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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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So, he was poorly advised, and the media managed to progress an allusion of diversitist thought and intent to color the human rights movement that has defied and brought unwelcome attention to the Pro-Choice establishment.

I’m sorry, but the media only verbalizes opinion in almost every matter, as we all tend to do, yet it is taken as fact.

Justice is never served when we have a media that is a propaganda wing rather than a news outlet, which has abandoned any of the principles they once claimed they had.

They give nothing but negative opinion on 90% of things reported about Trump. They are not held to account for their malice driven by their political agendas. It may well be the “law”, but we are not dealing with law abiding citizens who are principled and work to leave much of their biases out of the news. Given the news networks we have today the law clearly is inadequate to adjust the wrongs done to this young man which given today’s hate filled leftists, will follow him all his life.

The lies will persist. And he will find far more failure in life because of their treatment of him… for their opinion… well, maybe opinions should be banned from being part of any news broadcasts or printed media. Only facts allowed unless they clearly state this is opinion, just like they do with “alleged”.

Our country of “laws” is broken, as is our legal system.

    It’s not ALL bad. I never watch the fake news at all anymore, never. But I’ve been reading reports that CBS is starting to revamp its news operations to be less opinionated and more news-oriented. Let’s see if their audience numbers improve. ESPN obviously gets it now. They have gutted their staff and the word is out: stick to sports! You’re not in the communications business if no one is listening or reading what you say.

    Then there are the major newspapers who have been bought out or otherwise corrupted by deep-pocket politically-driven special interests. WaPo doesn’t care about readership with Bezos using them as his bullhorn. WaPo is like NYT and a handful of others whereby anything they produce becomes THE news. They write for each other, not for their audience.

    About a month ago, Pasadena Star editor Larry Wilson addressed a couple community organizations talking about the demise of local journalism. He also serves on boards so I am sure the journalists themselves, the ink-stained wretches who actually pound the streets, get it. All news is local. You need quality people on the ground locally to do it right nationally. But very few read the local papers anymore because they get their news from the top and pass it on after readers have already read it online. There is no reason whatsoever to read the local paper anymore. I can’t even look up how much rain we got yesterday or year to date.

    Local reporting doesn’t exist anymore other than what bloggers do and for the most part, local blogs don’t get national attention. That is where the struggle currently happening and where Drudge and other news aggregators and diseminators can turn the tide in the end.

    It can’t just be about profits or political influence. Truth in the public discussion has to matter. Journalism is the business of reporting who, what, when and where to everyone figure out why.

    So the facts are still being reported. It’s just that it isn’t very organized and so we news consumers have to do most of the work. There is money to be made getting it right because people really do have a hunger for the truth about what is going on. Drudge and Breitbart just to name two are prime examples of that. LI is getting there too.

    We may be in the opening days of breaking up the Masters of the Universe, a handful of Richie Rich egomaniacs who are strangling voices of their choosing to advance their own interests with profits, truth and public good be damned.

    It’s going to happen. I just hope I live long enough to see it.

      healthguyfsu in reply to Pasadena Phil. | July 27, 2019 at 9:45 am

      To me, nothing has said we only care about telling you the truth, not letting you have a voice like the rampant closure of comment lines on so many articles these days.

      No refutation, no discussion, no alternative expressions are allowed.

        2gandydancer in reply to healthguyfsu. | July 30, 2019 at 3:34 pm

        You can bypass the deletion (or paywalling) by sites of comment threads on their articles by using qwiket. If it doesn’t have a comment thread for the article you want to comment on already you can start one. (It uses Disqus, btw.)

      Silvertree in reply to Pasadena Phil. | July 27, 2019 at 12:57 pm

      For those who’ve not yet had the good fortune to discover it, Whatfinger is a superior aggregate news site—truly fantastic. It has been called “the new Drudge”, and is far better, IMHO. They have linked to some LI articles recently. You are in for a treat!

      Your comments about local news are exactly right. Our village’s community newspaper, written, assembled, and edited in an old frame house just beyond the center of the village (one block!) was excellent for years. It was an excellent source for village, town, and county government meetings and discussions information, local HS sports and information, a police report, an entertaining columnist (you folks would like him-James Lileks look out if he ever gets loose), obits, legal notices, classifieds, letters to the editor…everything a local newspaper should be. None of this is good enough for today’s would-be “journalists.” Alas, half the front page of last week’s paper was dedicated to a feel-good story with a jump to its half page conclusion inside the paper. We need fewer journalists and story tellers, more reporters. Does anyone really believe any of “The Gang” – AOC et al, would be in the House of Representatives had there been good local newspapers and reporters in their home cities? Or that their constituent cities themselves would be in the terrible condition they are? It’s debatable. We need more and better local press.

