Covington Catholic High School student Nicholas Sandmann sued The Washington Post for defamation related to its coverage of the incident in which Sandmann was portrayed as the perpetrator of the harassment of a Native American ‘elder’ after the March for Life in D.C. Sandmann also sued CNN in a separate lawsuit, and other lawsuits may follow.

Sandmann, of course, was not the perpetrator of anything. He simply stood there as Native American activist Nathan Phillips banged a drum inches from Sandmann’s face. Sandmann’s non-reaction, simply smiling, was seized upon by liberals as a disrespectful smirk reflecting white privilege. When more complete video beyond that initially promoted in the media became public, it was clear that Sandmann did nothing wrong.

In our coverage of the WaPo lawsuit, I expressed concern as to whether the lawsuit would survive due to the lack of an alleged false factual statement, Covington teen Nicholas Sandmann sues The Washington Post for defamation:

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….

After the Sandmann suit was filed, WaPo issued a curious ‘correction’ that sent a signal as to how it would defend the lawsuit by focusing on the totality of its coverage, Nick Sandmann lawsuit fallout: Washington Post issues small ‘correction’ and huge explanation:

A Washington Post article first posted online on Jan. 19 reported on a Jan. 18 incident at the Lincoln Memorial. Subsequent reporting, a student’s statement and additional video allow for a more complete assessment of what occurred, either contradicting or failing to confirm accounts provided in that story — including that Native American activist Nathan Phillips was prevented by one student from moving on, that his group had been taunted by the students in the lead-up to the encounter, and that the students were trying to instigate a conflict. The high school student facing Phillips issued a statement contradicting his account; the bishop in Covington, Ky., apologized for the statement condemning the students; and an investigation conducted for the Diocese of Covington and Covington Catholic High School found the students’ accounts consistent with videos. Subsequent Post coverage, including video, reported these developmentsViral standoff between a tribal elder and a high schooler is more complicated than it first seemed”; “Kentucky bishop apologizes to Covington Catholic students, says he expects their exoneration”; “Investigation finds no evidence of ‘racist or offensive statements’ in Mall incident.

A Jan. 22 correction to the original story reads: Earlier versions of this story incorrectly said that Native American activist Nathan Phillips fought in the Vietnam War. Phillips said he served in the U.S. Marines but was never deployed to Vietnam.

WaPo has now filed a Motion to Dismiss (pdf.), a full copy of which (including Memorandum of Law and Exhibits) is embedded at the bottom of the post.

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.

From the Introduction to the Memorandum of Law (emphasis added):

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. Plaintiff does not complain of the later news articles, but complains that the earlier ones included the observations and perspectives of the principal Native American participant in the incident and other eyewitnesses. 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. Stories often develop over time, as more witnesses emerge….

Whether judged as a whole or judged in isolation, the Post’s articles did not defame Plaintiff. Most of the statements that are the subject of the Complaint referred in general terms to a large group of students; they were not “of and concerning” Plaintiff in particular, as they must be to sustain a libel suit. And most of the statements that referred to him were statements of the subjective feelings and motivation of the Native American man who saw himself as a peacemaker trying to calm a rowdy crowd of young people and protestors. That man was entitled to offer his subjective point of view, and the Post had a right to report it—as it had a right to report the initial condemnation of the students’ behavior by the responsible diocesan and school officials.

In addition, the Post’s actual statements that are the subject of the Complaint do not convey the allegedly defamatory implications and meanings that the Complaint suggests. The Complaint relies heavily upon allegations of “defamatory gists” that were simply not present in the Post’s coverage, such as that Plaintiff engaged in “racist misconduct.” Compl. ¶ 7. The Post must be judged upon the actual words of its coverage, not the charged interpretations of Plaintiff’s lawyers. In short, the articles at issue may not have been flattering of the Covington Catholic students, but they do not give rise to a defamation claim by Sandmann. Indeed, the Post’s overall coverage—including the articles that the Complaint fails to mention—was not only accurate; it was ultimately favorable to him.

WaPo also takes a shot at Sandmann’s lawyers’ political motivations, much as the Complaint took a shot at WaPo’s political motivations:

Why, then, bring this lawsuit accusing the Post of engaging in “a modern-day form of McCarthyism,” and demanding $250 million in damages—a number chosen, the Complaint explains, because it is the price Jeff Bezos paid for the Post in 2013? Id. ¶¶ 2, 19. The inflammatory rhetoric of the Complaint and the nonstop public promotion of the suit by Plaintiff’s counsel suggest one motive: to strike a blow against the Post’s allegedly “biased agenda against President Donald J. Trump.” Id. ¶ 8. There is no fact alleged, however, to suggest that the Post’s coverage was motivated by an anti-Trump bias—and the prominent, front-page coverage given to Plaintiff’s version of events and the investigative findings in his favor belie any such motive. Politics has nothing to do with this case, and law warrants its dismissal.

Linn Wood, Sandmann’s lead attorney, pushed back:

“This lawsuit is not politically motivated,” Wood said via email. “I do not file ‘political’ lawsuits. This lawsuit arises out of false accusations published by the Washington Post against a 16-year old student who was wearing a MAGA cap purchased earlier in the day prior to the events in question.”

Wood also explained why Sandmann’s lawsuit makes note of the Post‘s alleged political motives:

A publisher’s bias and the bias of its sources are relevant in every defamation case and this case is no exception. The bias in this case, political or otherwise, is found in the Post’s coverage and not in Nicholas’ lawsuit which seeks redress for false accusations that permanently damaged his reputation and caused him to suffer emotional distress.

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.

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Sandmann v. Washington Post – Motion to Dismiss w Memo of Law and Exhibits by Legal Insurrection on Scribd