Free Speech

Judge Rejects Nicholas Sandmann's Claim Against Washington Post

|The Volokh Conspiracy |

The opinion, from Judge William O. Bertelsman, is here; I hope to be able to blog more about it tomorrow, but for now I just thought I'd pass it along. Check out the table on pp. 30-36, where the court lists the statements mentioned by the plaintiff and briefly explains the court's reasoning for each statement.

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  1. I have to say that there are several clear statements of fact in the first few lines of the table that the judge labeled as “Subjective”. The facts of the matter are unquestionable, since we have the video.

    Phillips approached the group of teens and went up to them. The statements by the Washington Post clearly state the opposite. Lines 1,2, 10, 11, and 14 are clearly false as can be seen in the video. It states that Sandmann did something that he obviously did not do. Phillips approached Sandmann. Phillips entered into the crowd. Phillips did the confronting.

    Several other statements are labeled as “subjective”. However, in many of these cases, there is no method of bringing the claims into line with reality.

    By breaking the statements into a line by line analysis, the judge eliminates the entirety of the piece. By omitting that Phillips was the aggressor and also omitting the clearly racist slurs from the Black Hebrew Israelites, it creates an entirely fictitious set of events. At the very least, this clearly falls under “False Light”.

    The boy received death threats and was under investigation for expulsion from school due to an article that was clearly false. I simply cannot see how this is not libel.

    1. When statements of fact (“Person A did X”) become matters of opinion, you know the post-modernists have finally won.

    2. ” At the very least, this clearly falls under ‘False Light'”

      Then it’s a shame that Sandmann’s lawyers didn’t sue for “False Light”, choosing to put all their marbles into the defamation claim that they had no hope of making.

      “The boy received death threats and was under investigation for expulsion from school due to an article”

      This chain of causation is tenuous, at best. How did you establish that the death threats came about because of a newspaper article? Due the school’s leaders all subscribe to this out-of-state newspaper? I mean, they had more than a dozen representatives physically accompanying the group of students… are they ALL untrustworthy?

      1. Look, when somebody reports that you “taunted” somebody, when the recording shows you standing their silently, that’s not opinion, that’s a false factual assertion.

        It might be opinion if he’d actually been talking to the guy, but silent?

        1. Always great to see Trump fans arguing for exacting, intense legal remedy in the context of false statements . . . mostly because it vividly demonstrates how far most right-wingers have strayed from self-awareness in appeasing (when not embracing) bigotry, backwardness, and mendacity.

          Carry on, clingers. Haplessly, as always, in modern America, of course.

        2. The articles in question didn’t say that Sandmann taunted anyone.

          1. details, shmetails.

            Are you trying to get in the way of a good outrage?

      2. Chain of causation is not tenuous. You can state that the Post was not entirely to blame since there were numerous articles repeating similar falsehoods, but by that logic, no one is responsible. That is a clearly absurd result.

        1. “t by that logic, no one is responsible.”

          Whatever idiots made death threats against a kid for wearing a hat, that’s who’s responsible.

    3. He lost because of his politics.

      1. He lost because asking for a quarter billion dollars made him look greedy, and because he didn’t actually have much of a case.

        1. I wasn’t aware that the claimed scope of damages is considered in a motion to dismiss. Either there is some serious case law on the subject that you can cite or you’re arguing the judge ignored the law and dismissed the case because of evidence not in the record.

          1. “I wasn’t aware that the claimed scope of damages is considered in a motion to dismiss.”

            Well, then now you’ve learned that proving actual damages is one of the elements a defamation plaintiff normally has to prove.

            https://www.law.cornell.edu/wex/defamation

            1. Obviously, there is a punitive damages claim in there, too. And it’s hard to argue that WaPo’s actions weren’t outrageous, even if this decision stands.

