Nick Sandmann Lawsuit against WAPO for $250 Million and Clarence Thomas’ Solo Opinion

 

Two stories have intersected making for intriguing discussions about the First Amendment as well as the laws against defamation.

The first story is the defamation lawsuit of Nick Sandmann against the Washington Post for $250 million. WaPo’s coverage of the confrontation between Sandman and a Native American man exploded into a national story and was fed by the inflammatory and reckless coverage by WaPo and other media outlets. Sandmann’s lawyer, Lin Wood, said, “Nick Sandmann was perceived as an easy target. He is 16. Inexcusable on every level.”

I suspect that the attorney will also include information on the threats, intimidation, and harassment that Sandmann went through, which included his family leaving their home for security reasons, explaining how the extreme coverage endangered all those involved. The lawsuit claims that. . .

. . . the Washington Post ‘ignored the truth and falsely accused Nicholas of, among other things, ‘accost[ing]’ Phillips by ‘suddenly swarm[ing]’ him in a ‘threaten[ing]’ and ‘physically intimidat[ing]’ manner.’

The timing of this story is fascinating, given the solo opinion that Supreme Court Justice Clarence Thomas issued on February 19:

Thomas said the court made a mistake in 1964 when it set a high barrier for public officials to sue the press for defaming them with a false story. That was later expanded to include famous individuals and people who inject themselves into big news stories.

In essence, public officials must show the publishers knew the report was false or otherwise displayed a “reckless disregard” for the truth.

Thomas argued that the framers of the Constitution did not intend such protection when they adopted the 1st Amendment, which forbids ‘abridging the freedom of speech or of the press.’

Justice Thomas clearly didn’t have support on the record from his colleagues.

Still, we can wonder whether his statement will influence the conduct of the Sandmann case, given the freedoms that the press has abused in recent years, I appreciate Lin Wood’s understatement about the lawsuit:

All members of the mainstream and social media mob of bullies who recklessly and viciously attacked Nick would be well-served to read it carefully.

I hope Sandmann is successful.

It’s time to hold the reckless press accountable.

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  1. Susan Quinn Contributor
    Susan Quinn
    @SusanQuinn

    ctlaw (View Comment):

    Sandmann suit against NBC.

    Thanks, @ctlaw. I hope many in the media feel the bite!

    • #61
  2. ctlaw Coolidge
    ctlaw
    @ctlaw

    WaPo memorandum in support of motion to dismiss:

    https://www.courtlistener.com/recap/gov.uscourts.kyed.88372/gov.uscourts.kyed.88372.27.1.pdf

    The extreme smarminess make me think Sandmann may have asked for too little.  Consider the pages from the bottom of 20 to the middle of 23. Absurd assertions of substantial truth and lack of defamation.

    Technically this kind of BS is privileged. And the jury will never see this motion*. But if I was the judge, WaPo just lost any chance of me: 1) overturning the jury if they find a lack of effective retraction; and 2) reducing a jury award as excessive.

    Sandmann response in opposition:

    https://www.courtlistener.com/recap/gov.uscourts.kyed.88372/gov.uscourts.kyed.88372.36.0_2.pdf

    *Of course, if WaPo actually argues this kind of stuff in front of the jury, Sandmannn’s attorneys will be able to point out the sliminess as evidence of malice.

    • #62
  3. Susan Quinn Contributor
    Susan Quinn
    @SusanQuinn

    ctlaw (View Comment):

    WaPo memorandum in support of motion to dismiss:

    https://www.courtlistener.com/recap/gov.uscourts.kyed.88372/gov.uscourts.kyed.88372.27.1.pdf

    The extreme smarminess make me think Sandmann may have asked for too little. Consider the pages from the bottom of 20 to the middle of 23. Absurd assertions of substantial truth and lack of defamation.

    Technically this kind of BS is privileged. And the jury will never see this motion*. But if I was the judge, WaPo just lost any chance of me: 1) overturning the jury if they find a lack of effective retraction; and 2) reducing a jury award as excessive.

    Sandmann response in opposition:

    https://www.courtlistener.com/recap/gov.uscourts.kyed.88372/gov.uscourts.kyed.88372.36.0_2.pdf

    *Of course, if WaPo actually argues this kind of stuff in front of the jury, Sandmannn’s attorneys will be able to point out the sliminess as evidence of malice.

