Defamation

Nick Sandmann Sues Washington Post for $250 Million

|The Volokh Conspiracy |

As multiple sources report, Nick Sandmann–the Kentucky student known as the "MAGA hat teen" whose recent confrontation with Native American activist Nathan Phillips on the National Mall made headlines–is suing the Washington Post for its coverage of the event, to the tune of $250 million. Sandmann's attorneys reproduce their complaint here. While the complaint is quite the mix of non-legal accusations and legal claims, the main legal basis at this time is alleged defamation. Some of the claims are as follows:

The Post published its False and Defamatory Accusations negligently and with actual knowledge of falsity or a reckless disregard for the truth.

As one of the world's leading news outlets, the Post knew but ignored the importance of verifying damaging, and in this case, incendiary accusations against a minor child prior to publication.

The negligence and actual malice of the Post is demonstrated by its utter and knowing disregard for the truth available in the complete video of the January 18 incident which was available contemporaneously with the edited clip the Post chose because it appeared to support its biased narrative.

Instead of investigation and publishing the true story, the Post recklessly rushed to publish its False and Defamatory Accusations in order to advance its own political agenda against President Trump.

In doing so, the Post lifted the incident from social media and placed it in the mainstream media, giving its False and Defamatory Accusations credibility and permanence.

Other claims involve failure to investigate and use of biased sources, among others. Some expert practitioners are skeptical of the lawsuit's merits. They emphasize, for example, that who got in whose face between Sandmann and Phillips is a matter of opinion rather than a verifiable fact.

What happened during the encounter is a story that developed over several days, with more video footage and testimony surfacing along the way, and I would be surprised if the court held the Washington Post to the standard of knowledge and investigation that Sandmann's lawyers seem to expect. It is also not too clear who the "unbiased" witnesses (is there such a thing?) are that the Post should have interrogated before printing any story. To this day, the Internet debates what exactly happened on that day. It is doubtful that a newspaper will be held liable for essentially failing to take the plaintiff's side in the controversy.

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  1. To this day, the Internet debates what exactly happened

    That’s only because some people still can’t let go of their religious certitude about MAGA hats and “smirking” white boys. Which is exactly the point, because the Post didn’t expend any more effort than a random individual on social media for the first several days. You are either a journalist, investigating what really happened, or you’re a cheerleader for a political point of view. You can’t be both, and you can’t decide to be one or the other depending on how juicy the story seems to be.

    The more basic problem, though, is the entire notion of narrative journalism. It began as the seemingly innocuous idea that readers will understand the facts better if they are placed into a narrative to explain the development of the story. But it rather quickly morphed into cherry-picking facts to fit an ideological narrative with no natural relationship the actual events being “reported.” Journalism is not going to recover until that situation is widely recognized and the narrative style exorcised from news reporting.

    1. “You are either a journalist, investigating what really happened, or you’re a cheerleader for a political point of view.”

      Is your position that political cheerleaders aren’t protected by the 1A?

      1. My position is that when you take sides in an issue, and “report” only what fits your “narrative”, even after countervailing information is widely available, it substantially weakens your claim to have been doing your best in the fog of breaking news. If that isn’t salient in a defamation claim, it ought to be.

        1. So in your view, it should be “salient” in a defamation claim against Tucker Carlson that he didn’t perform a full investigation to evaluate both sides of everything he speaks about?

          1. What does “salient” mean here, exactly? What are you proposing?

          2. Tucker Carlson is not a news reporter or a journalist. He offers opinions.

            1. “Tucker Carlson is not a news reporter or a journalist.”

              But he repeats what other people say. Just like the WaPo reporting, here. Are you saying he doesn’t have 1A protection?

          3. An interesting mix of an ad hominem tu quoque and straw man fallacies.

            1. I remember the first time I cited fallacies at strangers on the internet. I was 12.

              1. So you forgot everything you learned at age 12 then?

                1. I learned to stop reciting fallacies like a fucking child.

                  1. I think you would be better served by just not making them anymore.

                    1. Please reference page 72 of your copy of Pointless Internet Arguments for Dummies. In order for a fallacy to rebut the claim, you still have to state that the conclusion is false. “Tom is an asshole, and so you shouldn’t believe him” can still be a true claim, even if his unreliability doesn’t follow from his being an asshole. The argument that fallacious arguments are wrong is itself a formal fallacy.

                      All of which is irrelevant because you don’t even understand tu quoque or strawmen fallacies. This isn’t a hypocrisy fallacy discussion. Rather, the OP said something about how newspapers can’t be journalists and political cheerleaders at the time. (This itself is a bit of a strawman, since WaPo’s status as “journalists” versus “political cheerleaders” is irrelevant to their 1A rights. Sullivan (among other cases) extends equally to political cheerleaders (like Tucker, or WaPo, by your estimate) or real journalists, like, uh, Breitbart? Lol.

                      Since neither political cheerleaders nor journalists are under any obligation to investigate both sides, the application of the argument to both is certainly not a fucking strawman. It’s a direct request for the argument to address a similarly situated defendant.

                    2. Difficult to sift through the entire rant above but to focus on one comment that doesn’t seem to be an insult, I guess I agree that journalists are not obligated to investigate both sides, but when entities choose to print defamatory material, they can be held accountable, at least theory.

                    3. Ok, so tell us what you think “can be held accountable” means? And if you think WaPo is not investigating both sides, do you think they should “be held” more “accountable” than political cheerleaders who are similarly not investigating both sides?

                    4. Well, kind of thought it was obvious, but since you’re asking nicely. By “held accountable,” I mean pay damages and comply with any other relief awarded by the court. And, as far as other accountable parties, I think it’s possible we may see more litigation. I hope so.

                    5. “Well, kind of thought it was obvious, but since you’re asking nicely. By “held accountable,”…”

                      So following from that, do you think Tucker Carlson should be made to pay damages and comply with any other relief awarded by a court for failing to investigate two sides of an issue?

                    6. You seem kind of fixated on Tucker Carlson. Strange. But something else that I think is kind of obvious though, he’d have to take that little extra step from failing to investigate to actually publishing defamatory material.

                    7. Make it whomever you want. Make it Breitbart. Assume Nick Sandmann went to Breitbart and said that the Native American protesters surrounded him. Do you think Breitbart is liable for defamation if it fails to investigate the other side? Or do you think Breitbart is entitled to report (accurately) things that people say about an incident? Do you think Breitbart is obligated (i.e., on threat of defamation liability) to issue a retraction, even if the things it reported about what a person said were true?

                    8. And, by “held accountable,” I’ll add that I hope the WaPo long endures the public opprobrium it so deserves.

              2. A long two years ago.

      2. “Is your position that political cheerleaders aren’t protected by the 1A?”

        Not when they make negative factual assertions about people. Opinions are one thing, assertions of fact are another.

        1. Well in this case, it’s when they publish negative factual assertions made by other people. Which is the sort of thing political cheerleaders do too, right?

      3. “Is your position that political cheerleaders aren’t protected by the 1A?”

        The First Amendment was never a defense to claims of defamation, until we got the Sullivan case. Even under Sullivan, the First Amendment only provides protection in defaming public figures.

        1. This is true but incomplete. Under Gertz, private plaintiffs still have to show actual malice to get punitives. That’s why Sandmann’s lawyers spend pages and pages on actual malice. Surely you don’t think there’s $250M in actual damages, here?

          1. “Surely you don’t think there’s $250M in actual damages, here?”