              1. Some people are rather easily outraged, so, sure, the WaPo’s actions were “outrageous”.

                1. Seriously? It’s OK to ruin a kid’s life, when you only evidence is an obviously clipped internet video? With a known provocateur in the frame?? When you are a media savvy company???

                  This isn’t 1988, we know how selective video editing works nowadays (and even back then, I suspect WaPo would have interviewed a neutral eye witnesses on principle).

                  1. As I said, some people are easily outraged. Some might even be said to be LOOKING FOR opportunities to be outraged.

                  2. Seriously? It’s OK to ruin a kid’s life,

                    True fact: today Nicholas Sandmann is living in a cardboard box in a ditch under a highway overpass. He is not in school and has no job, and has lost three limbs — two to frostbite, and one to a pack of rabid hyenas.

                    1. And his dog died. Don’t forget that.

                    2. Courts need to smack down the brazen liars in journalism. Libel isn’t wrong to them it’s a parlor game.

                    3. ML wants our speech laws to be more like Europe’s, except when he doesn’t.

                    4. So because he isn’t literally dead, it’s okay to defame someone and cause them harm.

                      This is why partisanship is on the rise. Because you can’t even get on board with denouncing something everyone and their dog knows is wrong.

                    5. No, partisanship is on the rise because people like you are so far gone you assume everyone secretly agrees with your take and is lying about it.

                    6. If you seriously don’t believe what WaPo did is wrong then you are an immoral person.

              2. Punitive damages seem almost certainly a non-starter since it’s a matter of public interest requiring proof of actual malice.

                1. How do you justify calling Sandmann a public figure, or the event in general being a matter of public interest?

                  The defamatory statements created the publicity.

            2. No, he doesn’t in this case. The judge quotes the actual law in his judgement. Anything that “holds a person up to public scorn” is libel per-se, irrespective of actual damages. That is one of the least intelligible things in this lawsuit, as just a few pages later, he states that the public scorn and ridicule Sandmann received was irrelevant.

      2. You need to work on consistency for your wingnut talking points.

        “It’s a traitor appointed by a Democrap President.” Not “because of his politics”.

        Did you miss the morning conference call?

        1. “Trump Law” and a two tiered justice system is very obvious and undeniable.

    4. I found out by reading the CBS news account which even today reports the events as:

      “Sandmann, a student at Covington Catholic High School in Kentucky, was part of a group of anti-abortion teenagers who confronted Philips, a veteran, while he performed a Native American song on the steps of the Lincoln Memorial.”

      And described Sandmann as “smirking” at Philips.

      https://www.cbsnews.com/amp/news/covington-students-250-million-defamation-lawsuit-against-the-washington-post-dismissed/

    5. The first four items you list are the Post quoting opinions expressed by Phillips and someone else.

      You might also want to read pages 7 and 8 of the opinion, which discuss how possibly defamatory statements against a group are treated under KY law. Short version: many of the statements are not about Sandmann, so they can hardly defame him.

      1. That is incorrect. By the law, even if the person is not named, if they are readily identifiable it can still be libel against them specifically. Sandmann’s face was on the cover. Sandmann was directly identifiable and identified as “the smirking kid” internationally. Anything about “the students” is directed at the one person named and identified, Sandmann.

        By breaking down the article line by line, the judge ignored this extremely basic and salient fact. Something that any literate layman can understand. Given the judge’s experience level, I cannot believe that it was not a deliberate omission.

  2. Apparently, the definition of words (like ‘accost’) are subjective opinions. Everything is an opinion, there are no facts

    1. ” Everything is an opinion, there are no facts”

      That’s an opinion… (All together now) … not a fact.

  3. If the judge applied the same legal standards to this as most liberal judges apply to Trump, it would be the perceived intent of what mattered, no matter the rule of law. In which case the Washington post owes Sandman damages.

    1. >If the judge applied the same legal standards to this as most liberal judges apply to Trump,

      Arguably, that’s what happened here….Sandman was wearing a MAGA hat, therefore was the aggressor in the liberal judge’s world view.

