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.

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Comments on “As Expected: Covington HS Teen's Lawsuit Against The Washington Post Is Dismissed”

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Gary (profile) says:

Re: Re:

The suit was dismissed – with prejudice. So any further suits would be frowned upon. (They could file a completely different suit, but the new judge will look at this case.)
The article includes quotes from people who were actually on the scene who backed up the article. So the coverage wasn’t as biased as you are making it out.

Of course the kids were bused in to slut-shame pregnant women so we know their motives were pure.

Anonymous Coward says:

Re: Re:

It was DISGUSTING what these Leftist so-called News channels did.

Perhaps you can go on twitter and whine with the "president" about it. I mean, that’s all you guys do, right? Whine? You don’t do anything, but you’ve sure got the whining down pat.

Poor, poor, over privileged white kids. When will they ever catch a break?

Anonymous Coward (profile) says:

Is this a premature decision?

My argument here is poached from Viva Frie, who does a much better job of explaining the potential issues with this dismissal. The main crux of the argument is that when there’s a dismissal, there’s no evidence. Dismissals are based solely on agreed upon facts of the case. This dismissal, however, appears to be based on what should have been admitted as evidence.

The decision seems to hinge on evidence that had not yet been adduced. For example, as you note above, the court cites how Phillips felt during the incident, but it’s not like the court is basing that on any sort of testimony given by Phillips. The court also seems to be overextending its dismissal of the language that’s used; I don’t think it’s outside the realm of possibility that the court might be able to determine whether someone is being "swarmed" by a crowd, just as the court seems to be perfectly fine with accepting that Phillips felt like he was "blocked" by Sandmann. Likewise I don’t think it’s necessarily outside the realm of possibility that a court could come up with reasonable thresholds for what might constitute "taunting" or "aggressive." Or maybe the judge is right and the court can’t figure that out. To be fair, I do agree that these are terms that are not easily defined and are therefore matters of opinion, but the point is that determination ought to have made in court after reviewing the evidence.

TKnarr (profile) says:

Re: Is this a premature decision?

The evidence was adduced in the Post article itself. Phillips stated what he felt at that time, and it’s not within the court’s purview to say he didn’t really feel that way. Whether his feelings were reasonable might be something the court could rule on, but for defamation that’s irrelevant. If your feeling is completely irrational and unreasonable you’re still entitled to say you felt that way and your statement of how you felt can’t be defamatory to the other party.

Note that saying how you felt is something different from falsely saying the other party did some specific thing to make you feel that way, but Sandmann couldn’t point to anything Phillips said he did that he didn’t clearly do.

Thad (profile) says:

Re: Is this a premature decision?

My argument here is poached from Viva Frie, who does a much better job of explaining the potential issues with this dismissal. The main crux of the argument is that when there’s a dismissal, there’s no evidence.

Or no accusation of anything illegal.

If I sue you for putting a funny hat on your dog, my suit is going to be dismissed. Even if I have 100% ironclad proof that you put a funny hat on your dog. Because putting funny hats on dogs is not actually illegal. The evidence doesn’t matter if the thing I am accusing you of is not illegal. I can refer to putting a funny hat on your dog as "arson" if I want, but that’s not the legal definition of arson.

Similarly, if I were to say "Nick Sandmann is a big stupid doodoo head," and Nick Sandmann were to sue me for defamation, that suit would be dismissed. Because even if I did say that about him, calling someone a big stupid doodoo head is not defamatory.

Which is more or less what happened here. The judge determined that even if 100% of the accusations in the lawsuit were 100% true, none of them broke any laws.

There’s no need to make any determinations about evidence if the plaintiff is accusing the defendant of doing things that are legal. The judge doesn’t need to go to trial and put my photos of you putting a funny hat on your dog before a jury, so they can evaluate whether or not you really put that funny hat on your dog, thereby committing arson. The judge can just say "that’s not what ‘arson’ means" and dismiss the case. At that point, whether or not I can prove you put a funny hat on your dog is irrelevant.

Anonymous Coward says:

Re: Re: Re: Have you tried digging up bro?

You really want to go there? Ok we can go there. They did spend years however downplaying the cold hard facts, the many of Donnie’s inner circle were/are in bed literally and figuratively with known Putin operatives. I mean it’s not like several of his people had to recuse themselves or went to jail for lying about working with the Russians. And just remember the whole Fusion GPS thing was originally paid for by GOP operatives and Mueller is a lifelong republican. So apparently “fake” means facts that you don’t. Shit you’re probably dumb enough to still buy into all that birther garbage.

