Three-judge panel upholds dismissal of Nick Sandmann’s lawsuits against news outlets
CINCINNATI (ENQUIRER) - A panel of three federal judges in Cincinnati affirmed a lower court’s dismissal last year of defamation lawsuits by former Covington Catholic High School student Nicholas Sandmann against five national media outlets, including The Enquirer’s owner, Gannett Co.
Sandmann, who according to his social media accounts now attends Transylvania University in Lexington, pursued multiple lawsuits against media outlets over reporting about a viral video, which showed a Jan. 18, 2019, encounter in Washington, D.C., involving then-16-year-old Sandmann and a Native American man, Nathan Phillips, according to our media partners at the Cincinnati Enquirer.
A 2-1 decision Wednesday by the U.S. Sixth Circuit Court of Appeals in Cincinnati supported the July 2022 ruling of a federal district court judge in Kentucky, who said the media outlets – Gannett, The New York Times, Rolling Stone magazine, ABC News and CBS News – reported statements by Phillips that were “objectively unverifiable” and thus constitutionally protected opinions.
The Enquirer was one of several Gannett-owned news outlets that reported on the encounter.
In the widely-publicized video, Phillips, who was demonstrating as part of the Indigenous Peoples March, and Sandmann face each other in a crowd on the National Mall. Sandmann and more than 100 classmates from the Park Hills, Kentucky school were there that day for the March for Life.
The Indigenous Peoples March and an unrelated political demonstration also took place that day, and a confrontation ensued between some Covington Catholic students and members of the Black Hebrew Israelites, the ruling states. Phillips saw that confrontation and, concerned it would escalate, stepped between the two groups in an attempt to defuse the situation.
Phillips tried to exit the situation by walking up the steps of the Lincoln Memorial when he encountered Sandmann, the document states. The two stood face to face for some time and the incident ended when a chaperone arrived and told the students to leave.
It is undisputed that Sandmann and Phillips never spoke. Phillips later made a statement to the Washington Post, which was quoted by the New York Times and other news outlets, saying Sandmann “blocked my way and wouldn’t allow me to retreat.”
In writing the prevailing opinion, Circuit Judge Jane B. Stranch said Phillips’ statements about the incident were “contextual and subjective.” Despite Sandmann’s claims in court, the judge wrote, “there is no bright-line rule that statements based on sensory perceptions are naturally factual.”
“Phillips’s statements are opinion, not fact,” the judge wrote.
Reporting by the media outlets offered multiple accounts of the event and linked to some version of the video, Stranch said, leaving it to readers to decide what Sandmann’s intentions were during his interaction with Phillips.
In some cases, media coverage of the encounter clearly framed Phillips’ statements as being his own view of what happened, she added.
Stranch noted that the news articles in question in the case “describe a contentious encounter, the meaning of which was hotly disputed by participants and witnesses.”
In a dissenting opinion, Circuit Judge Richard Allen Griffin said the news outlets’ reporting of the incident easily embraced Phillips’ version of events and portrayed Sandmann “as a racist against Native Americans.”
Griffin disagreed with the majority’s view that Phillips’ statements about Sandmann blocking his path cannot be objectively verified, noting the cases should be submitted to a jury for consideration as to whether the news outlets exercised “reasonable care” in their reporting.
“Their characterization of Nicholas was vicious, widespread, and false,” Griffin wrote. “The video evidence shows that Phillips initiated an encounter with a 16-year-old boy. In response to this action from a stranger, Nicholas Sandmann did nothing more than stand still and smile.”
Sandmann had sued Gannett for $195 million. In total, he was seeking $1.25 billion through the multiple lawsuits.
In 2020, CNN and The Washington Post reached settlements with Sandmann. And in 2021, NBC settled. The details of those settlements were not disclosed.
“We have put a lot of work into this case and will continue to seek justice for Nicholas Sandmann,” Todd McMurtry, an attorney representing Sandmann, said in a Wednesday email to The Enquirer. “We plan to pursue every available opportunity to win this case.”
Enquirer reporter Kevin Grasha contributed.
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