A federal judge has dismissed a $250 million defamation lawsuit brought against the Washington Post by Nicholas Sandmann, the Kentucky teen who was accused falsely this year of harassing an elderly Native American protester in the nation’s capital.
It is a disappointing, but unsurprising, end to a particularly shameful episode of media malpractice.
The Washington Post and other newsrooms reported in January that a group of Covington Catholic high school students abused and taunted an elderly Native American, Nathan Phillips, after the March for Life in Washington, D.C. Sandmann, who got the brunt of online and media attention as he was the most visible of the teens, and his classmates did no such thing. Publicly available footage, which was available at the time the Washington Post and other newsrooms accused the teens of harassing Phillips, makes that abundantly clear. The paper itself quietly published a series of corrections (behind a paywall) in March admitting its initial coverage contained several errors.
Sandmann argued in a lawsuit he brought against the Washington Post in February that the “gist” of seven articles and three tweets it published after truncated footage of the supposed confrontation with Phillips went viral on social media was that he personally “assaulted” or “physically intimidated” the Native American protester and “engaged in racist conduct.”
U.S. District Judge William O. Bertelsman disagrees.
“This is not supported by the plain language in the article, which states none of those things … [The article] cannot be reasonably read as charging Sandmann with physically intimidating Phillips or committing the criminal offense of assault,” the judge wrote.
It is true the newspaper used words like “swarmed,” “taunting,” “disrespect,” “aggressive,” and “rambunctious,” Bertelsman noted. However, he added, “loose, figurative” or “rhetorical hyperbole” are protected forms of speech because they are not a statement of fact. They are opinion.
“Few principles of law are as well-established as the rule that statements of opinion are not actionable in libel actions,” Bertelsman writes, adding that the rule stems from the First Amendment’s guarantees of freedom of speech. “The statements that Sandmann challenges constitute protected opinions that may not form the basis for a defamation claim.” Further, the Eastern District of Kentucky judge argues in his ruling, the Washington Post is shielded from defamation claims because its articles and tweets did not name the Kentucky teen specifically.
Bertelsman’s ruling that Sandmann’s libel case failed to meet the standard for defamation should not come as a shock. Libel law is simple enough, but defamation cases are notoriously difficult to win precisely because, as the judge correctly notes, the United States has such strong free speech protections, particularly for opinion.
“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 impede or block anyone,” Bertelsman said in his ruling. However, he adds, the Washington Post’s recitation of Phillip’s false version of events “may have been erroneous, but … they are opinion protected by the First Amendment. And The Post is not liable for publishing these opinions.”
The Washington Post hailed the judge’s decision.
“We are pleased that the case has been dismissed,” a spokesperson said. “From our first story on this incident to our last, we sought to report fairly and accurately the facts that could be established from available evidence, the perspectives of all of the participants, and the comments of the responsible church and school official.”
I don’t know what they’re celebrating. Bertelsman’s ruling claims only that Sandmann’s lawsuit failed to clear the bar for defamation. The ruling does nothing to vindicate the paper’s slipshod, unethical handling of the Covington story.
The Washington Post is still guilty of reporting false information. It helped spread a hoax. It contributed indirectly to the vilification of minors. If the Washington Post sees Bertelsman’s ruling as a victory, I would hate to see what it considers a defeat.