      1. “.Sandman was wearing a MAGA hat, therefore was the aggressor in the liberal judge’s world view.”

        This is at least as valid as the competing theory that he was wearing a MAGA hat, therefore his is the aggrieved victim.

        Guess it depends on what your appreciation is for people who wear hats that say America isn’t great.

  4. Since normal words used in Court like ‘taunted’ , ‘He blocked my way and wouldn’t allow me to retreat’ , ‘smirking’ , ‘ the young men who confronted him’ , ‘ they suddenly swarmed around him’ . Descriptive words and phrases used in normal language are just ‘ opinion’ . No, actually they are lies perpetrated on the Public. Fake News, indeed. Fake Justice to go with it. WTF

    1. I can see if there was a matter of degree. “He spoke” versus “He accosted” is subjective. However, there are clearly situations in which the latter is wrong. If I pass by you and say “Good morning”, no reasonable person can say that I “accosted” you. Saying so is false.

      1. On the other hand, if you write “the group taunted me” and I respond with “I was in the group and I was silent. Pay me a quarter-billion dollars”, you’d probably expect a court to laugh that off.

    2. :No, actually they are lies perpetrated on the Public. Fake News, indeed. Fake Justice to go with it. WTF”

      Why do clingers use random capitalization? Are they illiterate, or is this an affectation among poorly educated bigots, similar to gang signals?

  5. Waiting for Lathrop to tell us how this means that § 230 of the CDA needs to be repealed immediately.

    1. Your wait is over, Nieporent.

      As you (a lawyer, and self-proclaimed libel expert) can discover by reading these comments, typical internet users are overmatched by the task of recognizing defamatory falsehoods. They don’t know what defamation looks like, and they can’t distinguish a falsifiable claim of fact from opinion. As these comments show, they still can’t do it even after a judge gives them a detailed explanation.

      That means that unless internet publishers restrain them, commenters like these will inevitably and unknowingly publish false and defamatory accusations on the internet. The only practical way to make that restraint happen is to require internet publishers to read everything before publishing it.

      Because of Section 230, there is no meaningful constraint against libel in the current internet business model. It is based on a presumption that every libel will be published, and then some will be taken down after doing their damage. That mocks centuries of libel law, and infuriates the public. They have responded world-wide with calls for government censorship. It is astonishing that a self-proclaimed champion of speech freedom such as yourself does not see the danger in that.

      Repeal of Section 230 is by far the most practical and least dangerous way to supply the needed constraint. Censorship would not work as well, and would pose a far greater danger to speech freedom.

      1. “That means that unless internet publishers restrain them, commenters like these will inevitably and unknowingly publish false and defamatory accusations on the internet.”

        Oops. You got this one 180 degrees wrong. What you see is people believing that something is defamatory when it was not. So if the ISPs hire such people to police content, they’ll be deleting and blocking content that is NOT defamatory because they’re darn sure that it is.
        Not sure why you think having non-defamatory content blocked because someone thinks it is (or might be) defamatory, but this is a service that I continue to not want my ISP to provide.

        1. No, Pollock, I have it right.

          What you see in the comments are people who don’t know the standards for libel. Not knowing, they substitute whatever notions fit their preferred outcome, one case at a time. This time, their preferred outcome was that something which is not libel be punished as libel. Next time, if they want to publish something which is libel, they will again substitute their own made-up “standards.” What else can they do? In every case, their libel “determination” will be based on what content they prefer to see published, or not. It’s the only guide they have, or want to have.

          And by the way, you should want your internet publishers (not your ISP) to block your intended publications, whenever an editor trained to recognize potential libel thinks it’s needed. Doing that is indeed a service to contributors, which reduces the chance they will be subjected to expensive legal adventures.

          I suggest that in your case it would probably be more accurate to say you want to see the practical abolition of libel as applied to the internet. If so, you are in plentiful, but foolish, company.