So, as I understand it; this shows that the Press can malign children because, they made this ‘public interest ‘ by their coverage. Freedom of the press, what a ridiculous notion.
But, ” WE KNOW WHAT YOU DID LAST SUMMER” . Goebbels would be proud.

    Milhouse in reply to TempeJeff. | July 28, 2019 at 12:09 am

    No, not because of public interest. “These are purely questions of law that bear no relation to the degree of public interest […]”.

    If you think that the freedom of speech and of the press is a ridiculous notion you don’t belong here. It’s what makes us free people. Are you seriously proposing that we should not be able to express our opinions?! Are you willing to give up that right yourself? Or do you only want to take it away from the rest of us? Because I don’t see how that could work.

Since all ‘NEWS’ is opinion, there is no actionable slander? Your children are next. Targeting conservatives is what’s for breakfast, lunch and dinner.

    Milhouse in reply to TempeJeff. | July 28, 2019 at 12:10 am

    Wrong. There is a very clear distinction between statements of fact and of opinion. And news is not opinion. The problem here is that no factual statement WaPo made was untrue. Its coverage of the facts was truthful. Its characterization of those facts, i.e. the opinion it expressed about those facts, is of course not actionable.

      2gandydancer in reply to Milhouse. | August 4, 2019 at 5:27 am

      Wrong. Phillips’ claim that Sandmann prevented him from retreating is most definitely a factual claim, not an opinion, and the videos posted by Phillips friends show clearly that Sandmann did no such thing.

      And, no, the WaPo can’t hide behind the fact that it was Phillips who lied. Read the part of the opinion where the judge correctly notes that Kentucky law doesn’t allow the free quotation of lies without demurral, if called for.

      Thw judge went on to say, ludicrously, that Phillips wasn’t talkinh about Sandman when her talked about “that guy in the hat” (quoted in the appendix, item #10). Defend THAT if you want to make a joke of yourself.

What can he do?

    Tom Servo in reply to gonzotx. | July 27, 2019 at 1:30 pm

    He can go home, get an education, use this attention to start a political career, if he wishes. Everyone now knows he was lied about, except for the people who were always going to hate him just for being white. So what the WaPo said really didn’t matter at all.

    Nothing the WaPo says actually matters anymore. It’s a garbage outlet with garbage ownership and garbage writers.

My initial reaction was “Bezos bought a judge …”.

You called it, Professor.

The court stated as fact “However, Phillips did not see it that way. He concluded that he was being “blocked” and not allowed to “retreat.” I don’t think that is true so the court is in error. The WaPo may have been repeating Phillips so perhaps they they have a defense there. Would they have had a duty top try to confirm the “fact” before printing it? I don’t believe they made any attempt to get Nick’s side of the story before publishing.

    Of course it was repeating Phillips’ claims. But careful wording is a solid legal defense and it worked here. I have no idea if the other big lawsuits by the legal team have any greater chance of success.

      2gandydancer in reply to JBourque. | August 4, 2019 at 5:32 am

      Nonsense. That Phillips was the one who lied is no defence at all. Read what the opinion says about “neutral reportage” (p.10),

    Observer in reply to Bill West. | July 27, 2019 at 12:25 pm

    Yes, the question of whether or not Sandmann had blocked or otherwise tried to restrict the Indian SJW’s movements was factual. It was capable of verification or refutation, either by interviewing witnesses or by reviewing the videotapes of the incident. It was not an opinion; it either happened, or it didn’t happen. The Post should not have been allowed to shield itself from Sandmann’s defamation claim simply because they reported the Indian’s lies without even attempting to determine their truth or falsity.

    Milhouse in reply to Bill West. | July 28, 2019 at 12:27 am

    The court stated as fact “However, Phillips did not see it that way. He concluded that he was being “blocked” and not allowed to “retreat.” I don’t think that is true so the court is in error.

