On Friday, a federal judge in Kentucky tossed Nicholas Sandmann’s defamation case against the Washington Post. Sandmann, the Covington Catholic student smeared by the Post and many other outlets earlier this year as a smirking, MAGA-hat-wearing racist who had blocked Native American elder Nathan Phillips’s path, promises an appeal.
On appeal, Sandmann is likely to win. I’ll lay out why, after a quick review of what happened.
What Happened in DC in January
After attending the March of Life in January of this year, Sandmann and his classmates waited for their bus at the Lincoln Memorial. While waiting, Native American activist Phillips marched into the group, beating a drum and singing. He stopped in front of Sandmann, where he continued to play for some time, until the students were called to their bus.
Later, a short clip of the incident began circulating on social media. It captured Phillips playing his drum and singing in the center of the group of Covington Catholic students. Phillips claimed the students had swarmed him as he attempted to make his way up to the Lincoln Memorial. Phillips’s fiction went viral, with Sandmann portrayed as a MAGA-hat-wearing racist. The Washington Post unquestioningly ran Phillips’s story and either linked to the video or referenced it in a series of articles on the incident.
It wasn’t until videos capturing the entire incident came out that the media realized it had been peddling fake news. The full video showed that Phillips had not attempted to make his way to the Lincoln Memorial, but had instead marched into the group of students and stood in front of Sandmann, beating his drum and singing. The Post and other outlets immediately issued mea culpas, but the damage had been done: Sandmann had been branded a smirking racist and rendered a subject of scorn throughout the country.
Soon after the truth came out, Sandmann sued the Washington Post (and others) for defamation. The Post filed a motion to dismiss the lawsuit, arguing that the articles it published did not constitute defamation as a matter of law. Judge William Bertelsman, a semi-retired Jimmy Carter appointee, agreed and tossed the case.
On Appeal, However, Sandmann Is Likely to Win
When Sandmann appeals, a three-judge panel of the Sixth Circuit Court of Appeals will consider his arguments. Given the procedural posture of this case—the motion to dismiss stage—Sandmann has solid grounds to argue for reversal.
That’s because at that stage, the court must read the facts in the light most favorable to Sandmann, and if a reasonable jury could interpret the Post’s statements as defamatory, the court must allow the case to continue. An analysis of Judge Bertelsman’s opinion indicates that he overstepped his bounds in several areas and resolved factual disputes that should have been left for a jury to decide.
Bertelsman’s opinion began with a summary of the controlling law. In Sandmann’s case, Kentucky law on defamation, in essence, requires him to prove the Post: 1) made a false and defamatory statement concerning him; 2) published the statement; 3) acted negligently; 4) and either caused him damages or exposed him to “public hatred, ridicule, contempt, aversion, or disgrace.”
The first area ripe for reversal is Judge Bertelsman’s conclusion that the Post’s articles were not statements “concerning” Sandmann because they referenced the group of students or did not include a name or picture of Sandmann. But, as Sandmann’s attorneys point out, every article included either a link to the viral video of Sandman or a reference to it. And Sandmann was the “face” of those videos.
While Kentucky defamation law requires the court to consider whether a statement is defamatory from the four corners of the publication, the question is whether the words used “refer to some ascertained or ascertainable person.” In this age of internet links and viral videos, an appellate court could easily conclude that a jury should decide whether the Post’s links or references to the video, along with the statements included in the articles, was sufficient to show the statements concerned Sandmann.
Was the Post’s Description of Sandmann Accurate?
Judge Bertelsman’s analysis of the Posts’ statements, and his conclusion that they were not factual, will be a second area challenged on appeal. In his 30-plus-page opinion, Bertelsman identified every statement in the Post’s coverage of Sandmann that the young high school student had challenged. The judge then considered whether the statement constituted a fact that could be proven “objectively incorrect.”
In each instance, the long-time federal judge concluded the statements were merely matters of opinion, including the Post’s reporting that the students (with Sandmann the face of the story, as noted above), “surrounded,” “swarmed,” “blocked,” “taunted,” “disrespected,” “confronted,” “accosted,” and “physically intimidated” Phillips.
On appeal, Sandmann’s attorneys are likely to focus on three points—all of which justify reversal. First, at the motion to dismiss stage, the question is whether a reasonable jury could conclude the statements were of fact and not opinion. Second, and relatedly, the common understanding of these words are all a matter of fact, and the videos prove they are false facts. Third, the Post’s editorial correction confirms that the newspaper was reporting “facts” and not opinions concerning the encounter.
Here’s what the Post wrote when the truth came out: “Subsequent reporting and video evidence contradicted or failed to corroborate that one of the activists was accosted and prevented from moving, that they had been taunted by the students in the lead-up to the counter, that the students were trying to instigate a conflict.”
If the Judge Is Right, All News Is Mere Opinion
Here, there is a great irony to the judge’s decision. His analysis of the reporting rendered virtually every statement concerning the incident mere opinion. Judge Bertelsman even went so far as to declare The Washington Post’s reporting “rhetoric” and “hyperbole” when analyzing this passage:
Friday’s incident near the Lincoln Memorial in which a group of high school boys confronted an elderly Native American man sent a ripple of fear and anger across the country. 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 resurfaced tensions that have been simmering since president Trump’s campaign began.
He also found the Post’s headline, “Marcher’s accost [sic] by boys in MAGA caps draws ire,” as “laden with rhetorical hyperbole,” and not actionable.
Bertelsman is half-right. The Post and every other major media outlet now resort to rhetoric and hyperbole in reporting on all things Trump and conservative, such as the March for Life. And they regularly peddle opinion as fact. But the Post’s coverage of the encounter between Sandmann and Phillips, and the passages above, reported false facts. Those false facts subjected Sandmann to “public hatred, ridicule, contempt, aversion, or disgrace,” eliminating the need under Kentucky law to show the defamatory statements caused damages.
Bertelsman concluded otherwise, and found that the statements were not even defamatory. Here, the appellate court will likely find the lower-court judge overstepped his bounds and conclude that it is for a jury to decide whether the Post’s reporting was defamatory and subjected Sandmann to public ostracization.
It could be as much as a year before Sandmann’s appeal is briefed, argued, and decided. If Sandmann wins on appeal, his case will return to the lower court for a trial.
If Sandmann loses his appeal, the consequences will be direr than his personal defeat. As his father, Ted Sandmann said following Friday’s ruling, “I believe fighting for justice for my son and family is of vital national importance. If what was done to Nicholas is not legally actionable, then no one is safe.”
The senior Sandmann is correct. A defeat would sound the death knell to the last remaining check on a profession that has abandoned all pretense of serious, unbiased, and fact-based reporting since Donald Trump entered the political arena—defamation law.