Attorneys for The Washington Post have requested a dismissal of the $250 million defamation lawsuit filed against the newspaper by Covington Catholic High School student Nick Sandmann.
The 52-page motion to dismiss was submitted with the U.S. District Court for the Eastern District of Kentucky on Tuesday.
Sandmann became a national figure at the age of 16, after a viral video was widely interpreted to have shown him and several dozen other students making mocking and/or menacing gestures at Omaha Native American elder and political activist Nathan Phillips during a demonstration outside in Washington, D.C.
Subsequent reporting and video footage somewhat altered the narrative and showed that the high school students were actually being subject to racially-charged jeers from a controversial group known as the Black Hebrew Israelites. Phillips’ account was also called into question and Sandmann eventually pursued legal action.
Now, the Post wants a judge to toss Sandmann’s lawsuit, in part because the libel action only cites early articles that “included the observations and perspectives of the principal Native American participant in the incident and other eyewitnesses.”
Publishing such first impressions, the motion argues, is not defamatory.
“It was neither false nor defamatory, however, 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 motion said. “Newspapers are often unable to publish a complete account of events when they first come to light. Stories often develop over time, as more witnesses emerge.”
Furthermore, the Post argues, they were simply publishing Phillips’ own opinions–which has long been understood to be a constitutionally-protected form of speech.
“[M]ost 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 motion continues. “That man was entitled to offer his subjective point of view, and the Post had a right to report it—as it had a right to report the initial condemnation of the students’ behavior by the responsible diocesan and school officials.”
Additionally, the Post argues that some of what they published about Sandmann and the other Covington Catholic students was substantially true. Truth is always a defense to defamation claims.
The motion explains at length:
The only challenged statement in the initial report that was focused on the individual who turned out to be Sandmann (who was not himself named) was the following quote attributed to Nathan Phillips: “I started going that way [toward the Lincoln Memorial], 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.” Although [Sandmann] asserts that the Post “falsely accused” him of “blocking Phillips’ path” and “refusing to allow Phillips to retreat,” [Sandmann’s] own allegations show that Phillips’s account was substantially true…Sandmann acknowledges that he “did not move from where he was standing when Phillips approached him.”
Finally, the motion to dismiss makes the argument that reporting Sandmann’s alleged blocking of Phillips isn’t actually defamatory at all.
“[I]t is not defamatory in any event to report that Sandmann blocked the other protestor’s path,” the filing argues, because, “Standing one’s ground, even when offensive to others, is celebrated in American culture as a sign of strength and self-possession.”
The Post‘s filing also attempts to rubbish Sandmann’s claim that the outlet was betraying a political motive with their coverage–by arguing that Sandmann’s suit itself was a politically vindictive form of legal harassment:
t[T]he Post’s overall coverage—including the articles that the [lawsuit] fails to mention—was not only accurate; it was ultimately favorable to him. Why, then, bring this lawsuit accusing the Post of engaging in “a modern-day form of McCarthyism,” and demanding $250 million in damages—a number chosen, the [lawsuit] explains, because it is the price Jeff Bezos paid for the Post in 2013? The inflammatory rhetoric of the [lawsuit] and the nonstop public promotion of the suit by Plaintiff’s 3 counsel suggest one motive: to strike a blow against the Post’s allegedly “biased agenda against President Donald J. Trump.”
Sandmann’s lead attorney L. Lin Wood strongly pushed back against the Post‘s claims.
“This lawsuit is not politically motivated,” Wood said via email. “I do not file ‘political’ lawsuits. This lawsuit arises out of false accusations published by the Washington Post against a 16-year old student who was wearing a MAGA cap purchased earlier in the day prior to the events in question.”
Wood also explained why Sandmann’s lawsuit makes note of the Post‘s alleged political motives:
A publisher’s bias and the bias of its sources are relevant in every defamation case and this case is no exception. The bias in this case, political or otherwise, is found in the Post’s coverage and not in Nicholas’ lawsuit which seeks redress for false accusations that permanently damaged his reputation and caused him to suffer emotional distress.
[Image via YouTube screengrab]
Editor’s note: this article has been amended post-publication to include a response from Sandmann’s attorney.