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Free Speech

Sixth Circuit Affirms (2-1) Dismissal of Nicholas Sandmann's Libel Lawsuit Against the N.Y. Times and Others


Some excerpts from Sandmann v. N.Y. Times Co., decided yesterday by the Sixth Circuit, in an opinion by Judge Jane Stranch, joined by Judge Stephanie Davis (for more details, read the full opinions):

On January 18, 2019, then-sixteen-year-old Nicholas Sandmann and his classmates had an interaction with a Native American man named Nathan Phillips by the Lincoln Memorial in Washington, D.C. Video of the incident went viral, and national news organizations, including the five Defendants (Appellees, or News Organizations) published stories about the day's events and the ensuing public reaction. Sandmann sued, alleging that the Appellees' reporting, which included statements from Phillips about the encounter, was defamatory…. [We agree with the district court that] the challenged statements were opinion, not fact, and therefore nonactionable….

Videos of the confrontation between a white male teenager in a "Make America Great Again" hat and an elderly Native American man went viral on social media. National media, including the five News Organizations, covered the incident at length over the following days, with most outlets quoting a statement Phillips made to the Washington Post:

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. 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 statement and others like it asserting that Sandmann blocked Phillips are referred to as "blocking statements." …

"Whether a statement qualifies for protection under the constitutional pure opinion privilege is a legal question to be decided by the court, not a question for the jury." … The First Amendment protects statements that "cannot reasonably be interpreted as stating actual facts about an individual" in "recognition of the Amendment's vital guarantee of free and uninhibited discussion of public issues." In other words, "a viable defamation claim exists only where a reasonable factfinder could conclude that the challenged statement connotes actual, objectively verifiable facts."

Kentucky law similarly protects opinion statements from having a defamatory meaning but adopts the Restatement (Second) of Torts' approach to distinguishing between "pure" and "mixed" opinion. Pure opinion is absolutely privileged and is based on disclosed facts or on facts known or assumed by both parties to the communication. The Restatement explains that a pure opinion "may be ostensibly in the form of a factual statement if it is clear from the context that the maker is not intending to assert another objective fact but only his personal comment on the facts which he has stated." An opinion may, however, be defamatory and actionable if it is mixed, i.e., "if it implies the allegation of undisclosed defamatory fact as the basis for the opinion."

{The parties agree that because Kentucky has rejected the doctrine of "neutral reportage," a newspaper may still be held liable for quoting "newsworthy statements" of third parties.} …

The opinion-versus-fact inquiry thus typically involves two steps under Kentucky law. First, the court determines whether a statement is fact or opinion. If the statement is factual, the analysis ends there; the statement is considered capable of defamatory meaning. But if the statement is one of opinion, the court then determines whether that opinion is based on undisclosed defamatory facts. If so, the statement is capable of defamatory meaning; if not, it is protected opinion. Here, the district court held that the blocking statements "did not imply the existence of any nondisclosed defamatory facts," and Sandmann does not challenge that aspect of its holding. So, if the blocking statements are opinion, they are protected by the Constitution and by Kentucky law.

The way a statement is presented or worded affects the ultimate legal determination of whether it is a fact or opinion. For example, "loose" or "figurative" language can "negate the impression" that the speaker was "seriously maintaining" an assertion of fact. So can "the general tenor" of an article. Kentucky courts have found statements to be opinion where those statements were couched in qualifying terms; sufficiently subjective; or clearly intended to be opinion when "evident from the totality" of their context. The inquiry is setting-specific: that a statement may be capable of objective verification in some contexts does not make it an objectively verifiable fact in every context. Contrary to Sandmann's claim, there is no bright-line rule that statements based on sensory perceptions are necessarily factual.

Start with Phillips's statement to the Washington Post. First, he explained that his goal was to "find … an exit out of this situation." Having articulated that aim, he then described himself and Sandmann as at an "impasse," a term that can be literal or figurative. Then, based on Phillips's perception of Sandmann's reaction to his attempt to leave the area, he said that Sandmann "blocked" him and would not "allow" him to retreat. Whether or not a video shows Phillips attempting to move around or away from Sandmann—or indeed any active movement—does not help us ascertain or objectively verify whether Phillips accurately interpreted Sandmann's actions as purposefully "prevent[ing]" his "passage" away from the crowd to the Lincoln Memorial or refusing to "approve" his exit. And "retreat" need not literally mean to move backwards. The word also means to "withdraw" or "back down" figuratively.

As the district court noted, Sandmann and Phillips never spoke to each other during the encounter. It is unclear whether Sandmann knew that students behind him had stepped aside as Phillips approached, which made him the single person standing between Phillips and the Memorial—or whether Phillips knew that Sandmann might have been unaware of that fact. The lack of clarity as to Sandmann's understanding of the situation makes the blocking statements all the more subjective in nature: based on the fact that Sandmann "stood in [Phillips's] way," Phillips felt that he was "blocking" him and not "allowing" his retreat. There is no way to determine what Sandmann's intent was from the videos of the encounter, which approximate the information available when Phillips made the blocking statements….