          1. “What you see in the comments are people who don’t know the standards for libel.”

            True enough. The problem is, you want to take people with unqualified opinions, and put them in charge of censoring the “defamation”. Which remains stupid, no matter how strongly you feel about it.

            “And by the way, you should want your internet publishers (not your ISP) to block your intended publications, whenever an editor trained to recognize potential libel thinks it’s needed. ”

            No, I shouldn’t, because I’m more qualified to determine defamation.

            “I suggest that in your case it would probably be more accurate to say you want to see the practical abolition of libel as applied to the internet”

            I suggest that you are extremely poor at summarizing other people’s opinions.

            1. James Pollock, my guess is that you are notably less qualified as a defamation expert than would be any lawyers a good editor would use to review tough cases. And I don’t have to guess, because I read what you write here, to know that you are notably less qualified as a reader than good editors are. So indeed, you would be well-served by a good editor trained to recognize potential libel.

              As for summarizing your opinions, you read my comment which said, “. . . it would probably be more accurate to say you want to see the practical abolition of libel as applied to the internet.” In none of your commentary that I have seen, have you ever shown any indication that you take cognizance of what I meant by, “practical.” Which shows you discount to zero any need to constrain libel by making publishers jointly liable with their contributors—the only efficacious and practical constraint on libel known to the customary law of defamation. (I excluded criminal libel; in those cases jailing perpetrators might prove a practical constraint).

              Anyone willing to argue as you do, is, willy-nilly, calling for abolition of libel as applied to the internet. If you insist that is not your opinion, please show by what means anonymous, judgment-proof authors of defamation are currently being constrained. At a minimum, would-be authors of defamation are being constrained in ink-on-paper publishing at a rate multiple orders of magnitude greater than on the internet.

      2. That mocks centuries of libel law, and infuriates the public. They have responded world-wide with calls for government censorship. It is astonishing that a self-proclaimed champion of speech freedom such as yourself does not see the danger in that.

        I dunno about “worldwide,” but since § 230 doesn’t apply worldwide, it’s not really relevant to this discussion. If we limit the discussion to the U.S., you are the only one calling for government censorship.

        As you yourself noted with puzzlement a week or two ago, the current calls are for Internet platforms to be forbidden from engaging in screening.

        1. “If we limit the discussion to the U.S., you are the only one calling for government censorship. ”

          Give him partial credit for that one. Lots of people call for the government to censor things that they (personally) don’t like, while whining that things they DO like were censored by somebody else.

      3. “Because of Section 230, there is no meaningful constraint against libel in the current internet business model. ”

        Except that any speaker can still be sued for libel. So your entire comment makes no sense. Furthermore, where the speech is actually credible or should be, the speaker is frequently the publisher.

        1. M L, meaningful constraint against libel requires holding publishers jointly accountable with their contributors. That was a time-honored and thoroughly tested principle during the era of ink-on-paper publishing. It applies with yet-greater force to today’s world of internet publishing.

          The publisher generally has assets to defend. Today’s world-wide libel author may have no assets at all, except access to a keyboard at the local library. Such an author has nothing to defend, and thus no motive for self-constraint.

          I doubt you needed that explained to you. If you did not, your argument is less than forthright. Or maybe you are one among the millions of folks who think the internet is dandy precisely because of the opportunities for unpunished defamation it affords.

          1. People don’t take anonymous internet comments seriously. There are millions of deranged illiterate comments on YouTube but it’s equivalent to the mentally ill person ranting on the street corner. And everyone knows it and treats it as such. Moreover, everyone knows that internet posts are likely to be intentionally satirical. This is a source of great hilarity and value.

            People also don’t take non-anonymous statements seriously, except to the degree they personally know the speaker and deem them credible.

            So, there’s a big difference. Anonymous internet posters with no assets don’t get much of a voice or credibility. They don’t get to decide what gets posted on the front page of WaPo. WaPo does and they love to post false and misleading statements.

