Update: July 24, 2020: After the court granted Nick Sandmann’s motion to file an amended complaint and continue with the legal proceeding, WaPo settled the matter out of court. I wish Nick Sandmann the best.
The defamation case of Sandmann v. Washington Post was dismissed on July 26, 2019. As an internet defamation lawyer, I find the federal court’s decision (referred to as the Decision, hereinafter) circular and contradictory to its own findings.
… by what can only be described as a hallmark example of poor journalistic skills, Washington Post published seven articles relying on the misleading viral video clip.
Here’s how the court did not adhere to well settled principles of defamation law:
Nicholas Sandmann, a high school student from Kentucky, was attending a political rally in the nation’s capital with a group of other students. Sandmann and a few other teens in his group were wearing Make America Great Again (“MAGA”) hats.
The court succinctly summarizes the events that follow:
…[A] group of men from an organization called the Black Hebrew Israelites began yelling racial epithets and threats of violence towards [Sandmann’s group]. When this yelling had been going on for almost an hour, a third group of individuals Native Americans who had been attending the Indigenous Peoples March on the National Mall that day began approaching the students, singing and dancing, and recording a video. At the front of the group was a Native-American activist named Nathan Phillips (“Phillips”). Phillips was beating a drum and singing. When the Native Americans reached the students, Sandmann was at the front of the student group.
Decision, at p. 2–3 (internal citations omitted). The court continued:
Phillips walked very close to Sandmann, beating his drum and singing within inches of Sandmann’s face. Sandmann did not confront Phillips or move toward him, and Phillips made no attempt to go past or around Sandmann. Sandmann remained silent and looked at Phillips as he played his drum and sang. The encounter ended when Sandmann and the other students were told to board their buses.
Id., at p. 3.
Although Sandmann did not approach the elderly Native American gentleman, a short misleading video of the incident was posted by an inauthentic twitter account with a comment:
This MAGA loser gleefully bothering a Native American protestor at the Indigenous Peoples March.
Due to the political divide within this country, the misleading video become viral. The court recognized:
In this age of social media, the events quickly became the subject of posts, squares, tweets, online videos, and — pertinent here statements published by major media outlets. As a result, plaintiff [Sandmann] found himself thrust into the national spotlight.
Id., at p. 1.
Thereafter, by what can only be described as a hallmark example of poor journalistic skills, Washington Post published seven articles relying on the misleading viral video clip. All seven articles were published without proper fact checking.
Washington Post’s Statements
Washington Post reported the following statements, in part, about the incident:
The images in videos that went viral on social media Saturday showed a tense scene near the Lincoln Memorial.
Surrounding [Philips] are a throng of young, mostly white teenage boys, several wearing “Make America Great Again” caps. One stood about a foot from the drummer’s face wearing a relentless smirk. Nathan Phillips, a veteran in the indigenous rights movement, was that man in the middle.
[Philips] felt threatened by the teens and that they swarmed around him as he and other activists were wrapping up the march and preparing to leave.
“It was getting ugly, and I was thinking: ‘I’ve got to find myself an exit out of this situation and finish my song at the Lincoln Memorial,’ ” Phillips recalled. “I started going that way, and that guy in the hat stood in my way and we were at an impasse. He just blocked my way and wouldn’t allow me to retreat.”
In a statement, the Indigenous Peoples Movement, which organized Friday’s march, called the incident “emblematic of our discourse in Trump’s America.”
“It clearly demonstrates the validity of our concerns about the marginalization and disrespect of Indigenous peoples, and it shows that traditional knowledge is being ignored by those who should listen most closely,” Darren Thompson, an organizer for the group, said in the statement. Rep. Deb Haaland (D-N.M.), who with Rep. Sharice Davids (D-Kan.) became the first Native American women elected to Congress last fall, said the video was difficult to watch.
“To see a group of students from a Catholic school who are practicing such intolerance is a sad sight for me,” said Haaland, who is Catholic.
Chase Iron Eyes, an attorney with the Lakota People Law Project, said the incident lasted about 10 minutes and ended when Phillips and other activists walked away. “It was an aggressive display of physicality. They were rambunctious and trying to instigate a conflict,” he said. “We were wondering where their chaperones were. … .”
Antonio Olivo et al., ‘It was getting ugly’: Native American drummer speaks on the MAGA-hat-wearing teens who surrounded him, THE WASHINGTON POST (Jan. 20, 2019).
Contrasting the court’s actual findings from Washington Post’s reporting
Washington Post referenced to the misleading video and portrayed the group as “a throng of young, mostly white teenage boys,” wearing MAGA hats. They “swarmed around Phillips “as he and other activists were wrapping up the march and preparing to leave,” with Sandmann standing “a foot from the drummer’s face wearing a relentless smirk.“
However, the court noted that it was Sandmann and his group, not Phillips, who were subjected to “racial epithets and threats of violence” for more than an hour by the Black Hebrew Israelites, before “Phillips walked very close to Sandmann, beating his drum and singing within inches of Sandmann’s face.”