Here, videos showed Phillips walking forward into a crowded area, multiple people moving out of his path, and Sandmann standing in front of Phillips. But whether Sandmann "blocked" Phillips, did not "allow" him to retreat, or "decided" that he would not move aside and "positioned himself" so that he "stopped" Phillips are all dependent on perspective and are not "susceptible" of being proven true or false under the circumstances…. [T]here is no "core of objective evidence" that allows us to discern Sandmann's intentions during the encounter….

Moreover, the statements appeared in stories that provided multiple versions and descriptions of the events, putting a reasonable reader on notice that Phillips's statements were merely one perspective among many. The online articles at issue embedded or linked to some version of the video, effectively disclosing the facts upon which Phillips's opinion was based; readers were able to determine for themselves whether they interpreted the encounter as Sandmann deciding to block Phillips, positioning himself to stop him, or not allowing him to retreat. And Gannett's print articles also presented Phillips's statements in a way that clearly framed his statements as his own perspective of the incident. The Kenton Recorder, for instance, explained that "[a]ccounts of the episode vary widely and the question of each party's intent has been hotly contested," and that the "[initial] video alone only tells part of the story." The article then recounted the encounter in detail and provided accounts from both Sandmann and Phillips. The other two print articles did not even include the allegedly defamatory statements, only Phillips's statement that he had tried to walk away…

Judge Richard Griffin dissented:

These cases raise classic claims of defamation. Through their news reporting, defendants portrayed plaintiff Nicholas Sandmann as a racist against Native Americans. Their characterization of Nicholas was vicious, widespread, and false. Defendants' common narrative was readily accepted and effective to the extent that, on national television, NBC's Today Show host Savannah Guthrie asked the 16-year-old if he thought he "owe[d] anybody an apology" for his actions and if he saw his "own fault in any way." {Previously, NBC, CNN, and the Washington Post settled Sandmann's defamation cases against them following the denial on reconsideration of their motions to dismiss.} Moreover, the false portrayal of Nicholas caused the Diocese of Covington to issue an apology for its parishioner's actions. An apology that was later retracted once the Diocese learned the truth.

The truth is depicted on eighteen stipulated videos of the incident, which unequivocally show that 16-year-old Nicholas Sandmann did nothing more than stand still and smile while confronted by a stranger. These cases should be submitted to a jury to decide the factual issue of whether each defendant exercised reasonable care in its reporting….

In my view, the statements that Sandmann blocked Nathan Phillips's ascension to the Lincoln Memorial; prevented Phillips from retreating; and impeded Phillips's movements by stepping to his left and stepping to his right, were actions capable of objective verification. Thus, because these events can be objectively verified, I would hold that the opinion exception to the laws of defamation does not apply….

Begin and end by reviewing the videos. The videos show that, while Nicholas Sandmann was standing still, Phillips walked up to him, played his drum, and sang inches from Sandmann's face. The 16-year-old's only reaction to this unexpected approach by an adult whom he did not know was to smile. During the roughly six-minute encounter initiated by Phillips, a gap in the crowd developed through which Phillips could have walked past or away from Sandmann had he chosen to do so. Phillips did not do so; instead, he remained where he chose to confront the 16-year-old boy only inches from his face.

Next, consider what the statements are about: the physical positioning of Phillips and Sandmann. Then ask whether physical positioning is objectively verifiable. It certainly is. And here, the video evidence conclusively demonstrates that Phillips's narrative is indeed "blatantly and demonstrably false."

The majority opinion holds that the blocking, retreating, and sliding statements were likely Phillips's subjective impressions of Sandmann's intent. Such speculation is contrary to the text of the news stories, which do not state that they are reports of Phillips's perception of Sandmann's intent.

These are three statements that the majority holds are opinion:

  1. "I started going that way, and that guy in the hat [Sandmann] stood in my way and we were at an impasse …."
  2. "He [Sandmann] just blocked my way and wouldn't allow me to retreat."
  3. "I seen [sic] him start putting himself in front of me, so I slided [sic] to the right, and he slided [sic] to the right. I slided [sic] to the left and he slided [sic] to the left—so by the time I got up to him, we were right in front of him. He just positioned himself to make sure that he aligned himself with me, so that sort of stopped my exit."

Rather than construing the text of these statements with their plain meaning, the majority rewrites these news articles as if defendants had reported that Phillips perceived that Sandmann intended to block his way, intended to prevent his retreat, and intended to slide to his left and right. The majority's creative journalism is apparently based on its inference that defendants meant to report that Phillips was recounting his perceptions of Sandmann's intentions.

In the words of the majority opinion, "Phillips felt that he [Sandmann] was 'blocking' him and not 'allowing' his retreat. There is no way to determine what Sandmann's intent was from the videos of the encounter, which approximate the information available when Phillips made the blocking statements." However, contrary to the majority's rewrite, the articles do not report Phillips's feelings or perceptions. Rather, the articles report a factual encounter as recited by Phillips….

Nathan Siegel (Davis Wright Tremaine LLP) argued for the defendants.