            So this system seems to be fine but there is definitely an issue with abused of Section 230. When an “interactive computer service” starts to engage in selectivity about what they are publishing, and to review content for “truth” and hold themselves out as arbiters of “truth” then they should not have immunity.

            1. People don’t take anonymous internet comments seriously.

              Of course they don’t. That’s why almost everyone uses an alias, and no one minds getting doxxed.

    2. By the way, Nieporent, thanks for letting me rent space in your head.

    3. I’m wondering if Chevron deference might allow another avenue.
      Certainly, the term “interactive computer service” could mean content neutral platforms i.e., you have to pick between immunity and editorial voice.

      Go through notice and comment rulemaking, etc. The idea of cutting Google, Facebook down to size is popular on both the left/right + traditional media companies will likely support for business reasons.

      1. “Certainly, the term ‘interactive computer service’ could mean content neutral platforms i.e., you have to pick between immunity and editorial voice.”

        So, deleting spam would cost “interactive computer services” their liability shield? Sure, what possible bad side effects could possibly come from THAT?

      2. I’m wondering if Chevron deference might allow another avenue.

        Certainly, the term “interactive computer service” could mean content neutral platforms i.e., you have to pick between immunity and editorial voice.

        No. Interactive computer service is statutorily defined with no ambiguity to mean exactly the opposite of that.

        1. I don’t see where you get that. Here is the definition:

          (2)The term “interactive computer service” means any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server, including specifically a service or system that provides access to the Internet and such systems operated or services offered by libraries or educational institutions.

          Companies that are creating content / exercising their editorial voice are not merely “enabl[ing] computer access by multiple users to a computer server” nor merely “access to the Internet.” Put differently, the law was created to protect AOL, not the NYT.

          1. Nieporent defines stuff funny. Apparently, he is a fan of zealous advocacy which gives no quarter. If his case requires a sky blue horse, he asserts all horses are sky blue. During discussions of speech freedom and the internet, he claims constantly that private editing is government censorship. And then comments as if everyone agrees with him, just as if there were nothing controversial or idiosyncratic in that outlandish assertion. I actually admire his ability to keep a straight face while doing it.

        2. I think he intends to use rulemaking like the ATF did recently to define a persons finger as part of a firing mechanism so they could redefine “single pull of a trigger” as “multiple pulls of a trigger” to make bump stocks machine guns. Which also makes training your finger to pull triggers really fast a machine gun too.

        3. “No. Interactive computer service is statutorily defined with no ambiguity to mean exactly the opposite of that.”

          Mostly right but the law should be reformed.

      3. Notice and comment rulemaking by whom? As far as I know, Congress hasn’t given any federal agency authority to create regulations about what kind of content moderation websites can and can’t institute.

        1. There is considerable debate about just what level of regulation authority that FCC has for Internet.

          Specifically related to content moderation, there’s CIPA. Not EXACTLY what you’re referring to, but in the ballpark.

  6. Wow. Just wow.

    Well.

    Let’s just hope karma does exist and WaPo (and other narrative constructing troubadours like it) gets its comeuppance.

    1. Wow just wow

      Let’s hope that karma comes to those on this site that speak of white children and black children differently. There are plenty of examples here.

      1. Nice non-sequitur.

        I would love to see a cite about which among the regulars remotely speaks this way. Aside from the racist progressives here who all they do is project their lunacy. Say like Arthur.

        1. Look up Trayvon martin on this site

          1. Just use the keyword “Obama’s son”, that will pull up that article.

          2. I’m a bit lazy. Why don’t you just give me a link to a few defenders of George Zimmerman who argued in other contexts that it was perfectly OK for white guys to knock black guys (who were not an imminent threat) to the ground and start punching their heads into concrete sidewalks. I’ll wait.

  7. Far be it from me to second-guess the judge on what it takes to prove defamation under Kentucky law. Apparently in this case there simply isn’t enough even to go to a jury.

