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Nick Sandmann Loses Appeal Over Dismissal of Defamation Claims Against Several Media Outlets

Nick Sandmann Loses Appeal Over Dismissal of Defamation Claims Against Several Media Outlets

Finds alleged defamatory statements about Sandmann’s encounter with an activist banging a drum in his face were non-actional opinion.

You will recall Nick Sandmann, the Covington (KY) Catholic High School kid who became the object of media fury in January 2019 when visiting D.C. on a school trip for the March for Life.

Sandmann was minding his own business when an activist got in his face banging a drum inches from his face.

Because Sandmann stood there stoicly with a slight smirk on his face, various media types went in a full-blown rage at him, falsely accusing him of initiating the confrontation, blocking and harassing the activist. Because he was wearing a MAGA hat, the full insane fury of the #Resistance was visited upon him.

We covered the story over dozens of posts. As more video and facts emerged, a very different narrative was revealed. The activist was the provocateur:

Sandmann hired counsel, and sued The Washington Post, (which issued a correction and settled), CNN (which settled), NBC (which settled) and NY Times, ABC, CBS, and Rolling Stone, and others.

The lawsuits were dismissed because the District Court found the alleged defamatory statements were protected opinion.

A panel of the 6th Circuit Court of Appeals affirmed the dismissal today in a split (2-1) decision. From the majority opinion:

On January 18, 2019, then-sixteen-year-old Nicholas Sandmann and his classmates had an interaction with a Native American man named Nathan Phillips by the Lincoln Memorial in Washington, D.C. Video of the incident went viral, and national news organizations, including the five Defendants (Appellees, or News Organizations) published stories about the day’s events and the ensuing public reaction. Sandmann sued, alleging that the Appellees’ reporting, which included statements from Phillips about the encounter, was defamatory. The district court granted the News Organizations’ joint motion for summary judgment, finding that the challenged statements were opinion, not fact, and therefore nonactionable. Sandmann appealed. For the following reasons, we AFFIRM.

The Court went through each of the statements sued-upon, and found that they were opinion, particularly the key media assertion that Sandmann “blocked” the activist (which the video shows was not true).

The dissent was as long as the majority opinion, arguing that the issue should have gone to a jury:

These cases raise classic claims of defamation. Through their news reporting, defendants portrayed plaintiff Nicholas Sandmann as a racist against Native Americans. Their characterization of Nicholas was vicious, widespread, and false. Defendants’ common narrative was readily accepted and effective to the extent that, on national television, NBC’s1 Today Show host Savannah Guthrie asked the 16-year-old if he thought he “owe[d] anybody an apology” for his actions and if he saw his “own fault in any way.”2 Moreover, the false portrayal of Nicholas caused the Diocese of Covington to issue an apology for its parishioner’s actions. An apology that was later retracted once the Diocese learned the truth. The truth is depicted on eighteen stipulated videos of the incident, which unequivocally show that 16-year-old Nicholas Sandmann did nothing more than stand still and smile while confronted by a stranger.3 These cases should be submitted to a jury to decide the factual issue of whether each defendant exercised reasonable care in its reporting. I disagree that summary judgment is appropriate. In this regard, the majority opinion affirms the summary judgment granted in favor of all defendants, not on the basis that their reporting was substantially true or that plaintiff was a public figure necessitating a claim of malice, but on the ground that all the news articles were opinion, not fact. I disagree and would reverse and remand for further proceedings.

In my view, the statements that Sandmann blocked Nathan Phillips’s ascension to the Lincoln Memorial; prevented Phillips from retreating; and impeded Phillips’s movements by stepping to his left and stepping to his right, were actions capable of objective verification. Thus, because these events can be objectively verified, I would hold that the opinion exception to the laws of defamation does not apply.

What next?

Law professor Jonathan Adler thinks this case might be ripe for ‘en banc’ review by the entire 6th Circuit, given the long dissent. After that, it’s probably the end of the road, I can’t see this as a case the Supreme Court would take.


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Close The Fed | August 16, 2023 at 8:56 pm

The idea that SCOTUS would allow major broadcast companies to bully a teenager by defaming him, offends me.

SCOTUS needs to adjust it’s priorities.

He ought to have won a dollar and that’s it.

This was reckless defamation and Behar admitted as much.

Char Char Binks | August 16, 2023 at 9:21 pm

*Noted cannibal Reza Aslan. Gotta give props

My list of cannibal’s ends with the fictional Hanibal Lector. Props to you on the rolodex of useless info. It’s a tough and thankless job.

