I hate to throw cold water on all your hopes and expectations, but a federal judge ruling this week that Nicholas Sandmann’s $275 million libel lawsuit against NBCUniversal can move forward on limited grounds does not increase the likelihood that the aggrieved Kentucky teen will win his case.
In fact, the Covington Catholic High School student’s suit against NBC stands about as good of a chance of winning as does his case against the Washington Post, which is to say it does not stand much of a chance at all.
Welcome to the United States. We have vigorous free speech protections.
U.S. District Court Judge William Bertelsman this week threw out parts of Sandmann’s case against NBC, while also allowing for discovery on the specific allegation that the news network defamed the Covington teen when it alleged he had “blocked” an elderly Native American protester during a Jan. 18 confrontation in front of the Lincoln Memorial.
NBC and others reported initially that a group of Covington, Kentucky, students, including Sandmann, who endured the worst of the negative news coverage and commentary, swarmed the protester Nathan Phillips, abusing him with racial slurs and jeers. The high school students did nothing of the sort, as publicly available footage of the incident made clear.
If NBC’s coverage of Sandmann’s interaction with Phillips proves to be false, specifically the part where the network alleged the teenager “blocked” Phillips and “did not allow” the Native American activist “to retreat,” then it is indeed guilty of libel, according to Bertelsman’s order.
Kentucky law defines defamatory language as that which brings an individual into “public hatred, contempt or ridicule,” or causes said individual to be “shunned or avoided,” the order notes, adding that Sandmann’s complaint alleges that this “is exactly what occurred to the plaintiff.”
The ruling this week “identifies a clear path to liability for the media defendants,” Sandmann’s attorney Todd V. McMurtry told the Washington Times.
“If we prove Nathan Phillips lied, it is defamation per se,” the attorney said. “Then, all we have to do is prove that the media negligently republished those defamatory statements.”
Another attorney for Sandmann, Lin Wood, cheered Bertelsman’s ruling, saying on social media: “As predicted, today Judge Bertelsman entered an order allowing the Nicholas Sandmann case against NBCUniversal to proceed to discovery just as he had earlier ruled with respect to WaPo & CNN cases. Huge, huge win!”
As predicted, today Judge Bertelsman entered an order allowing the Nicholas Sandmann case against NBCUniversal to proceed to discovery just as he had earlier ruled with respect to WaPo & CNN cases. Huge, huge win!
— Lin Wood (@LLinWood) November 21, 2019
Indeed, the name Bertelsman should sound familiar. He is the same judge who, in October, reinstated an amended version of Sandmann’s $250 million defamation lawsuit against the Washington Post, reversing an earlier decision to dismiss the case entirely.
But don’t get too excited. Although these decisions trend in Sandmann’s favor, it is still unlikely the Kentucky teen will win his cases against the offending newsrooms. As I have written before, “libel law is simple enough, but defamation cases are notoriously difficult to win precisely because of the United States’ robust free speech protections.”
If I were a betting man, I would bet against Sandmann’s chances of winning against NBC, the Washington Post, and others. It is too much of an uphill battle to prove a newsroom’s intent to defame. Still, if nothing else, this entire exercise may at least be cathartic for the Covington teen, watching the newsrooms that smeared him as a racist sweat it out a little.