    Thanks so much, @ctlaw. I so appreciate being kept abreast of this case, and also your comments from a legal perspective!

    • #63
  4. ctlaw Coolidge
    ctlaw
    @ctlaw

    WaPo reply to Sandmann response

    https://www.courtlistener.com/recap/gov.uscourts.kyed.88372/gov.uscourts.kyed.88372.37.0.pdf

    https://www.courtlistener.com/recap/gov.uscourts.kyed.88372/gov.uscourts.kyed.88372.37.1.pdf

    It’s fairly laughable.  

     

    CNN memorandum in support of motion to dismiss

    https://www.courtlistener.com/recap/gov.uscourts.kyed.88577/gov.uscourts.kyed.88577.31.1.pdf

    Sandmann response to CNN motion to dismiss:

    https://www.courtlistener.com/recap/gov.uscourts.kyed.88577/gov.uscourts.kyed.88577.37.0.pdf

    • #64
  5. Susan Quinn Contributor
    Susan Quinn
    @SusanQuinn

    ctlaw (View Comment):

    WaPo reply to Sandmann response

    https://www.courtlistener.com/recap/gov.uscourts.kyed.88372/gov.uscourts.kyed.88372.37.0.pdf

    https://www.courtlistener.com/recap/gov.uscourts.kyed.88372/gov.uscourts.kyed.88372.37.1.pdf

    It’s fairly laughable.

     

    CNN memorandum in support of motion to dismiss

    https://www.courtlistener.com/recap/gov.uscourts.kyed.88577/gov.uscourts.kyed.88577.31.1.pdf

    Sandmann response to CNN motion to dismiss:

    https://www.courtlistener.com/recap/gov.uscourts.kyed.88577/gov.uscourts.kyed.88577.37.0.pdf

    @ctlaw, you are terrific!! I haven’t read the details yet, but the section headings alone point the absurdities of the responses, in both the WaPo and CNN document. And essentially the response comes back and says, Nope: You’re wrong. Amazing.

    • #65
  6. Full Size Tabby Member
    Full Size Tabby
    @FullSizeTabby

    I find morbidly amusing that both the Washington Post and CNN continue to “spin” the story as though Mr. Sandmann and his fellow high school students were the aggressors in the confrontation with the drum-wielding activist, notwithstanding all the counter information that has come out. But I realize that the companies are aiming more for the public narrative than for court testimony precision. 

    • #66
  7. ctlaw Coolidge
    ctlaw
    @ctlaw

    Dismissal of WaPo Suit:

    https://www.courtlistener.com/recap/gov.uscourts.kyed.88372/gov.uscourts.kyed.88372.47.0.pdf

     

    NBC motion to dismiss. 

    https://www.courtlistener.com/recap/gov.uscourts.kyed.89044/gov.uscourts.kyed.89044.21.1.pdf

    • #67
  8. Susan Quinn Contributor
    Susan Quinn
    @SusanQuinn

    ctlaw (View Comment):

    Dismissal of WaPo Suit:

    https://www.courtlistener.com/recap/gov.uscourts.kyed.88372/gov.uscourts.kyed.88372.47.0.pdf

     

    NBC motion to dismiss.

    https://www.courtlistener.com/recap/gov.uscourts.kyed.89044/gov.uscourts.kyed.89044.21.1.pdf

    Thanks, @ctlaw. The WaPo ruling was a joke. I understand that Sandmann should see justice farther along. And I assume they will appeal WaPo. No one is safe from politics anymore.

    • #68
  9. ctlaw Coolidge
    ctlaw
    @ctlaw

    Susan Quinn (View Comment):
    The WaPo ruling was a joke. I understand that Sandmann should see justice farther along. And I assume they will appeal WaPo.

    There are several places where the judge clearly does not view things in the light most favorable to the non—moving party (Sandmann).

    • #69
  10. Sisyphus Member
    Sisyphus
    @Sisyphus

    The WaPo dismissal is being appealed, and on the merits should find in Sandmann’s favor. Of course, on the merits the dismissing judge should be impeached and removed from office. And maybe sentenced to listen to kettle drums until his hearing goes.

    • #70
  11. Susan Quinn Contributor
    Susan Quinn
    @SusanQuinn

    Sisyphus (View Comment):

    The WaPo dismissal is being appealed, and on the merits should find in Sandmann’s favor. Of course, on the merits the dismissing judge should be impeached and removed from office. And maybe sentenced to listen to kettle drums until his hearing goes.