He shouldn’t have switched lawyers when he was winning.

So how was Alex Jones sued for his opinion who didn’t identify a particular person after the statue of limitations?

    mailman in reply to Dr.Dave. | August 17, 2023 at 2:59 am

    Because one “opinion” was hated by the left while the other was gleefully 🍆 over.

    Milhouse in reply to Dr.Dave. | August 17, 2023 at 10:52 am

    Alex Jones wasn’t sued for his opinion. Opinions are not actionable. Calling someone a racist is an opinion, and is not actionable. Had Jones confined himself to expressing opinions he would not have been sued, because no lawyer would take an obviously losing case. Likewise had Oberlin College confined itself to calling Gibsons racist, it would now be $36M richer, plus its costs. Both Jones and Oberlin went beyond expressing opinions, and made statements of fact, which were false and defamatory, which is why they both lost.

I hadn’t joined LI at the time of the Sandmann debacle. Did LI cover/discuss how Nathan Phillips and his merry band of provocateurs disrupted Holy Mass at the Basilica of the National Shrine of the Immaculate Conception in DC the following day?

Phillips was nothing but a low level rabble rouser, trouble maker, and provocateur whose standing was so low that he was regularly ignored and dismissed by WaPo. Until, of course, when he decided to take on a child who had decided to commit the unforgivable offense of purchasing a MAGA hat from a street vendor during the March for Life. [The enemy of my enemy is my friend, right?] Sandmann hailed from deeply Red Covington Kentucky, where the vast majority of the population voted for Trump. He and his Catholic schoolmates went to our Nation’s Capital to attend the March For Life. Did these kids even know that the guy occupying the White House was persona non grata in the Nation’s Capital? Maybe yes, maybe no.

This kid, this child, did nothing to deserve the vitriol that was hurled at him as a result of Phillips’s deliberate and unprovoked confrontation. That it was the media that was at the forefront of the attack is particularly despicable. He deserves recompensation.

Opinion stated as if fact is not opinion…it’s just a false and defamatory statement.

    I would clarify it thus:
    An opinion backed by false information stated as if true, is not protected by being an “opinion” as the arguments in support of it are defamatory.

      Milhouse in reply to GWB. | August 17, 2023 at 10:58 am

      The opinion itself is still an opinion, and not actionable. The false statements of fact themselves are what’s actionable.

    Milhouse in reply to healthguyfsu. | August 17, 2023 at 10:57 am

    Opinion stated as if fact is not opinion…it’s just a false and defamatory statement.

    Not true. Opinions are not facts, even if one insists they are. Had Oberlin merely accused Gibsons of racism, there would have been no lawsuit. Saying “It is a fact that Gibsons is racist”, or “Gibsons is racist — that’s a fact” would not have changed that.

    An action for defamation requires an actual statement of fact, which is both false and defamatory. In Oberlin’s case it was that Gibsons had a history of racially profiling its customers. In this case it was that Sandmann had actively blocked the guy from getting past him.

      I know courts might say otherwise, but “racist” is a statement of fact, not a statement of opinion. It has a definition of thoughts and actions the accused has or has taken. Just because it’s used uncritically without factual support doesn’t make the actual accusation merely an opinion. IMO.

        Milhouse in reply to GWB. | August 17, 2023 at 1:32 pm

        No. Whether someone is a racist is always a matter of opinion, not of fact. It’s a conclusion that you draw, whether rightly or wrongly, from evidence of all kinds, of varying reliability. The underlying facts, if any, are facts; either they’re true or not. But the conclusion you draw from them is an opinion.

        “Biden murdered someone” is a statement of fact, which may be true or false; “Biden is a murderer” is an opinion based on that alleged fact.

          Yes. That’s the state of the law at the moment. The problem I have with it is that public “opinion” that you are a racist is viewed by just about nobody as mere “opinion” but rather as an objective statement indicating that you are despicable and evil. And it tends to stick. For all the negative consequences of being accused of racism (your reputation and career can be destroyed), you might as well call somebody a child molester. If it were up to me, I would give some credence to the intent of the folks making the accusation of racism before I dismiss it under the opinion doctrine. In many cases it is clear that the accusers want to do much more than express their “opinion” but rather to destroy and ruin those that disagree with them.

      healthguyfsu in reply to Milhouse. | August 17, 2023 at 1:31 pm

      Just to be clear, in your mind, no one can ever sue for defamation if defamed in the declarative as long as the defamer walks it back later as just their opinion? (and no retraction)

        Milhouse in reply to healthguyfsu. | August 17, 2023 at 8:58 pm

        Not at all. That’s what Alex Jones tried. If you make a factual statement that is both false and defamatory, that is actionable. But opinions are not factual statements, even if you declare them to be “facts”.