Stephen T. Stone (profile) says:

Re: Re: Re:2 Quoting at length from The Weekly Sift:

From the beginning of the Trump/Russia investigation, I’ve had two questions about the Trump campaign and Trump transition team:

  • Why did Trump’s people have so many interactions with Russian officials, Russian oligarchs, and other people connected to Vladimir Putin?
  • When they were asked about those interactions, why did they all lie?

Those two questions have formed my standard of judgment ever since: If I ever felt like I could confidently answer them, I would believe we had gotten to the bottom of things.

I don’t think we have good answers to those questions even now.

I can imagine a relatively innocent answer for the first one: The Russians were trying to infiltrate the campaign, so they repeatedly contacted Trump’s people. But that answer just makes the second question more difficult, because then Trump’s people could have given perfectly innocent answers, like: “I wondered about that at the time. It seemed so weird that these Russians kept wanting to talk to me.” It would have been so easy to say: “Yeah, I talked to the guy, but I never figured out exactly what he wanted. I had a bad feeling about it, though, so I didn’t see him again.” Instead, they either made false denials, manufactured false cover stories, or developed a convenient amnesia around all things Russian.

Why? Innocent people don’t act that way.

Trump and his defenders have not offered an answer of any kind about the lying, and instead have done everything possible to distract us the question. All the wild conspiracy theories about the Steele dossier, the “angry Democrats” in Mueller’s office, Mueller’s supposed “conflicts”, the “witch hunt”, and so forth — it all has nothing to do with the two basic questions: Why meet with so many Russians? Why lie about it?

We still don’t know.

[…] One reason we don’t know more about those questions is that President Trump obstructed the investigation. This is pretty clear if you read the Mueller report: Volume 2 examines ten instances that might be obstruction, and finds all three elements of the definition of obstruction in seven of them.


Johnny Colburn says:

Leftist article

As usual techdirt takes the defense of a leftish Jimmy Carter appointed judge then admitting the truth. This is why the right as to go to the source and start dealing with reporters like some of the garbage that lying techdirt writes. Anti police, anti family, anti gun, that is leftdirt. Silicon Valley funded.

Stephen T. Stone (profile) says:


the right [has] to go to the source

The Washington Post did go to the source, though — the source being Nathan Phillips, who described to WaPo how he felt that day during the standoff with Nick Sandmann. Everything Phillips said to WaPo was his opinion of what happened, not WaPo’s. WaPo can’t be considered “guilty” of defamation if it didn’t defame anyone, and Phillips’s statements were protected opinion that WaPo reprinted and attributed to him.

Whether you agree with Phillips or side with Sandmann is irrelevant to the matter. The court ruled, correctly, that WaPo didn’t print a goddamn thing that could count as defamatory in this case. If you can explain how any part of the court’s ruling that could (or should) be overturned on appeal, I would sure as shit love to see you pull off that magic trick.

Gary says:

Re: Leftist article

This is why the right as to go to the source and start dealing with reporters like some of the garbage

Yes, we understand that Putin is in bed with Trump, who wants to jail/kill his critics like Putin does. No bad news if there is no news, right?

Why do Trumnpers get their diapers in such a bunch so badly that they have to start threatening free speech the moment someone starts fact-checking?

Anonymous Coward says:

Re: Leftist article

As usual techdirt takes the defense of a leftish

As usual, trolls will come trolling and can’t refute the facts of the article but come in and pull some stupid political team argument instead and insist that the Judge is wrong as he was appointed by somebody on the wrong team.

That One Guy (profile) says:

Re: Re: They could at least come up with new school-yard insults...

When the law is on your side, pound on the law.

When the facts are on your side, pound on the facts.

When neither the law or the facts are on your side, make childish, tribalistic accusations/insults and hope that that distracts from how you’ve got no credible counter-argument.

John Carroll says:



Anonymous Coward says:

Re: Why don’t you go back with “those” people

Sir, I’m sorry but I’m going to have to ask you not to use the CAPS LOCK key as we can’t understand what you are trying to say. Perhaps you would be better off back at infowars as you don’t seem to have the social skills we require of below average twelve year old.

Anonymous Coward says:

Re: Re:

Infowars reported on NSA spying way before techdirt did

As far as I’m aware they didn’t, actually. I’m not able to find any stories from them on it before the Snowden leaks.

And even if they did, it wouldn’t have been because they had actual evidence of that or actually thought it was really going on. They just made it up out of thin air because it made for a good conspiracy theory story, which is what the entire site is about.

