But probably not for long. CNN and the Washington Post settled with Nicholas Sandmann over his libel claim rather than attempt to defend their reporting on the March for Life confrontation with activist Nathan Phillips, and especially their subsequent defamatory commentary even after the full context of that confrontation became clear. Other news outlets have played out the string, hoping to find a way to shortcut the need to start writing checks to the teenager and his high-powered attorney, Lin Wood.
That strategy looks like it has expired, as Wood announced yesterday afternoon:
Motions to Dismiss @N1ckSandmann defamation lawsuits filed in KY federal court against NY Times, Rolling Stone, ABC, & CBS were just DENIED.
NBC motion has previously been DENIED.
Gannett motion was briefed on different time schedule & a DENIAL is expected in next few weeks.
— Lin Wood (@LLinWood) October 1, 2020
Our friend William Jacobson has the links to the four court orders denying the motions to dismiss, all separately for each respondent. William excerpts the explanation denying the motion from the New York Times as fairly representative of the response to all four:
Greatly summarized, the Complaint alleges that Sandmann was libeled by the defendant when it published a news article stating that Sandmann, while at the Lincoln Memorial, “blocked” NativeAmerican activist Nathan Phillips and “prevented Phillips’ retreat while Nicholas and a mass of other young white boys surrounded, taunted, jeered and physically intimidated Phillips.” (Compl. ¶ 3).
This news story is alleged to be false and defamatory. (Id.). Sandmann further alleges that this publication by defendant and similar stories by other news media caused him to be harassed by the public, causing him great emotional distress. (Compl. ¶¶ 25, 162-164, 251-257). Sandmann also alleges that defendant’s article “is now forever a part of the historical Internet record and will haunt and taint Nicholas for the remainder of his natural life and impugn his reputation for generations to come.” (Compl. ¶ 254).
The motion to dismiss argues that this publication is not libelous, but the Court has ruled in companion cases that it is libelous. The Court continues to hold that opinion for the reason stated in such preceding cases. See Sandmann v. The Washington Post, Cov. Case No. 19cv19 (Docs. 47, 64); Sandmann v. Cable News Network, Cov. Case No. 19cv31 (Docs. 43, 44); Sandmann v. NBCUniversal Media, LLC, Cov. Case No. 19cv56 (Doc. 43).
However, this excerpt from the court’s response to Rolling Stone seems even more germane. The magazine’s attorneys attempted to use Croce v NY Times to argue that all their client did was provide an account of the facts at hand. The court noted that this precedent technically doesn’t apply since all parties agreed to be bound by Kentucky rather than Ohio law, but it won’t hold up in the particulars of Sandmann’s complaint anyway:
In Croce, a newspaper published an article that included unflattering allegations against the plaintiff, a university professor and cancer researcher. The Court held that, in “full context,” a “reasonable reader would interpret the article as a standard piece of investigative journalism” which simply reported “newsworthy allegations with appropriate qualifying language.” Id. at 794-95.
That holding is inapplicable under the allegations of the Complaint here. Sandmann alleges that defendants published a factual, defamatory statement by Phillips, period. No amount of context removes that meaning. Sandmann further alleges that defendants failed to exercise reasonable journalistic care in determining whether Phillips’ statements should have been published at all. Therefore, the Court holds that the Complaint states a claim for relief.
In other words, the magazine arguably had a duty to check that statement before publishing it, or offering context to mitigate it. The court also addressed that in its response to CBS News:
The parties agree that Kentucky law applies to this case. Under Kentucky law, a writing is defamatory “if it tends to (1) bring a person into public hatred, contempt or ridicule; (2) cause him to be shunned or avoided; or (3) injure him in his business or occupation.” McCall v. Courier-Journal and Louisville Times Co., 623 S.W.2d 882, 884 (Ky. 1981) (citation omitted). The allegations of the Complaint fit this definition precisely.
Sandmann further alleges that defendants ignored an available video that showed the full context of the January 18 encounter, demonstrating the falsity of Phillips’s statements (Compl. ¶ 16); that defendants failed to engage in “basic journalistic due diligence,” which would have revealed Phillips’ lack of credibility (Compl. ¶ 20); that defendants published the statements negligently and maliciously, (Compl. ¶¶ 247-276); and that Sandmann suffered public hatred, scorn, and emotional damages as a result (Compl. ¶¶ 277-283).
These allegations clearly state a valid claim for defamation. Defendants attack the significance of these allegations and deny some of them, but that raises matters for discovery.
In the motion to dismiss, defendants also argue that the statements at issue cannot be libelous because the publications in full included statements more favorable to Sandmann’s view of the events. However, no amount of context removes the meaning of a statement alleged to be defamatory per se.
Note especially the reference to discovery, the process by which attorneys for each side can demand documentation and depositions. That’s what these media outlets want to avoid most. For one thing, that battle is absurdly asymmetrical. How much discovery can these media outlets get from a teenager? On the other hand, Wood can use that process to depose everyone up the managerial chain, right up to the top of the outlets, and use the depositions to wage public war on them.
And they know that’s exactly what Wood will do, too, which is why this fight won’t last much longer with any of these media outlets. They’ll start cutting checks and negotiating for bilateral gag agreements rather than take that risk. If this gets in front of a jury, they’re almost certain to lose anyway. If any rational heads are in charge at these outlets, this will be over by Thanksgiving — if not Halloween.