            The amount certainly damages my previous sympathy for young Master Sandman and his family. It is a stunt, and one in which the young man is likely a pawn. (I cite this as opinion, not a statement of fact — just in case anyone’s keeping score)

            1. Part of the goal is to extract apologies and generally damage the reputation of the entity that they perceive to have defamed him. Keeping this in the headlines is a means to that end. Even if WaPo’s garbage reporting doesn’t rise to the level of defamation, their “journalists” certainly had it in for the kid. Do you think he would rather just let them off the hook?

              1. “Do you think he would rather just let them off the hook?”

                I don’t think he intended to make a media martyr out of them.

      4. Not when they defame private citizens

      5. Start working at home with Google! It’s by-far the best job I’ve had. Last Wednesday I got a brand new BMW since getting a check for $6474 this – 4 weeks past. I began this 8-months ago and immediately was bringing home at least $77 per hour. I work through this link, go to tech tab for work detail.
        >>>>>>>>>> http://www.payshd.com

    2. How about: “While the complaint is quite the mix of non-legal accusations and legal claims…” Interesting comment. Probably something that could be said about virtually every case ever filed ever (which says something about the character of the legal profession in general) but even more applicable to pretty much every action filed against the Trump administration, from the emoluments cases to the latest CA action.

    3. WaPo could have reported the facts (something most reasonable people would appreciate) without the editorializing (outside the editorial page) and they wouldn’t be facing a lawsuit.

      But they made up “facts” that were wrong and defamatory to the teenager – and for that they should be punished. I’d love to see them fined $10 for every person their defamatory speech reached… which would be more than the $250 million the suit is seeking.

  2. “It is doubtful that a newspaper will be held liable for essentially failing to take the plaintiff’s side in the controversy.”

    No this misses the point. The newspaper took the defendants side.

    The Washington Posts’ rushed out an interview on Sunday January the 20th with Nathan Phillips. The story is dated the 22nd, but it was actually posted on the 20th. There is no attempt in the story to get both sides. It was a hit job with multiple comments on various groups condemning the minors.

    https://goo.gl/5CfPUM

    1. Most of that complaint seems less a customary legal pleading and more a disaffected, bitter rant against liberals, elites, journalists, the American mainstream, and modernity . . . just what one might expect from the type of ostensible adults who choose to live in Kentucky; send a child to a nonsense-teaching, superstition-based school affiliated with a morally bankrupt institution; and send that child to Washington wearing the goofy red hat that marks a fledgling bigot and yahoo-in-training.

      1. Reverend you continue to be the most bigoted commentor I see. Shouldn’t you be posting on some kind of Hate site with your kindred spirits.

        1. More bigoted than the guy who calls for disenfranchising women and blacks? More bigoted than the guy who advocates putting those he dislikes — educated, non-right-wing, accomplished, tolerant, elite Americans — face-down in landfills? More bigoted than the ‘throbbing male member’ guy or the white nationalists?

          You sound like an uneducated, stale-thinking, right-wing malcontent, JWatts. And a great faux libertarian.

          Carry on, clingers.

          1. Arthur L. Hicklib’s programmed responses need a software update.

          2. Amazingly enough, yes RAK, you come across as more bigoted than even those folks.

            1. Only to right-wing extremists.

              I am content.

          3. The fact that you use “right-wing” repeatedly as a pejorative indicates just how mentally deficient you actually are.

            Here i can do it to!

            “You sound like an elitist, un-thinking, left-wing baby killer, Rev. Arthur L. Kirkland, and a great faux libertarian”.

            Your the exact reason so many people hate the Progressive left. You’re so far up your own ass you can see daylight. You think you’re more intelligent than you actually are, and you clearly haven’t thought through any of your “positions” and are simply operating on a knee-jerk, emotionally, programmed response that you’ve been fed by your political tribe.

            1. RAK is the exact reason so many people hate the progressive left?

              Do I get to call AltRightWingGuy the reason so many people hate the conservative right?

        2. While I have no way of knowing the level of his bigotry, there is empirical support for his description.

      2. I’m a pro-life Catholic in Kentucky, Rev. Our rent is a quarter of what it would be in Boston; the traffic is non-existent; my husband’s university has actual ideological diversity among faculty and he won’t be censured for assigning The Federalist Papers to his students; the food scene is amazing; my colleagues are brilliant, talented, and kind; and the weather is much improved.

        So who is the smart one here? I think that leaving the Acela corridor was a fantastic decision. But it must be because I’m uneducated and anti-woman, right?

        1. You could find a reasonable cost of living without sinking to Kentucky depth. And no cost of living issue justifies backwater religious (nonsense-teaching, dogma-enforcing, science-disdaining, censorship-shackled) schooling.

          You couldn’t find a more reprehensible major institution in America than the Catholic Church, though. Would you send a child to be an altar boy, after all of the revelations of facilitation and concealment of abuse, after the documented record of attacking victims to preserve wealth and reputation, after all of the demonstrations that the Catholic Church is a deceptive, morally bankrupt cesspool. How much superstition and gullibility does it take to put the lipstick on that one?

          America is sifting, and Kentucky is on the wrong end of it. Why reject successful, modern, educated, reasoning America for a life in can’t-keep-up America?

          1. Rev., your comments about the Catholic church are just bigoted.

            I’m a chemical engineer turned lawyer; my husband is a professor. I think we can figure out how to get our kids a top-flight education without being surrounded by bigots who think that living in an expensive area makes them modern royalty.

            Maybe you should try going to Kentucky sometime. While the rural areas are poor, our region is successful, modern, educated, and reasoning. Best part is, all the bigots live far away.

          2. I also cannot help but add: our children, if we can have any at my advanced age, will have a massive advantage if they apply to the elite East Coast schools. We’re playing a long game: we both have jobs with very reasonable hours, will be able to get our kids the cultural amenities of the city, and, when it comes time for college admissions, our Kentucky-born offspring will have an incredible advantage over all of those kids whose parents are working 80 hours a week each to afford to live in Westchester County, in a school district in which about fifty kids apply to Harvard every year.

            Every so often, the newspapers publish stories about kids who get into all eight Ivy League schools. Universally, those students are either minorities from very, very poor inner city schools, or they are from places like Idaho.

            We’re playing a long game here. In fact, I almost shouldn’t talk about it, so other people don’t discover how great this area is, move in, and wreck it.

          3. The worst schools are located in major urban areas. Kentucky’s schools are average, based on comprehensive metrics.

            “Why reject successful, modern, educated, reasoning America for a life in can’t-keep-up America?”

            Where did you attend school? I don’t get the impression you are terrible familiar with private schools or top tier colleges and universities.

      3. “a nonsense-teaching, superstition-based school affiliated with a morally bankrupt institution”

        Well, the school administration agreed with you against Sandmann and his classmates, so based on their agreement with you, judge for yourself how backward and bankrupt they are

      4. Is that a statement of fact or an opinion?

      1. The Post is the defendant.

        Looking for legal insights and accuracy? You’re at the wrong place, friend. This is a disaffected movement conservative blog.

      2. “The Post is the defendant.”

        Yes, that was an incorrect statement on my part. The first Post article (articles?) took the side of Nathan Phillips without any attempt to get the other side of the story.

        1. without any attempt to get the other side of the story

          That’s quite the unqualified declaration from someone who doesn’t know what he is talking about.

          1. I posted a link to the article above which anyone can use to read and determine the facts for themselves. You’re a random internet troll throwing insults at people you don’t like.

            1. I’m the guy saying you have no idea how the Post developed its report, yet you toss around silly unqualified declarations about the issue because you figure that will advance your bigoted, backward political preferences.

              Carry on, clinger. So far as stale right-wing thinking can carry anyone, that is.