    It’s hardly any wonder that, since winning a defamation case is difficult, public officials and attorneys have to swear that they haven’t used alternate means of dispute resolution. From the oath of office:

    “since the adoption of the present Constitution, I, being a citizen of this State, have not fought a duel with deadly weapons within this State nor out of it, nor have I sent or accepted a challenge to fight a duel with deadly weapons, nor have I acted as second in carrying a challenge, nor aided or assisted any person thus offending”

    https://apps.legislature.ky.gov/Law/Constitution/Constitution/ViewConstitution?rsn=263

    1. Time for an update.

    2. It’s all past tense. Apparently, it’s perfectly OK to duel once you are in office.

      1. Not if you want another office. Or, I think, a second term.

        1. Not to mention if you lose (the duel, I mean, not the election).

  8. Some of the decisions in the table seem…overbroad.

    IE “What constitutes taunting is considered a matter of opinion”
    Or “What constitutes “being surrounded” is a matter of opinion.”
    Several other phrases are overbroad in terms of their use of “matter of opinions”

    If you put it all together, you could say something absurd like “Obama, Pelosi, and Clinton accosted Trump, surrounded Trump, then proceeded to mock, taunt, and physically intimidate him, while blocking his ability to leave”

    And it would all just be “matters of opinion”, even if it was a total lie.

    1. You could say a lot worse under this judge’s proposed rule…Obama, Pelosi, and Clinton are all public officials, and therefore, are expected to put up with a lot more (both legally and by tradition)

      Sandmann is just a random kid.

      1. 2/3 of your “public officials” are not public officials.

        1. So clinton and obama dont have current books and tours out?

          1. Feel free to expand on your theory that having a book makes you a public official.

        2. The term is “public figure” and definitely includes all involved. I’ve read enough of your comments to say that I know you know it. Don’t deliberately misinterpret things to ignore the point.

  9. Meh. The proper remedy for this is that fake news outlets like wapo and the other journalists who published this gossip lose all credibility, which they pretty much have.

    1. If you find their work less than thorough and accurate, don’t pay for it.
      This is the approach I intend to use.

  10. I’m not going to test this opinion by expressing “opinions” about Jeff Bezos, owner of the Washington Post. There’s higher legal protections for the elites than for the normies.

    Thus, I shan’t mention that there were headlines and stories in reputable news outlets saying “Bezos Exposes Pecker.” You’ll have to Google that to get the context, but I’m hoping nobody is interested in context.

    1. There’s higher legal protections for the elites than for the normies.

      Not in defamation law.

      1. I mean ability to afford lengthy litigation.

        And I wasn’t referring to the official rules on paper but to the ability of the powerful to wield these rules, in practice, for their benefit.

        1. “I wasn’t referring to the official rules on paper but to the ability of the powerful to wield these rules”

          This is an argument that leftists love. Are you going squishy on which team colors you want to wear?

          1. It would be statistically unlikely for a leftist to be wrong 100% of the time – it would require too much hard work, for one thing.

            Whose team colors do *you* wear – since I presume you’re engaging in massive projection here?

            1. (Though of course I love your assumption that suspicion of power is a hallmark of leftism. Your naivete is cute – cuter than a button.)

  11. I hope to see your analysis, professor.

    What I get stuck on is how something like “taunting” can be deemed a matter of opinion in the defamation context, but could be treated as provable fact in a criminal trial. (I don’t know that “taunting” is the element of any crime, but not so different from “incitement.”)

    1. Crispy, “provable fact,” seems to mean something different in a trial proceeding, “matters of fact,” context, than it does in libel law. If I say wearing a MAGA hat is taunting, and a Massachusetts jury agrees, then the fact is decided. If a Kentucky jury disagrees, that also decides the question of fact. To someone who knows about both cases, that looks more like differences of opinion, or maybe bad jury instructions.