If you make up enough crap, eventually something will resemble something in real life.

why people heard of infowars but NEVER HEARD OF TECHDIRT

Lots of people have heard of TD. More people have heard of Alex Jones and Infowars because he’s a nut-job, con man whose only claim to fame is peddling conspiracy theories; outrageously priced questionable health supplements; screaming "they’re making the frogs gay!"; and because he got national attention after he claimed that the Sandyhook shootings were faked, claimed no children actually died, accused all the grief stricken parents of being government paid actors and incited many of his followers to subsequently threaten the lives of the grieving families.

Seriously, there is not one honest bone in the guy’s entire body. The sad thing is, he’s been running such a long con, he’s gone native and has started to believe the crap himself.

John Carroll says:



Anonymous Coward says:

Re: Please

I should mention after CISPA passed

When did this happen? When did CISPA pass?

That’s right, it didn’t. It got shot down a half-dozen times, and then finally died an ignoble death.

So while you’re right that no one is ever going to find one news story of someone innocent being "TARGATED" because of CISPA, it’s because CISPA doesn’t actually exist as a law that can be enforced.

Also, I suggest you take your keyboard back to the manufacturer: it looks like one or both of your Shift keys is broken (or perhaps your Caps Lock). It’s putting your whole post into caps and making you look like a deranged conspiracy theorist.

Anonymous Coward says:

Re: UNRESPONSIBLE is not an actual word.

Sir I’m going to have to stop you again. You’ve been warned about CAPS LOCK. But also in this case I’m afraid I’m going to have to ask you to look up the meaning of the word citation and write a new post (sans caps, sans means without) about how the use of such, would substantially (that means a whole lot) increase the readability of your posts.

Toom1275 (profile) says:

Re: Re: The Important Thing Is

Let’s see, who’s more trustworthy?

An independent entity with investigative reporters and in-house fact checkers, that stands to lose much if they were to ever publish a falsehood, and thus take great pains to achieve truthfulness amd accuracy (as we saw with Projecting Falsitas’s failed sting attempt)…

Or the dime-a-dozen liar-for-hire propaganda laundering bloggers Zof favors?

Anonymous Coward says:

Re: Re:

America still got to see what unethical pieces of shit Amazon’s Blog (formerly the Washington Post) are.

That’s more important than upholding the right to freedom of speech? Get your priorities straight.

We saw wapo misrespresent and attack a kid and make themselves look like the racist, race-baiting shitrag they are.

When did this happen? They reported the facts as well as opinions of some people who were present. They didn’t attack anyone and as far as I know and it was the right-wing outlets that made it up into an "attack" on the kid.

Weren’t you leaving and never coming back?

Anonymous Coward says:

“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.”

Actually, I think the judge just flubbed and opened up a giant hole for an appeal right here. All the teen needs to show is that the republican party is at odd with the fundamental social order (which looking at the actions of republicans in charge, for the last 10-18 years (especially the last 3-4 years), I think a reasonable juror could be lead to believe), and the original statements leading to this belief are then defamatory.

Stephen T. Stone (profile) says:


All the teen needs to show is that the republican party is at odd with the fundamental social order […] and the original statements leading to this belief are then defamatory.

The GOP isn’t at odds with the fundamental social order. If it was, it wouldn’t have control of nearly every branch of the federal government — or be in a position to have such control.

Stephen Roberts says:

This was never about the lawsuit

This was never about the lawsuit and I suspect everyone involved knew they never stood a chance.

This suit was all about getting the lawyer’s and plaintiff’s foot in the door of the far-right outrage machine. They are going to make plenty of money with speaking fees and appearance fees detailing how they were "Denied Justice!" and railing against "the Deep State(tm)" and "Liberal Media(tm)".

This was never about the Washington Post and was always about milking the poor dupes on the right who will eat this up as proof of their twisted world view.

Thad (profile) says:

8 Covington Catholic Teens Sue ‘Most Egregious High-Profile Individuals’ for Defamation

The defendants have been named as follows (Law&Crime is not including a copy of the lawsuit here so as not publicize their addresses): 2020 presidential hopeful Sen. Elizabeth Warren (D-Mass.), Rep. Deb Haaland (D-New Mexico), CNN’s Ana Navarro, Maggie Haberman of the New York Times, comedian Kathy Griffin, ABC New political analyst Matthew Dowd, Reza Aslan (formerly of CNN), Kentucky entrepreneur Adam Edelen, Princeton University History Professor Kevin M. Kruse, activist and journalist Shaun King, Mother Jones editor-in-chief Clara Jeffery and Rewire.News editor-in-chief Jodi Jacobson.

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