    2. JWatts – I am less bothered by the Post taking the sides – newspapers have been doing that for a long time – pre revolutionary war times. Taking sides is also protected by 1A

      That being said, when phillips (or his henchmen ) first presented their story to the post, it should have been obvious to the reporter/employees of the Post that philips was an activist , with an agenda and the accuracy of his story to be highly questionable. (no attempt to verify the story – reckless maybe)
      Yet the Post ran with his story and continued with the with the story even after the Post became aware that Phillips version of the story was false. At this point it was known to be false and was with malice.

      That is where Sandman has the cause of action.

      1. +1, I agree with what you wrote. I too am less concerned with publishing a biased and malicious story and more concerned with sticking with it when it became verifiably false.

    3. No this misses the point. The newspaper took the defendants side.

      The newspaper is the defendant.

  3. The Washington Post better sleep with one eye open, gripping the pillow tight…

    1. Lol, perfect!

    2. *CLAPS*

    3. I have never liked or understood Metallica, but that is a good one.

      1. I know, right! Them goobers and their rock and roll…

        1. I do not understand why anyone would devote time to Metallica in a world with the Rolling Stones, the Who, Aretha Franklin, Bruce Springsteen, Bob Dylan, Darlene Love, John Fogerty, Johnny Cash, the Motown crew, Sam Cooke, Southside Johnny, Whitney Houston, Glen Campbell, Anti-Flag, the Temptations, the Blues Brothers, the Beatles, Stevie Wonder, Chuck Berry, Jerry Reed, Joni Mitchell, Southside Johnny, and Queen, but if Metallica’s music (or that of David Cassidy, or the Backstreet Boys, or the Spice Girls) makes some people happy, that is great.

          1. Because they rocked? At least until the black album. And that list you assembled…….pot calling the kettle black I would say.

          2. “…world with the Rolling Stones…”

            You’re OK with people singing about the joys of raping slaves? I thought that that was something you’d be against.

            1. He’s a Democrat, all right.

              1. “Chuck Berry”

                IIRC he had #metoo issues as well.

                1. Yeah, and Randy Newman really hated short people. You two are Republicans, all right.

          3. What a comprehensive list chock full of superstitious rubes from various backwaters, amirite? You must disdain them all

      2. I’m betting there is a very long list of things you neither like nor understand. The latter condition causing the former in most cases.

        1. Of course there is, as there is for all of us.

          Not sure when it was that one person in one lifetime could gain a reasonably complete handle on all the currently accumulated knowledge of the universe (Michelangelo lamented that such a feat wasn’t possible for him), but it was a long time ago.

          Also, it is not a universal given that lack of specific knowledge is the core cause of like/dislike for any specific thing. There are many things I may be reasonably sure I dislike and, while gaining knowledge may result in a more complete understanding of the thing, that understanding may logically justify either in increase or decrease in level of dislike.

  4. A few observations on the libel claim
    1) Most of the MSM skirt the liability by stating they are reporting what someone else said, thereby having the defense that they did not make the false claim – someone else made the false claim.
    2) As JWatts points out, the Post did not make an attempt to ascertain the reasonableness of the claim, as in all cases, there are two sides of the story and the Post “only reported what they had someone else told them
    3) After it became clear, the story was false, no attempt was made to retract or to report that phillips was the instigator, which in effect was tantamont to continuing to promote the false claim.
    4) I would suspect that the Post had information within 2-3 hours that the story was false. If they didnt have that info, is the failure effectively the equivilant to reckless disregard for the truth – specifically due to the known activist agenda of Philips. (FWIW –

    1. So not making an attempt to retract a story, ie. doing nothing, is the same as promoting a false claim. I ain’t no lawyer, but I think you would get a lot of push back on this site for that assertion.

      1. I think the issue is more that the Post continued to publish the false statements, even after they knew they were false.

      2. In the internet age where things are both continuously actively published and utterly trivial to update, yes.

  5. I think there is an even bigger question — is there really any way that the Post’s coverage alone could do a quarter of a billion dollar’s worth f damage to the reputation of a high school kid?

    1. Maybe not but it seems like a just punitive measure. It happens to be what Bezos paid for the rag.

      The best outcome would be for the Washington Post to be gawker’d.

      1. The predictable outcome is that guys like you will continue to lose the culture war and be forced to comply obsequiously with the preferences of your betters.

        Have fun. I know I will.

        1. This kind of thinking historically led to revolutions and “betters” losing their heads. Now that would be funny.

        2. (Arthur, the totalitarian communist)

          1. Rev Arthur L. Kirkland is a Hunger Games fan-fic version of a Capitol elitist as reimagined by Tara Gilesbie author of the Harry Potter fan-fic “My Immortal”!!!!!!111!

        3. “The predictable outcome is that guys like you will continue to lose the culture war and be forced to comply obsequiously with the preferences of your betters.”

          That’s right, Arthur, you tell ’em. The goobers will be forced to use the healthcare that their betters say that they must use!
          And forced to use the childcare that their betters tell them to use!
          And forced provide economic security to those betters that are unwilling to work!
          And forced to used public transportation and high speed rail! The betters will not permit cars and airplanes.
          And forced to work for those companies that the betters will permit in the community.
          And forced to live in multifamily housing. The betters frown on wasteful single family housing.

          I, for one, welcome our new better overlords!

          1. 12,
            Your beatings will continue until your morale improves.

            1. “Your beatings will continue until your morale improves.”

              Well, what do you think he meant by “forced to comply obsequiously with the preferences of your betters”?

              I like Kirkland because he presents the best arguments for the left’s positions, and because he is clear about what the left’s goals are.

        4. I wonder much of this tripe you post is what you really believe, or how much it is you just trolling.

          1. When I first read the Reverend I though the was a Right wing troll making fun of Left wing bigots. But he’s been doing this stick for years. So, now I’m not so sure. He might actually be the bigot he appears to be.

            Though if it turns out that he’s a right wing troll, then kudos for a masterful performance.

            1. You’re right, of course, that he’s never really varied. When I would occasionally lurk at the VC at the Washington Post because I wouldn’t pay them for the ability to comment, or even at the old VC site (where I never commented), he has never really varied his routine. That said, it just such a superhuman level of inanity that flows forth that you can’t help but ask and hope for a reply. He can’t be this trite in person, or can he?

              1. He was better at the old VC; often quite humorous. But this thing lately about how we’ll be treated by our “betters” is just sick.

          2. I wonder why people always respond to him. When I see the comments I scroll right past them. Its pure garbage 90% of the time and uniformed the other 10%

            1. Winning the culture war and seeing America improve in line with my preferences readily offsets the opprobrium of ‘right of center’ America.

      2. It’s a matter of public controversy, which requires Actual Malice. No way are they going to recover that.

      3. We had real damages theories in the Gawker case, because Terry Bollea’s (Hulk Hogan) image had value, even in the context of a sex tape, and Gawker’s business model depended on those contacts.

        Here they just picked what they thought the paper was worth.

        1. “those contacts” = “that conduct”.

    2. That includes a request for punitive damages. Apparently it’s the amount Bezos paid for WaPo.

  6. How is the $250 million arrived at? Will Rule 11 ever apply to complaints?

    1. That figure seems pretty standard for the predicted lifetime earnings of teenager from Kentucky relying on backwater religious schooling and wearing the goofy red hat of a fledgling bigot.