        “AOC is an idiot” is an opinion, not a fact. You and I and everyone here holds that opinion, but that doesn’t make it a fact. It’s inherently an opinion, and declaring it to be a fact won’t make it one. Ditto with “Al Sharpton is a racist”; whether someone is a racist is inherently a matter of opinion.

      caseoftheblues in reply to Milhouse. | August 20, 2023 at 9:03 am

      🌛🌜…. Really!?!… go back and reread the both sides of your mouth gobbledygook you posted

Defamation law and the applicable standard of proof are ripe for a wholesale reappraisal that makes it easier for plaintiffs to win lawsuits. The current bar for recovery is absurdly high and ultimately inequitable, allowing parties to slander victims with total impunity.

If the CTs refuse the aggrieved parties of defamation, libel or slander a fair opportunity to receive justice and clear their name in CT then what do they suppose might result from that? Do these judges anticipate that Congress should legalize dueling? That’s how these sorts of slurs were dealt with in the past prior to laws allowing civil suits. Before the code of dueling these things were handled far less formally with even greater violence.

If Congress or State Legislatures are reluctant to establish formalized duels as a mechanism of dispute resolution for slurs will the CTs endorse a private dispute resolution w/o benefit of legal sanction? Pressure requires an outlet or it builds up and eventually causes an explosion, if the CTs have seemingly decided that there can be no legal outlet then they are, unwittingly or not, creating the conditions for an explosion.

Steven Brizel | August 17, 2023 at 8:51 am

Given the long dissent, this case mnay very well be ripe for en banc review

It is particularly reprehensible when national media figures hurl slurs at a teenager. I’m disappointed in this court … but maybe not so surprised there is no justice for conservatives. No matter what their age.

Can anyone offer an assessment why the News Corporation d/b/a Fox News settled a defamation suit for an amount that grossly exceeded the value of the company when persons within Fox News were debating whether the publicly aired reports abut Dominion were supported by evidence or not.

This case should have been easier to win that the Sandman case because Fox News was reported on what others were claiming as true. Dominion could never prove that Fox News knew the allegations were false when there existed disagreement within Fox New about whether they were accurate.

    The statements about Dominion were factual statements, and they were false. Fox knew they were false. Nobody at Fox believed they were true.

    The issue in this case is whether there were false statements of fact, or merely opinions. In particular, did the news reports state as fact that Sandmann had blocked Phillips? Or did they merely say that Phillips had claimed so, without endorsing that claim? The majority found that the defendants did not endorse Phillips’s claim; the minority found that they had.

Maybe I missed it but does this mean that the original settlements Sandmann won are taken away?

    No, this is for the suits still out there.

    Milhouse in reply to Romynomask. | August 17, 2023 at 11:12 am

    No, settlements are settlements. Those cases settled, and they’re over. Nothing that happens now can change that.

    Milhouse in reply to Romynomask. | August 17, 2023 at 11:13 am

    Maybe those defendants are kicking themselves now for settling. Or maybe they actually did make false statements of fact, which would not have been dismissed. Or maybe they paid him so little that it was just not worth it for them to proceed to this point.

      MajorWood in reply to Milhouse. | August 19, 2023 at 12:23 pm

      I suspect that after the Gibson’s case and the damage caused by discovery that those who settled were lining up to do so.

The dissent is well written and makes sense.

The press reported Sandmann was moving around.

However, this is false.

The jury should see the video tape!

    Milhouse in reply to ParkRidgeIL. | August 17, 2023 at 9:01 pm

    The press reported Sandmann was moving around.

    That is precisely the issue. According to the majority, the defendants didn’t report that Sandmann was moving around. That’s why they dismissed the case. They agree that had the defendants said this the case would proceed.

2smartforlibs | August 17, 2023 at 12:56 pm

This isn’t why the propaganda machine got a carve-out in the Constituion.

The article should have noted that one of the prevailing judges (Stranch) was appointed by Obama, the other (Davis) by Slow Joe himself.

I recall some of the news coverage of this incident. In my opinion, the media did make factual claims concerning the encounter that definitely did paint Sandmann in a negative light and which can indeed be found to be objectively true or false. I think the dissent in this case is spot on and the majority opinion is flat out wrong. I’m so discouraged by judicial opinions that seem to be sophistry in the service of motivated reasoning.