It is back on.
A federal judge is revisiting Nicholas Sandmann’s $250 million defamation lawsuit against the Washington Post, which was brought against the newspaper after it falsely accused the Covington Catholic high school student in January of harassing an elderly Native American protester in Washington, D.C.
“Judge William Bertelsman of the U.S. District Court in Eastern Kentucky, who initially dismissed the case in late July on the grounds the paper’s reporting was protected by the First Amendment, reinstated the case on Monday,” the Washington Examiner’s Jerry Dunleavy reports.
Bertelsman will allow exactly 3 of Sandmann’s 33 claims to move to discovery.
In July, when Bertelsman initially dismissed Sandmann’s case, I wrote that it was a disappointing but unsurprising conclusion to the Kentucky teen’s lawsuit. After all, libel law is simple enough, but defamation cases are notoriously difficult to win precisely because of the United States’ robust free speech protections. This is all true. Sandmann’s chances for a win are extremely slim.
However, these latest developments show that perhaps the teen’s case against the Washington Post is not so far-fetched after all, at least not to Bertelsman.
“The Court will adhere to its previous rulings as they pertain to these statements except Statements 10, 11, and 33, to the extent that these three statements state that plaintiff ‘blocked’ Nathan Phillips and ‘would not allow him to retreat,’” the federal judge explains in his decision partially reversing his earlier dismissal.
He adds, “Suffice to say that the Court has given this matter careful review and concludes that ‘justice requires’ that discovery be had regarding these statements and their context. The Court will then consider them anew on summary judgment.”
The Washington Post and other newsrooms reported in January that a group of Covington Catholic high school students “swarmed” Nathan Phillips, abusing him with racial taunts and jeers. Sandmann and his classmates did nothing even close to what reporters claimed, as publicly available footage of the events in question made clear. The Washington Post published a series of corrections (behind a paywall) in March admitting its initial coverage had been erroneous.
Sandmann’s attorneys argued in their original complaint that the “gist” of seven articles and three tweets published by the Washington Post after truncated footage of the supposed confrontation went viral was that their client personally “assaulted” or “physically intimidated” the Native American protester and “engaged in racist conduct.”
Though Bertelsman disagreed in July with their characterization of the Washington Post’s original coverage of the Phillips incident, the judge is open now to revisiting additional details added to Sandmann’s original complaint, particularly the part where the Kentucky teen’s attorneys rightly note that Phillips’ penchant for fabrications and confrontations could have been known by the Washington Post had it done even a little digging and not relied entirely on his say-so.
Sandmann’s lawyers maintain in the amended version of their complaint, which was released Monday, that the Washington Post “wrongfully targeted and bullied Nicholas because he was a white, Catholic student wearing a red ‘Make America Great Again’ souvenir cap on a school field trip to the January 18 March for Life in Washington, D.C. when he was unexpectedly and suddenly confronted by Nathan Phillips, a known Native American activist, who beat a drum and sang loudly within inches of Nicholas’ face.”
They add, “The Post knew, or should have known by exercising the slightest diligence, that Phillips was not a trustworthy witness and that it would be negligent to republish Phillips’ narrative of the January 18 incident without a proper investigation.”
Sandmann has an uphill battle to fight given our free speech protections. I am inclined to believe his lawsuit will ultimately go nowhere, but I did not anticipate this latest development from Bertelsman, either. I guess we will have to wait and see.