      1. It probably is, in nominal dollars. They should have adjusted for (hyper) inflation.

        1. Don’t hold your breath. We have been waiting for the hyperinflation you guys have been predicting for 10 years.

          1. By you guys, I take it you mean Austrian economics in general. Good point, no clean answers, other than the still undisputed fact that inflation is still an monetary phenomenon. That said, we (as in Austrian economists) are also waiting on evidence that Keynesianism works as intended.

            1. All-talk incels, disaffected white nationalists, and right-wing malcontents have been bitching and whimpering, moaning and ranting about the coming collapse (monetary, societal, racial, political) throughout my lifetime.

              The gold standard, fluoridation, ‘other people’s babies,’ fiat currency, the race war, the ‘rise of the silent majority,’ black helicopters, precious bodily fluids, militia uprising . . . birtherism was a relatively mild example of the form.

              Carry on, clingers. More ‘sky is falling’ predictions, please. Or at least more forecasting that you guys are going to turn around the direction of the culture war.

          2. And instead they’ve only doubled the money supply….again…..

  7. “They emphasize, for example, that who got in whose face between Sandmann and Phillips is a matter of opinion rather than a verifiable fact.”

    I’m struggling to come up with another legal situation where this wouldn’t be considered a question of fact.

    “To this day, the Internet debates what exactly happened on that day.”

    Apparently it’s still an open question whether Obama was born in Hawaii. And whether we landed on the moon. And whether the California wildfires were set to make it easier to build the high-speed rail that California just cancelled. And whether the government caused California’s drought using chemtrails.

    1. Phillips claimed he was trying to go up the steps to the Memorial, but the videos show him walking past a wide open expanse of stairs in order to walk into the group of boys. I don’t see how that’s a matter of opinion either.

    2. I’m struggling to come up with another legal situation where this wouldn’t be considered a question of fact.

      Not only is it a question of fact, it’s an easily settled question of fact. Unlike in most cases like this, we have ACTUAL VIDEO OF THE ENTIRE INCIDENT.

      If this can’t be considered settled fact, literally nothing can. Virtually everyone sitting in prison was convicted on flimsier evidence than this. Do we set them all free, or what?

  8. “They emphasize, for example, that who got in whose face between Sandmann and Phillips is a matter of opinion rather than a verifiable fact.”

    What? No it’s not, you ignorant windbag. Sandmann never moved an inch. He just stood his ground. Have you been gaslighted or are you trying gaslight others?

    1. “Sandmann never moved an inch. He just stood his ground.”

      It’s absolutely clear from any of the longer videos that Nathan Phillips deliberately walked up to Sandmann.

  9. ” They emphasize, for example, that who got in whose face between Sandmann and Phillips is a matter of opinion rather than a verifiable fact.”

    Is there some dispute about who walked up to who? Not that I’ve heard.

    1. There is a dispute about it, one that seems to be resolved by the video evidence.

    2. “Is there some dispute about who walked up to who?”

      Well, motion is relative. It’s science!

  10. I sifted through the complaint but didn’t find it. Can someone point me to the specific defamatory statement?

    1. In its First Article, the Post published or republished the following false and defamatory statements:

      The headline “‘It was getting ugly’: Native American drummer speaks on the MAGA-hat wearing teens who surrounded him.”

      “In an interview Saturday, Phillips, 64, said he felt threatened by the teens and that they suddenly swarmed around him as he and other activists were wrapping up the march and preparing to leave.”

      “Phillips, who was singing the American Indian Movement song of unity that serves as a ceremony to send the spirits home, said he noticed tensions beginning to escalate when the teens and other apparent participants from the nearby March for Life rally began taunting the dispersing indigenous crowd.”

      “A few people in the March for Life crowd began to chant ‘Build that wall, build that wall,’ he said.”

      1. “‘It was getting ugly, and I was thinking: ‘I’ve got to find myself an exit out of this situation and finish my song at the Lincoln Memorial,’ Phillips recalled. ‘I started going that way, and that guy in the hat stood in my way and we were at an impasse. He just blocked my way and wouldn’t allow me to retreat.'”

        “‘It clearly demonstrates the validity of our concerns about the marginalization and disrespect of Indigenous peoples, and it shows that traditional knowledge is being ignored by those who should listen most closely,’ Darren Thompson, an organizer for the [Indigenous Peoples Movement], said in the statement.”

        “Chase Iron Eyes, an attorney with the Lakota People Law Project, said the incident lasted about 10 minutes and ended when Phillips and other activists walked away.”

        “‘It was an aggressive display of physicality. They were rambunctious and trying to instigate a conflict,’ he said.

        ‘We were wondering where their chaperones were. [Phillips] was really trying to defuse the situation.'”

        “Phillips, an Omaha tribe elder who also fought in the Vietnam war, has encountered anti-Native American sentiments before . . . .”

        1. In its false and defamatory Second Article, in addition to those identified in the First Article, the Post published or republished the following false and defamatory statements:Exhibit A

          “‘We [Bishop Foys and the Diocese of Covington] condemn the actions of the Covington Catholic High School students towards Nathan Phillips specifically, and Native Americans in general,’ the statement said. ‘The matter is being investigated and we will take appropriate action, up to and including expulsion.’ ? The diocese’s statement expressed regret that jeering, disrespectful students from a Catholic school had become the enduring image of the march.”

          1. In its Third Article, the Post published or republished the following false and defamatory statements:

            The headline “Marcher’s accost by boys in MAGA caps draws ire.”

            “In an interview Saturday, Phillips, 64, said he felt threatened by the teens and that they suddenly swarmed around him as he and other activists were wrapping up the march and preparing to leave.”

            “Phillips, who was singing the American Indian Movement song that serves as a ceremony to send the spirits home, said he noticed tensions beginning to escalate when the teens and other apparent participants from the nearby March for Life rally began taunting the dispersing indigenous crowd.”

            “A few people in the March for Life crowd began to chant ‘Build that wall, build that wall,’ he said.”

            “‘It was getting ugly, and I was thinking: ‘I’ve got to find myself an exit out of this situation and finish my song at the Lincoln Memorial,’ Phillips recalled. ‘I started going that way, and that guy in the hat stood in my way and we were at an impasse. He just blocked my way and wouldn’t allow me to retreat.'”

            “‘It clearly demonstrates the validity of our concerns about the marginalization and disrespect of Indigenous peoples, and it shows that traditional knowledge is being ignored by those who should listen most closely,’ Darren Thompson, an organizer for the [Indigenous Peoples Movement], said in the statement.”

            1. “‘We [Bishop Foys and the Diocese of Covington] condemn the actions of the Covington Catholic High School students towards Nathan Phillips specifically, and Native Americans in general,’ the statement said. ‘The matter is being investigated and we will take appropriate action, up to and including expulsion.'”

              “Chase Iron Eyes, an attorney with the Lakota People Law Project, said the incident lasted about 10 minutes and ended when Phillips and other activists walked away.”

              “‘It was an aggressive display of physicality. They were rambunctious and trying to instigate a conflict,’ he said. ‘We were wondering where their chaperones were. [Phillips] was really trying to defuse the situation.'”

              “In that role, he [Phillips] has encountered anti-Native American sentiment before . . . .”

              1. I see now that the WaPo is going to win this lawsuit.

      2. Thanks for posting all those, but can you post the defamatory statements made by WaPo next?

        1. The question, of course, is whether a news outlet’s decision to accurately quote what they know to be false statements about somebody is protected against a defamation suit.

          Because they can always find SOMEONE to spout some lie they feel like spreading.

          1. Are you suggesting that journalists be punished for publishing quotations from Sarah Sanders, Donald J. Trump, Roger Stone, and Stephen Miller?

