Sandmann in court for $250M defamation suit against WaPo

Sandmann in court for $250M defamation suit against WaPo
Nick Sandmann's attorneys (Todd McMurtry, right, and L. Lin Wood) outside the federal courthouse in Covington. (Photo: The Enquirer/Max Londberg) (Source: Cincinnati Enquirer)

COVINGTON, Ky. (Cincinnati Enquirer) - Nick Sandmann, a Covington Catholic student seeking more than three-quarters of $1 billion against several media companies, was in court for one of the pending lawsuits for the first time on Monday.

Sandmann sat in a blue suit between his lawyers, L. Lin Wood and Todd McMurtry, as arguments were heard in a federal courtroom in Covington.

Nick's first defamation suit was filed against The Washington Post. He seeks $250 million for the paper's coverage of a late-January incident on the Lincoln Memorial in which Sandmann and his classmates encountered a Native American group.

Judge William O. Bertelsman heard from Sandmann’s attorneys and those from The Washington Post, which has made a motion to dismiss the allegations against it. Bertelsman did not rule on the motion in court, saying he will review the arguments and reach a decision in the coming weeks, according to our media partners at the Cincinnati Enquirer.

McMurtry argued The Post reported on the incident before compiling enough facts about what happened between Nick and Nathan Phillips, the Native American man who stood across from Nick. Videos of the encounter went viral. Nick received death threats.

McMurtry said The Post’s reporting could lead a reasonable reader to conclude Nick’s actions were worthy of contempt. He added that the gist of The Post’s first article implied Nick assaulted Phillips.

Kevin Baine, representing The Post, denied that the paper’s coverage defamed Nick. The Post quoted Phillips, who asserted Nick had blocked his ability to retreat the area. Such an assertion on its own does not constitute an allegation of assault, Baine said.

“Is it an assault?” Bertelsman asked. " ‘Wouldn’t allow me to retreat’ is kind of vague. If (Nick) grabbed (Phillips), maybe that’s assault, but I don’t think that’s what it says."

At one juncture, Bertelsman quipped about the complexity of the case. He had earlier warned that the nature of his questions are not clues as to his opinion on matters raised.

Bertelsman also commented on the great public interest of this case. He gave a brief recap of libel law in the U.S., saying even private individuals cannot recover “just because something is false.” A plaintiff must show a defendant, in this case The Washington Post, was negligent in its reporting.

Baine said The Post's reporting on the incident evolved, with stories more favorable to Nick – including that an independent investigation cleared him of wrongdoing – being placed more prominently in the print edition of the paper.

He also argued that Phillips's retreat quote was a matter of perception.

"I think the plaintiff thinks it's libelous that Sandmann didn't move," Baine said, "but that's true. He didn't move. He stood his ground."

Bertelsman said "everything seems to turn on" Phillips's retreat quote.

Baine also argued Kentucky law requires Nick to detail how The Post's reporting caused him financial loss because the defamatory statements he identified are open to interpretation and may be seen as portraying Nick innocently.

McMurtry said the gist of The Post's reporting "alleges an assault" by Nick, making it libel per se and not implied libel, thus not requiring identification of financial loss.

Nick’s reputation has been “permanently scarred,” McMurtry added.

Wood, Nick's other attorney, said after the hearing that the case has significance for media reporting on private, minor subjects.

Bertelsman said Sandmann is seeking "large amounts" in punitive damages in the case, adding proof of oppression, fraud or malice must thus be shown.

In response, McMurtry claimed The Post's reporting met that bar, for it used an unreliable, edited video of the incident and pushed its first story out to excite readers, maliciously "throwing caution to the wind."

Baine said The Post lifted the story from "social media extremism" and added fact-based reporting.

"It brought clarity," Baine said, to a social media firestorm.

Sandmann's legal team earlier claimed dozens of statements published by The Post are defamatory.

But the newspaper’s attorneys wrote in a brief filed last month that each of its published statements does not meet the bar for defamation for several reasons: It isn’t about Sandmann; it isn’t defamatory; it’s a statement of opinion or it is substantially true, or some combination thereof.

Sandmann has claimed The Post's reporting implied that he:

  • Assaulted and/or physically intimidated Nathan Phillips, the Native American who stood across from him;
  • Instigated the confrontation with Phillips;
  • Engaged in "racist taunts" and that he violated the standards of his religious community, based on The Post's publishing the Diocese of Covington's statement, according to The Post.

The Post's coverage was likened to a "modern-day form of McCarthyism" by Nick's attorneys in their initial complaint.

The attorneys have claimed The Post competed with other national outlets to “claim leadership” of a mob of “bullies which attacked, vilified, and threatened Nicholas Sandmann.”

The initial complaint stated Sandmann was seeking to recover from the newspaper "the amount Jeff Bezos, the world's richest person, paid in cash for The Post."

Nick and his attorneys are also suing CNN and NBC for $275 million each.

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