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Washington Post seeks dismissal of Sandmann lawsuit

The encounter beween high school student Nicholas Sandmann and American Indian activist Nathan Phillips on Jan. 18, 2019, in an image taken from video. (Kaya Taitano/Social media/Reuters)

The Washington Post asked a federal court Tuesday to throw out a $250 million libel suit brought by a Kentucky high schooler who says the paper’s coverage of his and fellow students’ encounter with an American Indian activist at the Lincoln Memorial in January was false and defamatory.

The Post, in its motion to dismiss the suit, asserts that its stories were accurate and did not impugn the reputation of Covington (Ky.) Catholic High School student Nicholas Sandmann, who entered a social media storm through video footage shot during a chaotic afternoon on the Mall when he stood face-to-face with drumbeating Indian elder Nathan Phillips.

The articles cited in the Sandmann suit, which was filed on his behalf by his parents, “may not have been flattering of the Covington Catholic students” who were caught up in disparate marches that day, “but they do not give rise to a defamation claim by Sandmann,” says the paper’s motion, filed in U.S. District Court in Covington. “Indeed, the Post’s overall coverage — including the articles that the Complaint fails to mention — was not only accurate; it was ultimately favorable to him.”

Lawyers for the 16-year-old say in their February suit that The Post’s reporting across seven articles caused “permanent harm” to the boy’s reputation and “severe emotional distress” — and further alleged that he must “live his life in a constant state of concern over his safety.”

The suit say the $250 million figure for damages was arrived at because that is the sum that Amazon founder Jeff Bezos paid for The Post in 2013.

Sandmann also has sued CNN for allegedly defamatory coverage, seeking $275 million. The Post, Sandmann’s suit says, led a “mainstream and social media mob of bullies which attacked, vilified, and threatened” Sandmann.

The legal papers reflect the dueling, often politically charged narratives that unspooled after the Jan. 18 encounter between Sandmann and Phillips was captured on video footage that spread rapidly over what The Post’s motion calls the “tentacles of the Internet.”

About 100 Covington students were in Washington to participate in the antiabortion March for Life, and many, including Sandmann, wore the “Make America Great Again” caps that reflect support for President Trump.

When the videos went viral, anti-Trump commentators seized on the image of Sandmann standing face-to-face with Phillips and claimed that his and others students’ behavior reflected a disrespect for the Native American elder, who is also a military veteran.

Phillips said in The Post’s first article about the incident, published Jan. 19, that the teen blocked his way while he was trying to reach the top of the Lincoln Memorial’s steps.

In the video, the youth — then unidentified — bore a tight, ambiguous expression, which that initial article called a “relentless smirk.” But Sandmann later said he was just remaining motionless and calm, in hopes of soothing emotions at the scene.

The Covington diocese and the school initially apologized to Phillips and condemned the students’ behavior as disrespectful to American Indians, raising the possibility of expulsion. But they reversed course within days as more videos and facts came to light.

The Post covered that story and also reported on a diocese-commissioned investigation that exonerated the students of any racist behavior. (The Post argues that Sandmann’s libel suit in many instances challenges statements that were made about the students as a group and not specifically about Sandmann.)

“It was neither false nor defamatory . . . for the Post to report the comments of eyewitnesses, including the only participants who were speaking publicly about the matter on the day that videos of the event went viral on the internet,” the paper’s motion says. “Newspapers are often unable to publish a complete account of events when they first come to light.”

Like many news stories, this one was iterative — it grew more complete with each telling — and The Post said that the paper tried at each turn to present more context and facts as they became available.

“This story was an emerging one,” the motion states. “No one could possibly have understood the initial article as having told the whole story.”

And, it says, “no one could have failed to notice the [Feb. 14] front-page report of the investigative findings in the students’ favor.”

In any event, Phillips’s comments to The Post — cited in the libel suit — do not constitute defamation, The Post’s lawyers say. They were matters of opinion.

“Most of the statements that referred to [Sandmann] were statements of the subjective feelings and motivation of the Native American man who saw himself as a peacemaker trying to calm a rowdy crowd of young people and protestors,” The Post’s lawyers say. “That man was entitled to offer his subjective point of view, and the Post had a right to report it.”

The suit also alleges that The Post’s coverage of Sandmann was intended to forward its “biased agenda” against Trump by disparaging the president’s perceived followers. The Post’s motion, in contrast, cites prominent coverage of Sandmann’s version of events and the investigative findings in his favor.

“Politics has nothing to do with this case, and law warrants its dismissal,” The Post says in its motion.

The Sandmann suit contends that The Post ignored videos that showed a more complete picture of the incident and “did not conduct a proper investigation before publishing its false and defamatory statements of and concerning Nicholas.” The suit says the paper acted with “knowledge of falsity or a reckless disregard for the truth” — the cornerstones of libel law.

The paper takes a different view. “He and others who were present may well have been embarrassed by the attention — and hurt by the criticism — they received,” the motion says. “But Sandmann does not have a cause of action for libel against The Washington Post.”