    You don’t think it’s true that Phillips perceived it that way? The court’s point is that there is no objective difference between standing still in someone’s path and blocking them. The difference is entirely in your intention, and that is not a verifiable fact, so everyone’s entitled to their own conclusion about it.

    Now my conclusion, and I think most objective people’s, is that Phillips was harassing Sandmann, expecting him to back down and move, and was miffed that he ignored him. But I can’t prove it, any more than Phillips can prove his story.

      2gandydancer in reply to Milhouse. | August 4, 2019 at 5:36 am

      Like the judge, you dishonestly address only the “blocked” part of the sentence (indeed, Sandmann’s existence blocke Phillips from walking directly up the steps) and the “He just blocked my way AND WOULDN’T ALLOW ME TO RETREAT” part, which was a lie, pure and simple.

What recourse does he have?

This was a minor event at best. Essentially a guy bangs a drum, a kid stands there.

That’s it.

But somehow it is blown up into a massive national news story? Largely because of WaPo running articles on it repeatedly. Despite easy access to fact check, they run the random claims of a lunatic slandering these kids.

All I see from this is that big media is immune from slander laws. They can print whatever they want. They can do this to anyone. Unacceptable.

    Milhouse in reply to cashin. | July 28, 2019 at 12:13 am

    big media is immune from slander laws

    Wrong. They’re subject to exactly the same slander laws as everyone else. Anyone is entitled to express opinions, even wrong ones, so long as they don’t make false statements of fact. None of the challenged statements here alleged any verifiable facts.

      2gandydancer in reply to Milhouse. | August 4, 2019 at 5:38 am

      ““He just blocked my way AND WOULDN’T ALLOW ME TO RETREAT.”

      I’ve highlighted the non-opinion verifiable falsehood for you.

What happened to the tip thread?

Breaking news in Seattle that won’t be covered anywhere. The City Council voted to end City Police access to the LInX data. This is the interdepartment data sharing that lets officers see if the person they pulled over – like if the perp has pending charges elsewhere.

This is Seattle’s way of reducing crime… they simply take away LEOs ability to arrest anyone.

The story is posted on Safe Seattle’s facebook page… hope this can make it into a headline here.

Remember Ted Bundy’s killing spree? The lack of this system is why he was unstoppable.

BerettaTomcat | July 27, 2019 at 6:14 am

What, then, differentiates a news piece from an opinion piece, if the Sandman coverage was all opinion?

    RITaxpayer in reply to BerettaTomcat. | July 27, 2019 at 7:10 am

    If it’s in the Post, it’s an opinion piece.

    Milhouse in reply to BerettaTomcat. | July 28, 2019 at 12:29 am

    It’s not a question of a news piece v an opinion piece. It’s whether any individual statement alleges some verifiable fact, or merely expresses an opinion. In this case none of the challenged statements were factual claims. They were all conclusions, which are inherently opinions.

      2gandydancer in reply to Milhouse. | August 4, 2019 at 5:40 am

      ““He just blocked my way AND WOULDN’T ALLOW ME TO RETREAT.”

      The capitalized part is “opinion” only in the minds of loons and in the words of the dishonest.

Anacleto Mitraglia | July 27, 2019 at 7:30 am

My question is: Are Sandmann’s chances any better with CNN, NBC and the other oulets (HuffPost & c)?
How about tweets asking for the boys to be stalked, punched, expelled?

    Find an outlet that made a false statement of verifiable fact.

    First of all, no news outlet made such tweets. Second, such tweets are not themselves defamatory. They’re pure opinion and advocacy, which are absolutely protected by the first amendment. But any that contained factual allegations would be actionable, if you could track down who made them and determine whether they had any assets worth suing for.

It was dismissed with prejudice. This seems to happen more often to conservatives than to liberals. Liberal moon-shots get dismissed without prejudice so they get to keep trying until it’s something the judge can approve.

Why shouldn’t Sandmann have had a chance to revise in light of the court’s ruling?

    I can’t argue with that part. If the court thought there was zero basis to proceed because the Wash. Post gave Phillips’ opinion rather than its own, never stating outright that this was a fact, there is no conceivable revision that will satisfy the court.

    This does not necessarily change that the tale grew more blatant in the retelling by other media companies, but the WaPo covered its own rear. The end.

So basically the media can be an opinion rag protected by the First Amendment. They just have to find someone to quote, saying whatever they want said.

And they can ignore anyone saying the opposite.

