A federal judge in Kentucky dismissed a lawsuit against The Washington Post brought by Nick Sandmann, one of the students of Covington Catholic High School who were in January confronted by a Native American activist, prompting a whirlwind of media coverage, much of which, Sandmann alleged, was defamatory.
On Feb. 19, Sandmann’s lawyers, Lin Wood and Todd McMurtry, filed a lawsuit against The Post claiming $250 million in damages. Several other lawsuits, including against CNN and NBC, followed.
Yet District Judge William Bertelsman of the eastern district of Kentucky tossed the first suit on July 26, saying The Post’s coverage of the incident didn’t use language derogatory enough, the alleged defamatory statements weren’t “objectively provable facts,” and many of them didn’t target Sandmann specifically.
Sandmann’s lawyers and family said in a release they will take a few days “to evaluate the court’s adverse decision” and then launch the process to appeal.
“The law must protect innocent minors targeted by journalists publishing click-bait sensationalized news,” said McMurtry. “This is especially true in the current hyper-partisan political environment.”
The lawsuit stems from a Jan. 18 incident that took place after the March for Life anti-abortion event in Washington. Sandmann and other students from Covington Catholic High School were waiting for their bus near the Lincoln Memorial when they were approached by several Native American activists.
The encounter was extensively covered by media using short video clips that made it appear as though the students were chanting and cheering in mockery of one of the Native American activists, 64-year-old Nathan Phillips.
Longer video footage of the incident showed the students began to cheer and chant their school chant to drown out offensive remarks hurled their way by a small group of Black Hebrew Israelites nearby.
Some of the students, including Sandmann, were wearing hats with President Donald Trump’s campaign slogan “Make America Great Again.”
While Phillips told media outlets that the students had surrounded and harassed him, the footage showed it was he who approached them, inserted himself into their crowd, and, for several minutes, banged a drum within inches of the face of Sandmann, who responded only by standing silently with a smile.
Bertelsman, an appointee of President Jimmy Carter, ruled that several of The Post’s articles weren’t “actionable” because they didn’t name Sandmann, instead referring to the group of students as a whole. What the judge seemed to overlook was that a video was circulated with the articles which showed Sandmann face-to-face with Phillips, making apparent an association with Phillips’ comments that he “felt threatened” and that “that guy in the hat … blocked my way.”
The judge further said it was “pure opinion” on Phillips’s part that the students “swarmed” him and that Sandmann “blocked” his way and wouldn’t allow him to “retreat.”
“There were no undisclosed facts, and the reader was in as good a position as Phillips to judge whether the conclusion he reached—that he was ‘blocked’—was correct,” he said.
The judge didn’t address that The Post initially didn’t provide its readers the information from the longer videos that captured the incident from multiple angles, which showed Phillips was the one who approached Sandmann. Right behind Phillips were several people from his group or those that approached the students along with him, some of whom were capturing the moment on camera. If anybody could have blocked any “retreat” from him, it was them, the videos appear to show.
The judge pointed out that it’s not defamation if people “by an unreasonable construction” attach “a derogatory meaning” to words that are not by themselves defamatory.
He argued that Phillips’ statements that he “felt threatened” and that Sandmann “blocked” his way “would not tend to expose [Sandmann] to public hatred.”
“There is nothing defamatory about being party to a stubborn ‘impasse,’” he said, noting that defamation law isn’t “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.”
Yet Phillips’s statements and The Post’s coverage did expose Sandmann to public hatred, as he demonstrated by presenting a sample of the response to the coverage on social media.
As for the language of the coverage, which used words like “taunting,” “ugly,” “smirking,” “disrespectful,” “jeering,” “aggressive,” and “anti-Native American sentiment,” the judge said they constituted an opinion and were thus “not actionable in libel actions.”
Sandmann’s family was disappointed with the ruling, the statement said.
“I believe fighting for justice for my son and family is of vital national importance,” said his father, Ted Sandmann. “If what was done to Nicholas is not legally actionable, then no one is safe.”