After years of politically charged litigation, former Covington Catholic High School student Nick Sandmann on Tuesday lost a round of high-profile defamation lawsuits against five mainstream media companies at the summary judgment stage. That’s according to court dockets and an opinion and order signed by a federal judge in the Eastern District of Kentucky.
Sandmann’s cases against ABC News, Rolling Stone magazine, CBS News, newspaper and television station owner Gannett, and The New York Times are now officially listed as “terminated” on the court record.
Sandmann sued the five organizations in question — and a few others, including CNN and NBC — on March 2, 2020. The lawsuits alleged that various articles and broadcasts defamed Sandmann by characterizing his actions toward Nathan Phillips, a Native American activist, on Jan. 18, 2019 in Washington, D.C., as nefarious. From Sandmann’s original lawsuit against ABC:
ABC’s reporting conveyed the false and defamatory charges that Nicholas “stood in [Phillips’] way,” “blocked [Phillips’] way and wouldn’t allow [Phillips] to retreat,” and that Nicholas “wouldn’t let [Phillips’] move,” while a mass of other young white boys “swarm[ed],” taunted, jeered and physically intimidated Phillips.
ABC’s reporting conveyed, among other things, the false and defamatory gist that Nicholas was the face of an unruly hate mob of hundreds of white, racist high school students who physically assaulted and harassed Native Americans who were engaged in peaceful demonstrations, song and prayer at the National Mall.
[ . . . ]
ABC accused Nicholas of behavior constituting menacing racial intimidation of Phillips, a Native American political activist, while Phillips was purportedly engaged in peaceful song and prayer at the Lincoln Memorial.
Sandmann’s ABC lawsuit characterized the “truth” of the matter as follows:
ABC’s accusations against Nicholas are totally, provably, and unequivocally false.
The truth is that, after the Indigenous Peoples March was over, Phillips approached Nicholas and the other students from afar, bypassed wide open steps to his alleged destination of the Lincoln Memorial, specifically confronted Nicholas, and never attempted to move past, around, or away from Nicholas, as Nicholas stood quietly for several minutes in a “Make America Great Again” hat while Phillips beat a drum and sang loudly within inches of Nicholas’ face.
The truth is that, at the time of the confrontation by Phillips, Nicholas and his classmates from Covington Catholic High School (the “CovCath students”) were assembled on the stairs of the Lincoln Memorial at the direction of their chaperones for buses that would take them home to Northern Kentucky.
The truth is that, Nicholas and his CovCath classmates were bullied, attacked, and confronted with racist and homophobic slurs and threats of violence by the Black Hebrew Israelites, a recognized hate group, before being unexpectedly confronted without explanation by Phillips, an activist, who proceeded to target Nicholas while chanting and beating a drum inches from his face and being flanked by activist companions filming the event in the hopes of capturing a viral sensation that would be used to advance, via social media, an ulterior political agenda.
Phillips specifically targeted Nicholas and placed himself directly in front of Nicholas.
All parties moved for various forms of summary judgment, and a judge agreed to dismiss the cases by agreeing with the five media defendants and disagreeing with Sandmann’s attorneys. Senior U.S. District Judge William O. Bertelsman, a Jimmy Carter appointee, explained the procedural machinations afoot:
The cases are now before the Court on motions filed in all five pending cases: plaintiff’s motions for partial summary judgment on the issue of falsity; defendants’ joint motion for summary judgment; defendants’ supplemental memoranda in support of summary judgment; and defendants’ motions to strike.
Summary judgment is a procedural mechanism which resolves cases without a trial.
Bertelsman noted that CNN “filed an early motion to dismiss which the Court granted” on July 26, 2019.
“In that opinion, the Court held that none of the statements were actionable for various reasons: some were not ‘about’ Sandmann; some were statements of opinion; and/or some were not subject to a defamatory meaning,” Bertelsman recalled.
In other words, the case more or less flatlined once before. Sandmann filed a motion to reconsider; the judge agreed to resuscitate the matter on “narrow” grounds. At issue in the resurrected case were “Phillips’s statements that Sandmann had ‘blocked’ Phillips and ‘would not allow him to retreat,'” the judge wrote.
“[J]ustice required that discovery be conducted as to the context of those statements,” the judge recalled.
CNN settled with Sandmann in January 2020; NBC settled in December 2021. Those settlements left the five remaining aforementioned defendants; what followed was a round of discovery as to the five remaining cases.
Bertelsman noted that “the only evidence filed in the record consists of: (1) Sandmann’s deposition; (2) a declaration under oath by Phillips; (3) seven declarations under oath by persons in attendance at the incident; and (4) a collection of video recordings taken at the National Mall that day.”
“Although lengthy, Sandmann’s deposition contains relatively little testimony pertinent to the issues at hand,” Bertelsman opined.
A little more than a page of bullet points recapped what the judge considered the salient points of that deposition; among them were the following:
- Sandmann observed as Phillips moved toward and then through the group of students. Some students moved out of Phillips’s way as he walked forward. Sandmann felt that Phillips was trying to intimidate the students by walking right up to them when he could have taken several other routes around them, so Sandmann felt like he wanted to stand up for his school. At the time, he did not know that Phillips’s intent was to get up to the Lincoln Memorial;
- Phillips stood so close to Sandmann that his drum touched Sandmann’s shoulder, his spit was getting on Sandmann’s face, and Sandmann could smell Phillips’s breath;
- The steps were icy and Sandmann was concerned that if he moved he might slip and fall.