Is this an accurate and unbiased statement of the law?


On a possibly related matter, if there are any special protections for “journalists” as opposed to you and me, I think they should be ended now. We are all the press. We all have computers and can post on public websites, modern equivalents of a printing press and pamphlets or newspapers.

    I’m pretty sure protecting opinion rags was kind of the entire point of the First Amendment.

    Now, if anyone reported the claims as fact… rather than implying it… that might be actionable. We’ll see.

      artichoke in reply to JBourque. | July 27, 2019 at 4:42 pm

      Should have been in opinion section then, as noted below. So WaPo spun this against him? Then you’re wrong, the newspaper did incite, and you’re acting as their shill.

        You made such an awful general point that I took the time to attack your awful general point. The First Amendment obviously protects opinion rags. That is very obvious.

        Quite disconnected from that is the Wash. Post presenting the activist’s psychic sense as the only way a sensible person could interpret the encounter, as if it took place on some ethereal plane of existence. Back in the real world, a little more checking might have established Sandmann was standing right there the whole time and Phillips walked straight to him, and decided his lack of submission constituted hostile and aggressive blocking of his path.

        I don’t think it’s a good ruling. But your broad brush is too broad.

          2gandydancer in reply to JBourque. | August 4, 2019 at 5:48 am

          Sandmann’s unmoving presence did indeed block Phillips’ path up the steps, although there was no evidence that that was indeed Phillips’ desired “path”. But Sandmann didn’t prevent Phillips from “retreating”. THAT was nover anything other than a lie, repeated without demurral by the Washington Post.

    Milhouse in reply to artichoke. | July 28, 2019 at 12:36 am

    There is no difference between “the media” and anyone else. Everyone is entitled to express their opinions and conclusions, about the news or about anything else. What you’re calling for is censorship, singling “the media” out and subjecting them to more restrictions than the rest of us.

    There is no special status for the “news section” of a “newspaper”.

    And no, the newspaper did not incite anything. You need to look up the definition of incitement.

By contrast, the defamation lawsuit against Mark Steyn is approaching its first decade, with no end in sight.

I am aware that the Steyn lawsuit is in a different court system, but there is no way this would have dragged on for nearly a decade if Steyn were a communist like the WaPo. The Deep State protects its own like the religious cultist Mann and the WaPo.

So he has no recourse at all?

This should be appealed. It’s time for a change in the law.

I would never want Congress to have the power to regulate the press, but the press should be subject to the rights of the people they harm.

I get the argument that the Washington Post worded the stories carefully enough to be classified as opinion, but those articles were taken for fact, and did great damage to a person who is underage.

It’s like the “Separate but equal” doctrine: good in theory, pernicious in the hands of people acting in bad faith.

    RITaxpayer in reply to Valerie. | July 27, 2019 at 12:29 pm

    If the Post ‘worded’ this like an opinion piece, shouldn’t it had been on the op-ed pages instead of the news pages?

    What a disingenuous rag the Post is.

      cashin in reply to RITaxpayer. | July 27, 2019 at 1:18 pm

      That brings up an excellent point. WaPo has an opinion section, correct? If they published outside of their stated opinion section, how could it then be presented as opinion? WaPo clearly was presenting this as a fact. Its the classic “clown nose on and off”

      cashin in reply to RITaxpayer. | July 27, 2019 at 1:18 pm

      That brings up an excellent point. WaPo has an opinion section, correct? If they published outside of their stated opinion section, how could it then be presented as opinion? WaPo clearly was presenting this as a fact. Its the classic “clown nose on and off”

      Milhouse in reply to RITaxpayer. | July 28, 2019 at 12:40 am

      No, it’s a stupid and dangerous point. The law doesn’t care what “section” something is published in. Factual statements in “opinion columns” are just as actionable as anywhere else. And conclusions published in “news stories” are equally not actionable for the same reason.

I expected this.

texansamurai | July 27, 2019 at 12:40 pm

regardless of how a piece is written(the perspective/tone,etc.)if the PURPOSE of the article is to lead the reader(or the public)to a conclusion that the writer/publisher knows to be false(Sandman et al instigated the ” incident ” by assaulting/interfering with the drummer boy)then isn’t that proof enough of deliberate slander,etc?

All the Post had to do was watch the entire 20 minute unedited video and it would have been clear that the child wasnt aggressive or confrontational in any way, shape or form.

