Approximately five months after it was filed, a $250 million defamation suit against the Washington Post was dismissed. The opinion and order dismissing the case are available online.
The plaintiff, Nicholas Sandmann, was part of a group of high school students who wore “Make America Great Again” hats at a March for Life Rally in D.C. in January 2019. Sandmann was captured in a viral video that appeared to show a tense interaction between Sandmann and a Native American activist, Nathan Phillips, near the Lincoln Memorial. Major news outlets, including the Washington Post, ran stories about the events and video.
According to his lawsuit, Sandmann alleged he was subjected to cyber-bullying and scorn on social media in the wake of the coverage of the events. He accused the Post of engaging in “a modern-day form of McCarthyism” (Complaint at ¶ 1) when, through its stories, “the Post conveyed that Nicholas engaged in acts of racism” (Complaint at ¶ 7) during his interaction with Phillips.
The Complaint alleged the Post falsely accused Sandmann of “instigating the January 18 incident” (Complaint at ¶ 7) and “ignored basic journalistic standards because it wanted to advance its well-known and easily documented agenda against President Donald J. Trump.” Complaint at ¶ 8.
The U.S. District Court for the Eastern District of Kentucky applied Kentucky’s defamation law in analyzing the claims and noted the Court was not required “to address the elements of [a defamation claim] of truth/falsity, publication (which is not disputed), or negligence.” Opinion at 7. Instead, the Court noted “[a]t issue are only whether the statements are about Sandmann, whether they are fact or opinion, and whether they are defamatory.” Opinion at 7.
The Court analyzed “seven articles and three Tweets” that contained “thirty-three statements that Sandmann alleges are defamatory.” Opinion at 13.
The Court found that across the articles and tweets, many of the statements were not about Sandmann. Some of the statements did not use Sandmann’s name or contain any “identifiable description of him” or picture of him in the articles. Opinion at 13. Rather, many statements were about a broader group of individuals.
Some of those statements and others also were not actionable because the Court found the statements were not capable of defamatory meaning, even if they were about Sandmann. Rather, the statements were “examples of ‘loose, figurative,’ ‘rhetorical hyperbole’ that is protected by the First Amendment because it is not ‘susceptible of bring proved true or false.’” Opinion at 16, citing Milkovich v. Lorain Journal Co., 497 U.S. 1, 21 (1990); Seaton v. TripAdvisor LLC, 728 F.3d 592, 597 (6th Cir. 2013).
If statements do not “state or imply actual, objectively verifiable facts,” they are not actionable. Opinion at 16 (citations omitted).
The Court reasoned that the affirmative defenses the Post asserted, in particular, the “opinion” defense, protected the Post’s articles about Sandmann, even if some of the characterizations were “erroneous.” Affirmative defenses, the Court explained, “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.” Opinion at 28.
Ultimately, the Court found “Sandmann cannot maintain a claim based on any of the Post’s publications.” Opinion at 27.
Sandmann’s attorneys had seemed confident he would prevail because they believed the claim would be subject to the lower negligence standard for defamation claims. Sandmann, they argued, was a private figure and should not have to prove that the Post knew its statements were false when it published them. Instead, they argued Sandmann should only have to prove the Post was negligent. Even under the lower standard, however, Sandmann’s claims failed.
The Court dismissed the Complaint with prejudice, precluding Sandmann from attempting to reframe the complaint and re-file the suit against the Post.
Sandmann filed similar lawsuits against other media outlets, including CNN, but those cases have not been decided yet.
By Alexandra Tracy-Ramirez, HopkinsWay PLLC. | © HopkinsWay PLLC 2019. All rights reserved.