      AFAIK, it’s not that way in a libel case. Defamatory fact claims can be exampled by publishing following the defendant’s acquittal, that he was found guilty. It is a starkly binary test, with almost no wiggle room, except with regard to whether an admitted fact is actually defamatory. But in the example just mentioned, that is not even at issue. That is an example of libel per se, a class of cases where the nature of the false allegation is so grievous that both defamation and damages are presumed after the alleged fact is proved false.

      1. Stephen, I think CB was referring to the table at the end, which states that statements were subjective and could not possibly be libel under any circumstances (that is the standard for pre-trial dismissal, that all facts in the claim are assumed true). However, many of the “subjective” statements have objectively false statements.

        The clearest example is “swarmed”. Yes, “swarmed” is subjective compared to “surrounded”. However, if you push into the crowd yourself, which is what happened, the term is objectively false. From the clear video evidence, the statement that the boys swarmed around Phillips is clearly a falsehood. They stood still. He moved into their group. Therefore, saying that it is “subjective” and can never be libelous is incorrect. That is why I don’t understand this judgement. By dismissing the case before any evidence is heard, the judge not only says that the article is not libelous, but CANNOT be libelous.

        To do this, he makes a huge number of findings “of fact” in the judgement, which he is not supposed to do pre-trial. Effectively, the entire trial has been held in a pre-trial motion, with no evidence heard aside from the allegation and the motion to dismiss. That’s absurd.

        1. Ben, I disagree with you that the term is objectively false, even in the context you posit. I think an interpretation that, “swarmed” = “surrounded” = “was surrounded by,” ought to be admissible as showing gradations of opinion which apply to this circumstance, and especially with an eye to taking forthright account of different points of view. I suggest that by insisting on your own point of view, you may be inadvertently demonstrating the operative role of opinion in the evaluation.

          But leaving that aside, in no circumstance that could apply in this case, would a false statement alleging “swarmed” prove defamatory. Even if the judge erred on the point you contest, he was still right to dismiss the case for lack of alleged defamation—unless you can find something else.

          1. Stephen, please read your own post. Did you seriously state that reversing the subject and direct object of a statement to completely reverse the action cannot be false?

            That is the problem that I have. You have actors and recipients. Reading the article, there is a clear story presented. A story where a group of young men surrounded and threatened an elderly veteran. A story that is wholly fictional.

            However, that is immaterial. This is a pre-trial hearing. The judge is supposed to assume that every claim made by the plaintiff is 100% true. The only condition in which is can be dismissed is that even if everything is true, it cannot be libel. What the judge has found is that is that the statement “Group A swarmed person B” cannot under any circumstances be libelous. That is a clearly absurd conclusion.

            Secondly, per the Kentucky law that was quoted by the judge, statements that would normally cause someone to endure public scorn are libel per-se. Anyone who claims that these claims did not hold Sandmann up to public scorn needs to have their head examined. The judge ignores this fact and even says that the real damages that Sandmann endured were irrelevant.

            Finally, the Judge’s assertions that statements attributed to the group cannot be actionable are false since Sandmann’s face was the one on the front page. He was readily identifiable and identified as the “ringleader”. He again quotes the relevant law and ignores it. Identification by picture is just as damaging as identification by name.

            By breaking the article down into line by line and stretching the dictionary past its limit, the judge came to a conclusion that is absurd, that an article presenting an objectively false story is somehow a completely subjective set of opinions that could not be libelous under any circumstances and thus is not worthy of even being seen by a jury.

            1. Ben, your argument would end public political life. Every instance of adverse public reaction to a story published about someone would be turned into a case of defamation. That would be true even if there was also an equal and opposite reaction in favor—as there seems to have been in this case. As acknowledged opposing reactions show, the case is about conflicting opinions. For contrast, return to my initial example—do you suppose there would be conflicting opinions about a published report which falsely turned a jury verdict on its head?

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