Instead the post ran with the narrative that the child was an evil white racist Trump supporting thug and moulded its reporting around that image (whichbit purposely created simply because the child was wearing a MAGA hat).

Once again an Obama judge comes through for the left. Why it’s almost as if that’s what Barry had intended to happen from the get go!!

    artichoke in reply to mailman. | July 27, 2019 at 4:44 pm

    That seems to be why the judge dismissed with prejudice. Because he was afraid that the case could easily be refiled and clarified to overcome his representations in his ruling.

    2gandydancer in reply to mailman. | August 4, 2019 at 5:52 am

    He’s a Carter judge, so he’s presumably been a disgrace much longer than you imagine.

You can’t be sued for libel if you only report a content-less opinion piece.

Post was only in the clear because what they reported lacked any sort of content.

The absolute state of journalism today.

This is absurd. The ruling is saying that the media have no responsibility to verify any charge against a private citizen before reporting it. Sandman is a private citizen not a public figure. Imagine if some right wing source declared that some black private citizen was guilty of some odious act without attempting to see if the charge was in fact true.

This is nothing more than one more dishonest judge declaring that the media has no responsibility for anything they report on.

    Tom Servo in reply to trinko. | July 27, 2019 at 1:35 pm

    It’s not a dishonest judge, because he was in fact very honest.

    The media has no responsibility for anything they report on. That is a simple statement of fact, that’s the world we live in. Think about it, and you realize it explains the last several years well, and the last 3 years perfectly.

    Is this a sustainable situation? No, it isn’t. Something’s going to break, and when it does break things are going to get ugly fast.

      artichoke in reply to Tom Servo. | July 27, 2019 at 4:46 pm

      Then the media must lose all special privileges. We can’t have those with no responsibilities going around claiming special press privileges.

      Everyone has a camera, a microphone, a computer and can post to this and other public websites. We are all the press. No special privileges for WaPo, NYTimes or any of the rest. They don’t deserve them.

The judge had predetermined that he was going to rule in WaPo’s favor, if at all possible. He certainly did not rule in the light mot favorable to the nonmotioner, as he said he was required to do.

The judge made a big deal of his opinion that WaPo could be held harmless because they quoted a third party’s “opinion”. Of course, that presupposes that the third party is actually stating an opinion and not an untruth. It also ignores the case that the judge himself, cited, which holds that a publication CAN be held liable for reporting an untrue opinion. Since yhe late 1950s, it has been a prime tenet of journalism that no third party statement will be reported as fact, unless it is corroborated by another source or physical evidence. In this case, the physical evidence, the full, publicly available video, contradicts Philip’s statements as to what happened. Yet, WaPo, in its factual news stories never made mention of that.

Also, the fact that the WaPo did not specifically name Sandman, in any of it untruthful defamatory reports, totally ignores the fact that Sandman had already been publicly identified as the MADA wearing hat teen before they published. And, as Sandman was a very recognizable figure, due to these reports, it is reasonable to assume that readers would identify Sandman as the MAGA hat wearing teen, or at least one of them, referenced in the WaPo articles.
Sandman, as well as the rest of the people in his group were factually accused of doing things which they did not do, which damaged their reputations. Video evidence existed and was available to WaPo reporters, prior to publication, which refuted what they asserted to be facts. And, they either knew this, or should have known this, at the time.

The judge should not have dismissed this case. rather he should have allowed it to continue, either to trial or out of court settlement. WaPo tried to use innuendo and inference as a defense. Now, perhaps a jury would buy that. The again, perhaps not. But, there was more than enough evidence to support the viable legal theory that WaPo either knowingly and maliciously defamed Sandman, or defamed him through gross negligence, to deny the motion for dismissal. the judge arrived at the ruling that he wanted to make all along.

    artichoke in reply to Mac45. | July 27, 2019 at 4:48 pm

    and he did so with prejudice so that his judgment could not be challenged by a refiling and clarification.

    That’s malpractice by the judge, very dangerous for the public. “With prejudice” should be for the most obvious cases, not for the most controversial.

Case was dismissed too early. This is an Obama Judge type decision. Partisan hack.

Only one question that was not answered here. Did the WaPo ever use the word alleged or allegedly in their dictation? It was not reporting because, they parroted what Phillips said.

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.

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!

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.

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?