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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