Nonetheless, the court did not find Washington Post’s depiction of the events defamatory towards Sandmann.
In my opinion, it did so by misapplying the law and contradicting or ignoring its own findings:
Issue 1: Not “about” Sandmann
The court first analyzed each statement individually and stated that none of the alleged statements were “about” Sandmann. The court noted that the article “does not mention Sandmann by name, there is no identifiable description of him, and there is no picture of Sandmann in the article.” Decision, at p. 13. See also, Id. at pp. 7–8, 14. It thus concluded that a direct reference between Sandmann and the article was not established.
However, the court’s rationale is not accurate. The Washington Post article begins with:
The images in videos that went viral on social media Saturday showed a tense scene near the Lincoln Memorial.
Further, the court acknowledged that Sandmann was dragged into the “national spotlight” due to the publication of the events, that went viral on social media, by the main-stream media. Therefore, a direct link can reasonably be established between the article referencing to the video and Sandmann.
The court also ignored that Sandmann was singled out in the article as one of the MAGA hat wearing teens that stood about a foot away from Philips with a relentless smirk. Thus, the statements in the article are in fact ‘about’ Sandmann.
It seems the court knew its analysis rested on shaky ground, so it further stated that even if the article was considered to be “about” Sandmann, he failed to establish a showing of defamation. Decision, at pp. 20, 27. This brings us to the second issue.
Issue 2: Opinion v. Fact
“If a speaker says, ‘In my opinion John Jones is a liar,’ he implies a knowledge of facts which lead to the conclusion that Jones told an untruth. Even if the speaker states the facts upon which he bases his opinion, if those facts are either incorrect or incomplete, or if his assessment of them is erroneous, the statement may still imply a false assertion of fact.” Milkovich v. Lorain Journal Co., 497 U.S. 1, 18–19 (1990) (emphasis added).
The court determined that the following statements conveyed Phillips’s subjective feelings/interpretation, rather than objectively verifiable facts:
- “He felt threatened by the teens and that they swarmed around him as he and other activists were wrapping up the march and preparing to leave.”
- “I started going that way, and that guy in the hat stood in my way and we were at an impasse.”
- “He just blocked my way and wouldn’t allow me to retreat.”
See Decision, at pp. 16–17.
A. While it is true Phillips’s subjective feelings do not convey objectively verifiable facts, the court’s determination is contrary to well established legal principles. Arguably, if the court’s reasoning were to become the acceptable legal standard, no one can ever be held liable for defamation. Why? Because in a defamation matter it is always someone’s subjective belief that the other person’s conduct is/was wrong.
The proper standard requires an objective finding of verifiable facts to make a determination of whether a statement is false (or true), which is a question for the jury, not the judge.
Nonetheless, here, the court’s own findings show that the following can be objectively verified:
1. Sandmann and his group did not swarm around Phillips as he was wrapping up and preparing to leave, but rather the court determined that Phillips approached the teens. Also, a jury can reasonably find that one does not get swarmed, within context of its colloquial meaning, when he intentionally subjects himself between two groups, just as Phillips did here.
2. “I started going that way, and that guy in the hat stood in my way ” can also be objectively verified to be false since per the court’s finding, “Phillips walked very close to Sandmann, …within inches of Sandmann’s face.” Clearly, the court’s determination settles that Phillips walked towards Sandmann, who was standing at front of his group. Can Sandmann stand in Phillips’s way when Phillips was the one who approached him, within inches of his face? Reasonably, a jury may find that Sandmann did not stand in Phillips’s way. After all, it is illogical to approach another person and then claim that the other person was in your way.
3. “He just blocked my way and wouldn’t allow me to retreat,” can also be shown to be objectively false based on the court’s finding that “Phillips made no attempt to go past or around Sandmann,” and “Sandmann remained silent and looked at Phillips as he played his drum and sang.”
It is baffling that, on one hand, the court consults a dictionary to determine formal definitions of words, while on the other hand it cherry picks a definition without considering the context in which those words were used.
B. Further, the court also seems to be making tangential arguments in an attempt to justify its rationale. Citing a dictionary, the court stated:
The word “block” is a transitive and “figurative” verb meaning “to obstruct or close with obstacles.” “Swarm” simply means to “come together in a swarm or dense crowd.” And one individual obviously cannot “swarm” another.
Decision, at p.17.
The court then determined:
Phillips disclosed the reasons for his perception: the size of the crowd, the tense atmosphere, taunts directed at his group, and his memories of past discrimination. There were no undisclosed facts, and the reader was in as good a position as Phillips to judge whether the conclusion he reached — that he was “blocked” — was correct. The statement is thus pure opinion.
Id., at p.18 (internal citations omitted).
First, the court’s bizarre focus on semantics is not only unnecessary, it is also inaccurate. It is baffling that, on one hand, the court consults a dictionary to determine formal definitions of words, while on the other hand it cherry picks a definition without considering the context in which those words were used.
