U.S. District Judge William O. Bertelsman ruled that seven Post articles and three of its tweets bearing on Nicholas Sandmann — who was part of a group of Catholic students from Kentucky who came to Washington to march against abortion — were protected by the First Amendment. In analyzing the 33 statements over which Sandmann sued, the judge found none of them defamatory; instead, the vast majority constituted opinion, he said.
“Few principles of law are as well-established as the rule that statements of opinion are not actionable in libel actions,” Bertelsman wrote, adding that the rule is based on First Amendment guarantees of freedom of speech. “The statements that Sandmann challenges constitute protected opinions that may not form the basis for a defamation claim.”
Sandmann’s parents, who brought the suit on their son’s behalf, said they would appeal. “I believe fighting for justice for my son and family is of vital national importance,” Ted Sandmann said in a statement. “If what was done to Nicholas is not legally actionable, then no one is safe.”
The Post, in its motion to dismiss the suit, asserted that its stories were accurate and did not impugn the reputation of Sandmann, a Covington Catholic High School student who entered a social media maelstrom after video footage shot during a chaotic afternoon on the Mall showed him standing face-to-face with drumbeating Indian elder Nathan Phillips.
In his suit, Nicholas Sandmann claimed that the “gist” of The Post’s first article, on Jan. 19, was that he “assaulted” or “physically intimidated Phillips” and “engaged in racist conduct” and taunts.
“But,” the judge wrote, “this is not supported by the plain language in the article, which states no such thing.”
When the videos went viral, showing Sandmann and other students wearing “Make America Great Again” hats, commentators saw an opportunity to criticize supporters of President Trump. Many claimed that Sandmann’s and other students’ behavior reflected a disrespect for the Native American elder, who is also a military veteran.
Phillips, who was part of an indigenous people’s march the same day, said in The Post’s first article about the incident that the teen blocked his way as he was trying to reach the top of the Lincoln Memorial’s steps.
Sandmann later said he was just remaining motionless and calm, in hopes of soothing emotions at the scene.
Sandmann’s suit called The Post’s coverage libelous on its face, but the judge’s opinion cited case law noting that statements must be “more than annoying, offensive or embarrassing.” They must expose the allegedly libeled party to public hatred, ridicule and contempt, among other damaging elements.
In seeking dismissal, The Post’s lawyers also noted that several of Sandmann’s complaints stemmed from the articles’ descriptions of the crowd’s behavior in general, not his. The judge, an appointee of President Jimmy Carter, agreed in many cases. “And while unfortunate, it is further irrelevant that Sandmann was scorned on social media,” the judge wrote.
The judge also found no fault with The Post quoting Phillips.
“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 impede or block anyone,” the judge wrote.
“However, Phillips did not see it that way. He concluded that he was being ‘blocked’ and not allowed to ‘retreat.’ He passed these conclusions on to The Post. They may have been erroneous, but . . . they are opinion protected by the First Amendment. And The Post is not liable for publishing these opinions.”
“From our first story on this incident to our last, we sought to report fairly and accurately the facts that could be established from available evidence, the perspectives of all of the participants, and the comments of the responsible church and school officials,” said Shani George, The Post’s director of communications. “We are pleased that the case has been dismissed.”