As Expected: Covington HS Teen's Lawsuit Against The Washington Post Is Dismissed
from the with-prejudice dept
This was not unexpected. As we easily predicted back when it was filed, Nick Sandmann — the MAGA red hat wearing teenager from Covington Catholic High School who was briefly at the center of a viral social media Rorschach test — has now lost his laughably bad defamation lawsuit against the Washington Post. As we pointed out, he never alleged any actual defamation, and federal Judge William Bertelsman did not seem at all pleased with Sandmann’s legal arguments.
As Bertelsman notes, at this stage (the motion to dismiss stage), all he needs to do is see whether or not an actual claim has been presented: were statements of fact made about Sandmann that were defamatory. There’s plenty of explanatory text before we get to the crux:
… the statements that Sandmann challenges constitute protected opinions that may not form the basis for a defamation claim.
That’s it. That’s really all that matters here. The court goes into some more details to explain this, even though it’s barely even necessary. However, as an example:
First, statements 1-3, 10, 13, 16, 17 are not actionable because they do not state or imply “actual, objectively verifiable facts.”…
Instead, these statements contain terms such as “ugly,” “swarmed,” “taunting,” “disrespect,” “ignored,” “aggressive,” “physically,” and “rambunctious.” These are all examples of “loose, figurative,” “rhetorical hyperbole” that is protected by the First Amendment because it is not “susceptible of being proved true or false.”
This is the crux of basically all defamation law and why this case was going to lose from the beginning.
The above terms are also “inherently subjective,” like “dirtiest”… or “squandered” and “broke,” … all of which are “not so definite or precise as to be branded as false.”
There’s a lot more along those lines, highlighting how you can’t just take vaguely negative statements implying something and declare them defamatory. From there, it gets even worse. The judge notes that even if these were negative statements about Sandmann “there is no allegation of special damages,” which dooms the case a second time. The court also calls out Sandmann’s legal claims as overstating (by a lot) what the Washington Post actually did.
Finally, the article does not state that Sandmann “engaged in racist taunts.” The article makes vague reference to teens and other participants “taunting” the “indigenous crowd” and them merely states that “[a] few people . . . began to chant build that wall,” a political statement on an issue of public debate and often associated with party affiliation. This is not defamatory.
Even if false, attributing to an individual “membership in a political party in the United States that is a mainstream party and not at odds with the fundamental social order is not defamatory.”
And thus, the case is dismissed, with prejudice.
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.
However, Phillips did not see it that way. He concluded that he was being “blocked” and not allowed to “retreat.” He passed these conclusions on to the Post. They may have been erroneous, but, as discussed above, they are opinion protected by the First Amendment. And the Post is not liabile for publishing these opinions, for the reasons discussed in this Opinion.
We see so many of these lawsuits these days, where people insist that saying something that you don’t like is somehow defamatory. That’s not how it works. Of course, it would have been nice if Kentucky had an anti-SLAPP law (it has none) or if there were a federal anti-SLAPP law (there is not) to discourage this kind of frivolous, free speech chilling, lawsuit.