- Sandmann felt he was being mature by remaining calm and standing his ground in a tense situation;
- Sandmann can see how Phillips might have perceived that Sandmann was trying to block his path;
- There was room for Phillips to keep walking if that is what he wanted to do. Sandmann did not feel that he was blocking Phillips because Phillips gave no indication that he wanted to move forward. Instead, he locked eyes with Sandmann when he was still several feet away from him and then “planted” himself directly in front of Sandmann. Phillips did not take even the slightest step in any direction in an attempt to move;
- Sandmann is not sure if he moved a little to the left as Phillips approached; he either adjusted his footing and/or the people around him shifted as well;
- At one point, Sandmann felt that he was blocked from moving because of the crowd around him, although he has no reason to believe that they would not have moved if he had asked them to do so.
A declaration from Phillips provided the following details, the judge wrote:
- As he approached the students, Phillips “felt that the crowd was swarming and surrounding me;”
- As Phillips began to move towards the Lincoln Memorial, students moved out of his way. However, Sandmann “appeared” to position himself in front of Phillips;
- Phillips declares: “It was very much my experience that Mr. Sandmann was blocking me from exiting the situation. It was very much my experience that he intentionally stood in my way in order to stop me from moving forward;”
- Further: “I felt surrounded in that space, and I believed Mr. Sandmann did not want to let me pass. It seemed to me that Mr. Sandmann felt that he needed to stand there and block my way.”
A group of six other witnesses declared that Phillips moved toward Sandmann, according to the judge. Those six witnesses were in Washington, D.C., to attend the Indigenous Peoples March which attracted Phillips, the order attests; only one previously knew Phillips, Bertelsman indicated.
“Five of the six individuals aver that it was their impression that Sandmann blocked Phillips from moving forward,” the judge noted.
The final witness, a classmate of Sandmann’s, “moved away from the group at the time of the encounter between Sandmann and Phillips and did not observe it directly,” the judge wrote.
Twenty videos were submitted into evidence; only six were “helpful,” Bertelsman said.
“What a viewer might conclude from these videos is a matter of perspective,” Bertelsman wrote. However, the judge opined that the following was “clearly” depicted:
- Phillips began drumming and approaching the group of students, accompanied by several individuals who testify that, although they did not know Phillips, they followed him because he was an elder;
- As Phillips came close to the group of students, some began to part, and Phillips continued to move forward. Eventually, Phillips came to a stop directly in front of Sandmann. As Phillips approached, Sandmann subtly adjusted his footing, but it is unclear if he actually moved from where he stood.
- At no point did Phillips ask Sandmann to move or attempt to continue walking past him.
- Sandmann also did not change his position while Phillips played his drum, although it was within inches of Sandmann’s face.
- The encounter ended when a chaperone arrived and told the students that their buses had arrived.
In analyzing the remaining legal issues, Bertelsman said some of Sandmann’s legal arguments were “without merit.”
“As noted above, the Court expressly held that while the allegations of Sandmann’s complaints passed the ‘plausibility’ test at the pleading stage, and that discovery should be had on the context of Phillips’s statements, the actionability of the statements would be revisited on summary judgment,” Bertelsman wrote. “Sandmann’s insistence that the Court cannot now revisit this legal issue is ironic considering that he vigorously, and successfully, moved the Court to reconsider its initial ruling in The [Washington] Post case” (italics added).
“In sum, the law of the case doctrine does not preclude this Court from reconsidering anew on summary judgment legal issues raised at the pleading stage,” Bertelsman concluded.
In other words, in light of the terse discovery, Sandmann’s claim failed.
Specifically, as to the claim that Sandmann “blocked” Phillips from advancing, Bertelsman ruled as follows:
Applying the above legal authorities, and with the benefit of a more developed record, the Court concludes that Phillips’s statements that Sandmann “blocked” him and “wouldn’t allow [him] to retreat” are objectively unverifiable and thus unactionable opinions.
Instead, a reasonable reader would understand that Phillips was simply conveying his view of the situation. And because the reader knew from the articles that this encounter occurred at the foot of the Lincoln Memorial, he or she would know that the confrontation occurred in an expansive area such that it would be difficult to know what might constitute “blocking” another person in that setting.
Judge Bertelsman then criticized Sandmann’s lawyers for arguing a premise that the evidence doesn’t support:
Interestingly, plaintiff’s responsive memorandum to the joint motion for summary judgment argues that “blocking” is factual because “it involves the oppositional position of two human bodies in a confined space.” (Case No. 20cv23, Doc. 61 at 42) (emphasis added). But, as the videos depict, the area where this encounter occurred was a huge, outdoor setting, not a confined space.
Thus that argument failed.
Later, Bertelsman suggested that the press did little more than to report Philips’ version of the events. Phillips’ version of the events were opinions, not facts, the judge concluded.
“The media defendants were covering a matter of great public interest, and they reported Phillips’s first-person view of what he experienced,” the judge wrote. “This would put the reader on notice that Phillips was simply giving his perspective on the incident.”
“Therefore, in the factual context of this case, Phillips’s ‘blocking’ statements are protected opinions,” Bertelsman rationed. “This holding moots all other motions before the Court.”
The judge then penned a few lines in conclusion:
The Court allowed these cases to proceed to discovery based on the allegations of plaintiff’s complaints and a belief that some development of the context of this incident may be helpful. The parties shrewdly agreed to phased discovery allowing the above legal issues to be revisited by the Court before the parties embarked on further expensive and time-consuming discovery and possibly trials, all of which would be wasted should the United States Court of Appeals for the Sixth Circuit agree with this Opinion.
And finally, the Court has reached its conclusions with fealty to the law as its primary concern, with no consideration of the rancorous political debate associated with these cases.
Law&Crime asked attorney Todd VanDerVeer McMurtry, who represents Sandmann along with attorneys Jeffrey Allen Standen and John William Huber, for comment.
“We are disappointed with the decision,” McMurty told Law&Crime. “We intend to appeal.”
Read the full opinion and order here:
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