            1. If Sarah Sanders referred to Chuck Schumer as a “filthy Irish pervert”, and WaPo reprinted that quote, Schumer would likely have a valid defamation claim against both on the grounds that he is not Irish.

              1. And risk a lawsuit by millions of defamed Irish? No way.

          2. While reporting on a thing that happened and that was blowing up Twitter, WaPo quoted the words people said knowing the words they were quoting were lies, somehow. They printed the words the person said anyway because WaPo decided they wanted to do a story about racist teenagers and they needed quotes. Got it.

            You’re like if Thurgood Marshall and Elliot Ness had a baby and that baby was possessed by the ghosts of William Brennan, J. Edgar Hoover, and Glenn Beck to create The Super Duper Law-Talkin’ Baby of the World.

            1. While reporting on a thing that happened and that was blowing up Twitter, WaPo quoted the words people said knowing the words they were quoting were lies, somehow. They printed the words the person said anyway because WaPo decided they wanted to do a story about racist teenagers and they needed quotes

              So basically, they either deliberately ignored what actually happened to push an agenda, or they were so stupid and lazy that they couldn’t be bothered to do a little further investigation prior to printing such an inflammatory, one-sided account.

              I guess going with “WaPo’s reporters and editors really are that fucking retarded” is a slightly better defense than “their confirmation bias prevented them from digging further,” but it’s not much of one.

        2. “Thanks for posting all those, but can you post the defamatory statements made by WaPo next?”

          The WP reporter definitely characterized Sandmann as wearing a MAGA hat and smirking. That doesn’t seem to substantial. Certainly nothing you can win a case against. But then reporter followed it up with an entire article from just Phillip’s side of the story. A story which later videos proved to be full of lies. Furthermore, the WP has never retracted the original story.

          1. The WaPo has already reported on the full video, for one example, see here.

            1. LOL, I can’t believe you linked to a report with the title:

              “Catholic school teen in viral video: ‘Now I wish I would have walked away'”

              As a defense of the Washington Post’s treatment of a 17 year old minor.

              Epic Fail.

              1. Well the Post was just quoting notorious liberal fake news NBC’s interview with him. Which he agreed to give, in order to clear his name. But maybe you missed this part:

                “Later, more videos surfaced showing a fuller picture of what had occurred. Some videos showed the Covington Catholic students and a group of Hebrew Israelites, who believe African Americans are God’s chosen people, exchanging taunts. Phillips intervened and walked toward the students ? specifically, to Sandmann ? as he played a prayer song.”

                Are you saying this is inaccurate? Why are Sandmann’s own words not an appropriate way for WaPo to report his side of the story?

                1. “Why are Sandmann’s own words not an appropriate way for WaPo to report his side of the story?”

                  Surely you can’t be that dumb? They took the words out of context and the obvious implication from the headline is that the teenager is admitting he was wrong. Nothing could be further from the truth.

                  Also, I would imagine that if the plantiff’s lawyer is smarter than a house plant he will be sure to point out that, the WP published this after:

                  “The controversy has resulted in death threats that prompted officials to close the school on Tuesday. “.

                  Which would of course be the same controversy that they were a substantial part of creating.

                  It won’t be the WP lawyers who are showing this article to the jury, it will be the plantiff’s lawyers.

                  1. “They took the words out of context and the obvious implication from the headline is that the teenager is admitting he was wrong.”

                    Second paragraph of the article, direct quote from Sandmann: “But I can’t say I’m disrespectful standing there and listening to him.” How would you have rewritten the headline? And why would it ever be defamation just because people don’t write headlines the way you wanted? (Do you think that would be good for Breitbart?)

                    “Also, I would imagine that if the plantiff’s lawyer is smarter than a house plant he will be sure to point out that, the WP published this after…”

                    I don’t think the plaintiff’s lawyers would ever want to emphasize the WaPo’s true reporting of the incident, including facts that would be sympathetic to Sandmann.

                    “It won’t be the WP lawyers who are showing this article to the jury, it will be the plantiff’s lawyers.”

                    This isn’t going to a jury.

                    1. This isn’t going to a jury because there is no way in hell WaPo wants to face a Kentucky jury. There legitimate questions of what WaPo knew and when, which is what trials are for. Do you really think, on discovery, Sandmann’s lawyers AREN’T going to find a slew of internal documents bashing these kids that would indicate WaPo had an agenda?

                    2. “Do you really think, on discovery, Sandmann’s lawyers AREN’T going to find a slew of internal documents bashing these kids that would indicate WaPo had an agenda?”

                      I think they will never get discovery.

  11. The Post corrected their coverage within days, and the lingering effects are that Nicholas Sandmann is a conservative hero. Accepting all the factual allegations as true, and allowing that a “gist” is actionable, I don’t see justification for any compensatory damages never mind $50M.

    1. Nicholas Sandmann is a conservative hero.

      Yes. He’s vastly better off than he was because of the incident. Probably he’ll get a talk radio show, or a spot on Fox, pretty soon.

      1. If we assume his career ambition go in that direction. Do you happen to know?

      2. Do you believe that, or are you just being a douche?

      3. Don’t know I would go that far, but I think it’s quite likely his reputation has been enhanced rather than damaged by this experience.

        1. Depends on what he intends to use his reputation for. Let’s say he wants to work in the music or entertainment industry as a singer or actor…then not so much. If he wants to hit the think-tank circuit in ten years after getting degree’d, then maybe.

      4. Just because the left lionizes idiots like David Hogg doesn’t mean the right does.

        1. Read this thread.
          Your side loves young conservative victim-activists.

    2. “The Post corrected their coverage within days”

      No they didn’t. The original article is still posted and the only correction is:

      “Correction: Earlier versions of this story incorrectly said that Native American activist Nathan Phillips fought in the Vietnam War. Phillips said he served in the U.S. Marines but was never deployed to Vietnam.”

      1. J, if you mean this Jan. 19 article you can also find at the top:

        Interviews and additional video footage have offered a fuller picture of what happened in this encounter, including the context that the Native American man approached the students amid broader tensions outside the Lincoln Memorial. Read the latest article here.

        where the last bit is a link to more balanced content.

        1. No, I was referring to this story: https://goo.gl/5CfPUM

          1. The WaPo published a story–literally the following day–discussing the new video footage.

            1. Stating that it existed. They then hemmed and hawed over how complicated it all was, as opposed to reporting on the facts included in the video.

              1. I read the article. It reported on the facts included in the video. Could you cite the article you’re thinking of?

      2. “I started going that way, and that guy in the hat stood in my way, and we were at an impasse. He just blocked my way and wouldn’t allow me to retreat.”

        This is clearly a false claim, as the video shows that there was plenty of room to get around the kid.

    3. I don’t see Sandmann being invited to Conservative events as a thoughtful and acclaimed speaker like Hogg was. Are you an idiot?

      1. Conservative events seeking to draw a crowd are not in the market for thoughtful and acclaimed speakers. They prefer superstitious yahoos (with an emphasis on miracles), bottle-blonde television pundits, veterans who are white nationalists, contrarian extremists, and ‘everyman’ Joe the Plumber types. This kid from Kentucky might fit right in.

  12. I think all these cases are important because they should, at the very least, have the courts articulate an editorial standard such that they can avoid liability when publishing a claim that ends up being false in the end.

    Clearly in the heat of the moment, falsities will occur, that is clear. The same is true of sexual harassment in the workplace. An employer cannot anticipate when a new hire will end up becoming a serial groper. However, every company that wants to avoid being jointly liable has protocols for detection of a harasser. The press should be no different in having protocols to avoid publishing untruths.