For example, while block may mean ‘to obstruct or close with obstacles’, in the context of the events and the general meaning associated by a lay person, a more appropriate definition would be “to make unsuitable for passage or progress by obstruction.” Block, MERRIAM-WEBSTER DICTIONARY (last visited Jul., 28, 2019).
Second, in light of the Washington Post article, was the reader “in as good a position as Phillips” to judge whether he was blocked, that is, his passage was made unsuitable by Sandmann’s obstruction?
The court seems to ignore that phrases like: (i) ‘throng of young, mostly white teenage boys, several wearing MAGA caps’, (ii) ‘One stood about a foot from his face wearing a relentless smirk’, and (iii) ‘He felt threatened by the teens and that they swarmed around him as he was wrapping up the march and preparing to leave’, renders an inaccurate depiction of the events.
This is further amplified when read in conjunction with Phillips’s statements:
It was getting ugly, and I was thinking: ‘I’ve got to find myself an exit out of this situation and finish my song at the Lincoln Memorial[.] I started going that way, and that guy in the hat stood in my way and we were at an impasse. He just blocked my way and wouldn’t allow me to retreat.
Reasonably, an average lay person, reading within the four corners of the Washington Post article, is bound to believe that Phillips’s path was indeed blocked by Sandmann’s willful obstruction, along with a throng of MAGA hat wearing teenage boys.
The Washington Post reported that the teens swarmed around Phillips as he was wrapping up and preparing to leave, and that Phillips felt threatened — both within the same sentence.
The court’s own findings determine that the facts referenced by Washington Post are incorrect or incomplete. Particularly, Washington Post did not report that Phillips voluntarily subjected himself between the two groups. It did not report that Phillips approached Sandmann and reached within inches away from Sandmann’s face. It also did not report that Sandmann remained silent and looked at Phillips, while Phillips played the drum and sang.
Contrary to the court’s determination, these undisclosed facts would have placed an average reader in as good a position as Phillips to judge whether he was “blocked” by Sandmann. Arguably, had the reporters considered the complete video, instead of relying on a misleading video posted on a twitter account, they would have known that the facts referenced in their articles were incorrect or incomplete.
Further, while swarm might mean to come together in a dense crowd, the court seems to have interjected this definition without context as well. The Washington Post reported that the teens swarmed around Phillips as he was wrapping up and preparing to leave, and that Phillips felt threatened — both within the same sentence. Reasonably, this introduces an element of suddenness (swarmed by a group as one was about to leave) which caused one to feel threatened. Thus, to an average reader, Phillips reasonably felt threatened when he was suddenly surrounded by a throng of MAGA hat wearing white teenage boys as he was preparing to leave.
A list of contradictory statements between the court’s factual findings and the Washington Post’s articles are summarized below for the reader’s convenience:
Issue 3: No Finding Of Defamation Per Se
Finally, the court noted that for the purposes of determining defamatory content, Kentucky law requires that “… words must be given their ordinary, natural meaning as defined by the average lay person,” and be read from within the “four corners of the publication.” It then dissected each statement separately and concluded that Washington Post did not wrongfully smear Sandmann and his group as ‘engaging in racist conduct’ or ‘physically intimidating Phillips’. See Decision, at pp. 20–25.
However, reading within the “four corners of the publication” reasonably means considering every aspect and the overall scenario depicted by the article:
First, the Post’s articles clearly referenced the misleading viral video and described the incident as depicted in the clip, within the four corners of the publication. Thus, the natural meaning by a lay person would include considering the article in light of the viral misleading video.
Second, the four corners of the publication depicted Sandmann’s group as rambunctious and trying to instigate a conflict. The four corners of the article also asserted that Phillips was surrounded by a throng of MAGA hat wearing white teenagers and that he felt threatened by them. Reasonably, the ordinary and natural meaning of the article suggests physical intimidation by a teen with a relentless smirk and his group.
Third, the article referred to statements by politicians and political organizations that included: (a) “It clearly demonstrates the validity of our concerns about the marginalization … of Indigenous peoples,” (b) “To see a group of students … who are practicing such intolerance is a sad sight for me,” and (c) the incident being “emblematic of our discourse in Trump’s America.” Clearly, these statements mean that Sandmann and his group were intolerant towards Indigenous people and were marginalizing them, actions that ordinarily and naturally are associated with racism and bigotry.
Thus, the court’s analysis is incorrect.
This decision is troubling because it does not hold the media accountable for its blatant disregard of the truth, for its failure to fact check its ‘sources’, and for its failure to protect the reputation and character of innocent civilians.
On policy grounds, as a society, should we permit powerful organizations and well trusted newspapers to satiate their obsessive demagoguery at the expense of ordinary citizens?
About the author:
Rohit Chhabra is a San Francisco, California based internet defamation attorney who has represented clients at the Northern District of California and the Ninth Circuit Court of Appeals.
Originally published at https://www.clfip.com on July 30, 2019.