very same piece – states that the image “sent a ripple of fear and anger across the country,” which is virtually the definition of defamatory in Kentucky.

    That’s the crux of it. Did the Post state that Sandmann engaged in an act of physical intimidation of an elderly Vietnam veteran? Was that statement defamatory because, in the context of racism that the Post explicitly placed around these actions, it was likely to (and indeed did) cause Sandmann to be subject to contempt or hatred?

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