  13. To this day, the Internet debates what exactly happened on that day.

    What a joke. I mean, this statement is technically true, much as “To this day, the Internet debates whether the moon landing was real or an elaborate hoax executed on a Hollywood sound stage.”

    There is no debate as to what happened here. There is live video of the entire incident. The “debate” consists of those who are pointing out what actually happened, and lying activists who are inventing alternative fictional scenarios out of whole cloth.

  14. “It is also not too clear who the “unbiased” witnesses (is there such a thing?) are that the Post should have interrogated before printing any story.”

    That seemed like a puzzler to the post as well.

  15. Discovery will be interesting, if it reaches that stage.

  16. If it goes to trial, where will it take place? DC? Or Kentucky?

    And what if a jury determines that it IS obvious from the unedited video that Sandmann’s version of events is the correct one? Then is that enough to get a ruling in the plaintiff’s favor?

    What exactly does the plaintiff have to prove? And by what standard of proof in this civil case?

    Isn’t it plausible that a jury could believe that there’s more than a 50% chance the paper is guilty of defamation?

    I’m not a lawyer, and not at all knowledgeable about defamation law.

    1. UNITED STATES DISTRICT COURT

      EASTERN DISTRICT OF KENTUCKY

      NORTHERN DIVISION

      AT COVINGTON

      1. Well the WP’s legal team will have to get the venue changed. There’s no way a jury in Kentucky reading the WP’s original article and then seeing the actual long video won’t come down hard on a large corporation profiting off of the public humiliation of a group of teenagers on a school field trip.

        1. Humiliated him? By publishing a photograph of a young man wearing a goofy hat he voluntarily placed on his head? By reporting that he had traveled to an anti-abortion rally with a group associated with the Catholic Church? By reporting that he was a Kentucky resident? By reporting he was part of a group that chanted ‘build that wall,’ school slogans, and similar things? Or that he stood face-to-face with a dopey expression on a public thoroughfare for an extended period?

          Not much to be proud of in that pile, but hard to call it humiliating if his actions and associations were voluntary.

        2. WP will difficulty getting a change of venue. It is the home of Sandmann, the washingto post does business in the state, so WP wont be able to claim forum shopping.

          1. At which school did you earn a law degree? Ave Maria? Cooley? Regent? Liberty?

    2. The correct answer is any state that has laws favorable to the Plaintiff where the Washington Post is distributed provided that venue is reasonably convenient for the Plaintiff.

      1. Or, more accurately, that would be the best strategic answer. But I think they just filed in Federal court in Kentucky.

  17. This suit causes me to lose a lot of the sympathy I’d had for Sandmann. At a minimum, he’d have been better advised to let his own emotions cool down, to become older and wiser, to see what the long-term effects (if any) were, and revisit whether to file suit in a year. No obvious reason for him to rush to file.

    1. Do you really think at 16 year old kid is the conductor on this train?

    2. On the contrary. It’s important that he waste no time at all in forcing the Post to issue a complete and prominent retraction ASAP. Because there’s a significant chance some left-wing nut job who read the original account, and missed the partial retraction, will assault him.

      1. Retract what, exactly?

        1. All the lies they published knowing they were lies.

          Look, the media, if they want to smear you, can always find somebody to tell the lie they want to spread. It’s still the media lying.

          1. Oh, all the lies. Gotcha. That makes sense, sure.

            Care to share any of the lies they published knowing the lies were lies?

          2. Lies?

            That people who wear those dopey hats are bigots (or, at least, appease bigotry)?

            That people from Kentucky Catholic schools are superstitious, backwater yahoos associated with a depraved, failed organization?

            Most readers of a mainstream publication infer those points, but I doubt the Post stated them.

        2. “Retract what, exactly?”

          The entire first article from the WP still stands. The writer starts by characterizing Sandmann and his cohort as “MAGA-hat-wearing teens … wearing a relentless smirk.”

          Then it goes on to report Nathan Phillips comments. Some of those comments are obviously contradicted by the subsequent video. The WP has made no attempt to Correct that article.

          1. How are they supposed to correct direct quotes?

            1. By noting that video evidence demonstrates that the quotes they chose to publish were false, and that they knew so when they published them.

              You’re not persuading anybody by playing stupid.

              1. Of course I’m not. If it doesn’t work for someone like you what chance would I have?

              2. WaPo published an article reporting on the later videos, and what they showed. Did you miss those reports?

          2. “…wearing a relentless smirk.”

            So we understand, your claim is that WaPo defamed this kid by stating “One stood about a foot from the drummer’s face wearing a relentless smirk”?

      2. The social justice social media warrior crowd would be happy with an assault on Sandmann, just as they were cheerleaders for Michael Apperson’s attempt to shoot George Zimmerman and still seeth that the Duke LaCrosse team have not suffered enough from the false allegations of Crystal Mangum. Because fact does not change Poetic Truth that justifies moral outrage.

        Besides the news media would have another story to report.

        1. I get the feeling that in 50 years I’m still going to be hearing about DUKE LACROSSE TEAM in every culture war debate.

          1. It was one of your side’s more notorious losses. Too bad the shithead professors who signed that letter didn’t learn a damn thing from it.

            1. I guess we ‘lost that battle.’

              You lost the culture war. For keeps.

              I am content.

            2. I’m not on the side of Duke professors you dumb dickhead.

              1. Stop lying.

                1. ‘If you’re not so evil and crazy, why do I keep insisting you are?’

    3. “by and through his parents and natural guardians,”

    4. Um, at minimum a bunch of journalists who don’t like him and what he stands for published a hit piece about him that caused him to receive death threats. Setting aside the merits of his libel claims, why wouldn’t he want to extract money from those people as quickly as possible? Can hardly blame him for wanting bad people to suffer for their bad actions.

  18. Also, I can’t possibly imagine they could prove these kinds of damages. I agree Actual Malice wouldn’t be required for liability, but it would be for punitive damages on a case involving the public interest.

    1. I don’t see any public interest in ruining a child’s life by ginning up fake news reporting and casting a 16 year old as a racist bigot.

      1. The public interest is in the story, the protest, and the whole controversy. If there wasn’t a public interest, you wouldn’t be commenting on it.

        1. There was no public interest in the protest until they drove public interest in it.

          1. Yeah, no public interest. Except all of Twitter, which is from where the national media picked up the story.

      2. People who voluntarily wear those red hats deserve to be known as racists.

        1. Sh*t Rev, you make me want to go out and get one. But in all honesty, I fear the repercussion from folks like you if I were to wear one. I could get physically assaulted, get a gun pulled on me, lose my job, be slandered with lies by a major newspaper….

          Makes one wonder who the real villains are, eh?

          1. Well, at least you’re not a coward on the internet. On the internet, you’re a person who stands by your convictions.

            1. Coward? Mighty big words for someone who is hiding behind anonymity on the internet herself.

              If you only had any idea of the hardships I have endured to do what is right when no one else was looking, and for which I’ve received no accolades. Moreover, I’m smart enough to know what hill to risk dying on, and wearing a MAGA hat ain’t one of ’em.

              The ballot is secret for a reason you know.

              1. Which part of the MAGA platform is most attractive to you, mad_kalak?

                The belligerent ignorance and lies?

                The bigotry and backwardness?

                The superstition?

                The ranting of the disaffected and irrelevant?

                1. The part that makes Hollywood actors commit felony hate hoaxes, hicklib.

  19. Question to those who know defamation law better than me:

    The complaint uses “gist” offensively, not defensively? Is this typically done?

