One of three lawsuits against national news media filed by lawyers for then-Covington Catholic student Nick Sandmann has been dismissed by Eastern District Federal Judge William O. Bertelsman.
Bertelsman heard oral arguments in Covington earlier this month in the $250 million lawsuit against the Washington Post.
Nick and his attorneys, Todd McMurtry and L. Lin Wood, alleged that the gist of The Washington Post’s first article conveyed that Nick had assaulted or physically intimidated Nathan Phillips, engaged in racist conduct, and engaged in taunts.
But, Bertelsman wrote, “this is not supported by the plain language in the article, which states none of these things.”
Bertelsman accepted Nick’s assertion that he was only standing motionless across from Phillips, without ill intent.
But the Eastern District of Kentucky judge ruled that Phillips, who told the media he felt threatened, had a First Amendment right to express his opinion.
The suits stem from the extensive coverage of an incident at the Lincoln Memorial in Washington, D.C. last January about a confrontation between students from Covington Catholic High School and Native American Nathan Phillips. A video posted of the incident went viral, creating a firestorm of reaction and prompting national media coverage.
In the video, Sandmann is staring at Phillips as Phillips leads a chant with other Native Americans who were participating in the Indigenous Peoples March. The student was vilified on social media for being disrespectful of the elder Philipps.
Sandmann had traveled with Covington Catholic students to D.C. to participate in the March for Life and were sightseeing before leaving to return home.
Sandman and his attorneys, Todd McMurtry and L. Lin Wood, argued that The Post’s first story suggested that Nick had assaulted or physically intimidated Nathan Phillips and engaged in racist taunts.
Judge Bertelsman wrote that “this is not supported by the plain languages in the article, which states none of these things.”
Bertelsman wrote that “As the Court explained at oral argument on this motion, in modern libel law there are many affirmative defenses, even for blames based on defamatory statements. These defenses are calculated to protect defendants, especially the press, from strict liability.
“The defense that a statement of opinion is not actionable protects freedom of speech and the press guaranteed by the First Amendment.
“The Court accepts Sandmann’s statement that, when he was standing motionless in the confrontation with Phillips, his intent was to calm the situation and not to impede or block anyone.
“However Phillips did not see it that way. He concluded that he was being “blocked” and “not allowed to “retreat.” He passed those conclusions on to The Post They may have been erroneous, but, as discussed above, they are option protected by the First Amendment. And The Post is not liable for publishing those opinions . . “
Bertelsman also wrote that it was irrelevant to the defamation case that Sandmann was scorned on social media.