    For example, if a defamation defendant falsely states that the plaintiff murdered 13, when the later really murdered a dozen, he can claim in defense: “Well the gist of my statement is that your guilty of many murders, thus no defamation.”

    But in this complaint, the plaintiff seems to take statements that may be be literally true & declaring them actionable anyway because of a defamatory “gist.”

    Never saw that before.

    1. True statements can be defamatory if they imply false statements.

  20. This point of the suit is to get to discovery and then use that to get internal documents that are going to just be an outright embarrassment for the WaPo and other media outlets.

    1. Yes, it only looks like an obvious failure, in reality it’s a pretextual action!

      Next-level tactics on view here.

      1. I don’t know that it is an “obvious failure” but I am skeptical of an ultimate legal win here. Anyway, you just have to survive a motion to dismiss to get to discovery. I think that the claim is at least actionable enough to get to that stage. I imagine the WaPo lawyers are thinking how much is it going to cost to make this go away and not get to that stage though. I suspect they have already run the internal discovery queries and have found a lot of documents that they would like not to see the light of day.

        1. ” I think that the claim is at least actionable enough to get to that stage.”

          You think they asserted facts that support a claim of nine-figure damages?

          1. That’s not the standard for a 12(b)(6) motion. The asserted facts merely need to support a claim for which relief may be granted. The amount of damages claimed is irrelevant to this analysis.

      2. Is it difficult to believe a legal team that has successfully gotten major news outlets to settle out of court might be employing tactics that would incentivize a publication to settle out of court?

  21. Who cares, this will get settled out of court. The kid just hit the jackpot. Now the money that Jeff Bezos is saving in the NYC HQ2 fiasco can help pay for this kids lawsuit. Done.

    1. Chump change for Bezos, but yes, it wouldn’t surprise me if this gets settled out of court for single digit millions. I would imagine if the kid was offered $4 million that his parents would convince him to take the bird in the hand.

    2. “Who cares, this will get settled out of court. The kid just hit the jackpot.”

      In the sense that he’s not going to get anything except famous for filing a dumb lawsuit.

      1. I wouldn’t call it “dumb”. Lacking legal merits? Maybe. Dumb. Not really.

        Sue the deep pockets company that probably has a lot of internal documentation they would rather keep out of the public limelight. Paint the kid as a victim of a liberal lynch mob (which he is) and keep him visible in the news cycles. He turns 18 soon and probably has college applications coming up. This will keep at least blatant retaliation at bay and will probably score him a free ride to a more conservative leaning school.

        If the WaPo pays him even a fraction of the damages he is seeking he will also be set for life with a trust fund. Plus I bet you he has any high profile job he wants after graduating college with any right of Stalin news outlet.

        1. And he isn’t just suing WaPo. Some outlets will settle. Cash in hand, he’ll be able to stick it to Chief Stolen Valor.

        2. This will keep at least blatant retaliation at bay and will probably score him a free ride to a more conservative leaning school.

          Why do you assume he would prefer a fourth-tier or unaccredited, nonsense-teaching, censorship-shackled, science-disdaining conservative school?

          Perhaps his parents forced him into backwater religious schooling and he can’t wait to escape Kentucky for a strong, liberal-libertarian campus and a modern, successful community.

          I know the red hat suggests he might be a willing goober, but at this age he doesn’t get to call his own shots.

          1. I take it you aren’t familiar with Hillsdale or The University of Dallas?

            1. Hillsdale? Harvard for yahoos?

              University of Dallas? ‘We’re unranked nationally but we just slipped past California Lutheran in a regional ranking, which isn’t bad for a conservative campus?’

              Why didn’t you mention Biola, Ouachita Baptist, Regent, Liberty, or Wheaton?

              1. Oh, so you call it Harvard for Yahoos, it must not be a good school.

          2. Cuckland manages to bottle up all of his rage nicely in this little post.

            1. Cuckland manages to bottle up all of his rage nicely in this little post.

              Certainly puts his 6th-grade education level on display.

          3. “Perhaps his parents forced him into backwater religious schooling and he can’t wait to escape Kentucky for a strong, liberal-libertarian campus and a modern, successful community.”

            I know, right? But even strong, liberal-libertarian campuses have their issues. For example, Harvard has a professor that is actually defending Harvey Weinstein! But fortunately, Harvard is dealing with this problem as we speak.

        3. “I wouldn’t call it ‘dumb’. Lacking legal merits? Maybe. Dumb. Not really.”

          REALLY really dumb.

          “Sue the deep pockets company that probably has a lot of internal documentation they would rather keep out of the public limelight.”

          People with deep pockets can afford really good lawyers.

          “Paint the kid as a victim of a liberal lynch mob (which he is) and keep him visible in the news cycles.”

          Use him in a way that isn’t good for him or his future interests. Say, isn’t that what you’re accusing those darn liberals of doing? They did it, so it’s ok if the “other side” does it, too?

          ” probably score him a free ride to a more conservative leaning school.”
          I wouldn’t bet on it.

          “If the WaPo pays him even a fraction of the damages he is seeking”

          0/100 is a fraction. That’s the best possible fraction he’s going to get… there’s a chance for negative numbers.

          “Plus I bet you he has any high profile job he wants after graduating college with any right of Stalin news outlet.”

          Bringing a loser lawsuit substantially reduces his odds. He had a better chance of this as a victim than as a greedy opportunist with a bad lawyer.

  22. i’m surprised they didn’t bring a false light claim, too.

    1. Why stop there? Negligent infliction of emotional distress. We’re just naming legally or factually baseless causes of action, right?

  23. “‘They emphasize, for example, that who got in whose face between Sandmann and Phillips is a matter of opinion rather than a verifiable fact.”

    That’s actually the only thing they emphasize, and that isn’t a cadre of legal experts. That’s two lawyers who represent media as defendants. What are they gonna say?

    “It is also not too clear who the “unbiased” witnesses (is there such a thing?) are that the Post should have interrogated”

    Um, yes there is such a thing.

    “To this day, the Internet debates what exactly happened on that day.”

    How is this a defense?

    1. There might be some instances where “who got in who’s face” is a matter of opinion, but when one guy is standing there minding his own business, and the other comes from afar and gets in the first guy’s face, it’s pretty clear who got in who’s face.

  24. “What happened during the encounter is a story that developed over several days, with more video footage and testimony surfacing along the way”

    Hot take, Irina. I wonder why the Washington Post never retracted any of its articles as the story “developed”?

    1. Yeah, it developed over, like a day, and they were still running pieces that fit their narrative once facts were available. WaPo can’t credibly claim it was ignorant of the full length video when it was made available via the same medium they used to locate the original.

      1. The Washington Post reported on the full video here.

        1. And still not a single retraction.

          1. Well the retraction demand was issued on February 14th (like, less than a week ago), so it would be unusual if the WaPo retracted an article prior to it being requested. That may present some serious legal problems for Sandmann’s attempt to get punitive damages under Kentucky law (setting aside the actual malice problem).

            But what is there to retract? They’ve issued repeated articles about all the videos, and statements by a person. If the WaPo had an obligation to rebut statements by that person, they’ve already reported the facts that would rebut that person. No retraction necessary.

        2. Days later, with no retraction, and only to discuss how complicated it all is, and how the full video makes it clear that this was all so very, very complicated. They weren’t interested in how complicated it all was when they first reported the story.

          If you report that a video allegedly shows a man raping a woman, even though a full video is available showing that this is actually a sex scene in a play and, when the full video makes the rounds (without the assistance of your rag), you simply say the video offers a more nuanced view, that’s defamatory.

  25. FWIW, the interesting issue here is false light

    1. What do you think of the complaint? To me it doesn’t seem to state the issues very clearly.

      1. I agree. It’s a press release, and i hate press release complaints.

        If I represented them, I would focus on false light and tell that story: that the Post selectively discussed facts regarding this non-public figure (at the time) plaintiff, which cast him in a false light, negligently as they could have held off until they had more of the facts.

        And I wouldn’t ask for quarter bil in damages, of course.

        1. He’s the same lawyer that who led a $750 million defamation lawsuit against CBS by JonBenet Ramsey’s brother. CBS settled the suit for an undisclosed amount.

          He also handled the settlements from NBC & CNN for libeling the security guard Richard Jewell in the Atlanta Olympic bombing.

          1. So what? This case is not worth $250 million. Sandmann’s damages aren’t anywhere near that, and it just makes you lack credibility in court when you do that.

            1. I don’t think they expect it to go to court. They expect the WP to agree to a settlement.

              Because to most of the country a large corporation defaming a bunch of high schooler’s on a field trip looks like a complete douche move. Particularly when there’s actual video evidence that supports the teenagers version of events.

              If this goes to court it’s going to be in front of a group of jurists from Kentucky. What does your law expertise tell you about large out-of-state corporations getting caught harming local teenagers?

              1. 1. We will see if it stays in Kentucky. Not only is the paper in DC, but the events took place there and many of the witnesses are there. I could VERY easily see this case being transferred to the District.

                2. It is somewhat difficult to get defamation cases past a motion to dismiss these days. Judges are very skeptical and want some detail in the pleadings. If I were these lawyers, I would focus more on that motion and less on the press release aspects of this complaint.

                1. “1. We will see if it stays in Kentucky.”

                  Ok, let’s assume it stays in Kentucky. Then what do you think happens?

                  “2. I would focus more on that motion and less on the press release aspects of this complaint.”

                  I think you make a good point. However, I expect they have a team working on this.

                  1. I think there is a significant likelihood that it gets dismissed, especially if they press their defamation theory. You can’t argue the “gist” of something is defamatory. They either need to have made a false statement of fact about the incident, which needs to be specifically pleaded, or to have made a true statement that carries a false and defamatory implication.

                    I think there is somewhat more plausibility to a false light claim on these facts, but it really needs to be developed more.

                    Finally, I will just reiterate– there are legally sufficient grounds for a transfer here. It’s not impossible for it to stay in Kentucky, but it is highly likely to get moved.

  26. I would speculate that the WaPo’s defense was that they were covering a fast-breaking story, interviewing participants, but they were no mre endorsing the people they quoted than when they quote Putin or Trump.

    The plaintiffs will, I suppose, point to some of their subtle and not-so-subtle framing (including headlines).

    1. It’s interesting to note that when they quote Trump, they always go out of their way to add editorial comments such as “The President offered no evidence for his assertions.”

      Weird how they just plain forgot to add that qualifier when reporting on the allegations of a well known activist, liar, and valor thief.

      There wasn’t the slightest bit of hesitation on their part to parrot Phillips’ claims as obviously factual.

  27. “Over several days” Horseshit. The 2 hour long video by a bunch of racist assholes was available online the entire time and it VERY clearly shows Phillips approaching the boys, not vice versa. Thus a salient fact that the WaPo had to outright ignore to craft their narrative was clearly present.

  28. I always wonder about the wisdom in asking for a ridiculous amount of money, as has been done in this case. It makes the plaintiff look delusional and like a greedy bastard; I think he wants the public to see him as a victim, right?

    I’m making a completely non-partisan point. . . . I’ve seen liberal (alleged) victims ask for crazy-high damages just as often as conservative (alleged) victims. But what is the benefit to the plaintiff’s lawyers–they look incompetent–or to the plaintiff? I’m not seeing anyone on that side of the equation coming off looking good in any way.

    If you’re gonna go overboard re a damages estimate, why not go whole-hog? “My client has been damaged in the amount of a jillion dollars. . . . No, wait! A kajillion dollars!!!”

    1. I would speculate two potential benefits:

      1. Asking for an implausibly huge amount increases the odds you’ll get media coverage/attention. If he had sued for $100K nobody would be discussing this at all.

      2. When it comes to punitive damages, there seems to be precedent that if you can convince a jury the defendant is despicable enough, they’ll happily award you an implausibly high amount just to “send a message.” See: Gawker, tobacco company lawsuits, etc. To win this suit at all, they have to convince a jury that the Washington Post deliberately tried to ruin the lives of innocent teenagers to score cheap political anti-Trump points. A jury sympathetic to that general idea is probably about as likely to award $250M as they are $50M.

      1. “I always wonder about the wisdom in asking for a ridiculous amount of money”

        It’s all about the math and the basic game theory.

        If they had asked for $5 million an accountant would have asked a lawyer what the odds of having to pay it out. If the lawyer said 40%, the accountant would have done the math. 60% chance of $2 million for the legal fees and worst case of 40% chance of $7 million. That’s just a cost of doing business.

        However for $250 million, the lawyer says there’s only a 10% chance of winning, assuming we have to appeal it at least once. Now the accountant has to assume 90% chance of $4 million for the legal fees but a 10% chance of $254 million.

        Corporate accounting spends about 30 seconds looking at that and tells the lawyers to start negotiating a settlement in the single digit million range.

        1. Sure, when you control all the numbers it makes perfect sense. If he’d asked for $1B and you arbitrarily assign that a 5% chance of winning, he’s leaving ~25M on the table. This entire analysis is stupid, anyway, since punitives are going to be capped. santamonica’s point is that the $250M doesn’t materially increase the payout, but may hurt the plaintiff’s credibility with the court and jury.

          1. You make it up in volume.

      2. 1. This is preposterous. If someone sues the WaPo for defamation, it’s a story regardless of the amount of money. And there’s a huge gap between $100K and $250M. But if you’re right, why did they stop at $250M? Wouldn’t they get more coverage if they asked for $100B?

        2. Again, if this is true the lawyers made a colossal misstep. Why not $300M? Why not $400M?

  29. What do right-wingers who like this Kentucky kid’s chances figure Barack Obama should have recovered from the birthers?

    Lies, racism, belligerent ignorance . . . the punitive damages prospects seem strong.

    1. You certainly showed up all those people who opposed Obama’s lawsuit against the prominent birthers.

      1. One more reason to criticize and dislike Barack Obama . . . he lacks the legal insights and mindless greed of the kind of people who send their children to Catholic schools in Kentucky or file yahoo press releases as complaints in federal court.

        What a loser.

        And a Muslim. And a socialist. And a Kenyan. And a communist.

        Carry on, clingers. Reject Obama, embrace Trump, and wonder why you become increasingly irrelevant in American life.

        You’ll always have friends at the Volokh Conspiracy, though.

    2. I assume you mean Sid Blumenthal

      1. “Sid Blumemthal”? Nice, I’m one “Gruber” reference from a BINGO!

    3. Given that Obama was the original birther, nothing.

  30. No, it’s not “a matter of opinion” as to who got in whose face. The video shows Sandmann NOT MOVING, and PHILLIPS MOVING TO SANDMANN.

  31. Why is an easily avoided and often unprovable standard (malice) accepted as a legal basis?

  32. By way of comparison, this very blog has on multiple recent occasions posted on incidents involving altercations, for example an altercation between anti-abortion protestors and a professor at the University of California, Santa Barbara a few years ago. Commenters took the protestors’ side. I don’t recall anyone waiting until not only the professor but every witness who might be favorable to the professor was heard from before doing so.

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