    Hear! Hear! (or maybe not . . .)  ;-)

    • #71
  12. ctlaw Coolidge
    ctlaw
    @ctlaw

    Sisyphus (View Comment):

    The WaPo dismissal is being appealed, and on the merits should find in Sandmann’s favor. Of course, on the merits the dismissing judge should be impeached and removed from office. And maybe sentenced to listen to kettle drums until his hearing goes.

    He’s an 83 year old Carter appointee on “senior status” for the last 18 years. 

    https://en.wikipedia.org/wiki/William_Odis_Bertelsman

    • #72
  13. Goldwaterwoman Thatcher
    Goldwaterwoman
    @goldwaterwoman

    Susan Quinn: It’s time to hold the reckless press accountable.

    Their rights should end where ours begin.

    • #73
  14. ctlaw Coolidge
    ctlaw
    @ctlaw

    In the WaPo case, the judge has granted partial reconsideration under Rule 60:

    The Court will adhere to its previous rulings as they pertain to these statements except Statements 10, 11, and 33, to the extent that these three statements state that plaintiff “blocked” Nathan Phillips and “would not allow him to retreat.”

    The Court also notes that the proposed First Amended Complaint makes specific allegations concerning the state of mind of Phillips, the principal source of these statements. It alleges in greater detail than the original complaint that Phillips deliberately lied concerning the events at issue, and that he had an unsavory reputation which, but for the defendant’s negligence or malice, would have alerted defendant to this fact. The proposed First Amended Complaint also alleges that plaintiff could be identified as the subject of defendant’s publications by reason of certain photographs of plaintiff and the videos. This should also be the subject of proof.2

    Of course, these allegations will be subject to discovery and summary judgment practice. However, they do pass the requirement of “plausibility.”

    So Sandmann gets to engage in discovery regarding those specific statements.

    • #74
  15. ctlaw Coolidge
    ctlaw
    @ctlaw

    Following in the steps of the WaPo case, both the CNN and NBC cases can go forward on potentially narrowed issues. There are slightly different issues at present. Although the CNN order came before the NBC, NBC is similar to WaPo in that the court had to hold that references to Sandmann blocking Phillips were too objective to be dismissed as permissible leftist lies under the guise of opinion. The CNN order related to allowing Sandmann to file an amended complaint where he would presumably made similar allegations.

    CNN:

    https://legalinsurrection.com/wp-content/uploads/2019/11/Sandmann-v.-CNN-Order-Denying-Motion-to-Dismiss.pdf

    Technically, CNN can still file a motion to dismiss the amended complaint. But presumably it will be only partially dismissed.

    NBC:

    https://www.courtlistener.com/recap/gov.uscourts.kyed.89044/gov.uscourts.kyed.89044.43.0.pdf

    Therefore, as in the two related cases, the Court finds that the statements that plaintiff “blocked” Phillips or did not allow him to retreat, if false, meet the test of being libelous per se under the definition quoted above. 

    h/t Legal Insurrection

    • #75
  16. Susan Quinn Contributor
    Susan Quinn
    @SusanQuinn

    ctlaw (View Comment):

    Following in the steps of the WaPo case, both the CNN and NBC cases can go forward on potentially narrowed issues. There are slightly different issues at present. Although the CNN order came before the NBC, NBC is similar to WaPo in that the court had to hold that references to Sandmann blocking Phillips were too objective to be dismissed as permissible leftist lies under the guise of opinion. The CNN order related to allowing Sandmann to file an amended complaint where he would presumably made similar allegations.

    CNN:

    https://legalinsurrection.com/wp-content/uploads/2019/11/Sandmann-v.-CNN-Order-Denying-Motion-to-Dismiss.pdf

    Technically, CNN can still file a motion to dismiss the amended complaint. But presumably it will be only partially dismissed.

    NBC:

    https://www.courtlistener.com/recap/gov.uscourts.kyed.89044/gov.uscourts.kyed.89044.43.0.pdf

    Therefore, as in the two related cases, the Court finds that the statements that plaintiff “blocked” Phillips or did not allow him to retreat, if false, meet the test of being libelous per se under the definition quoted above.

    h/t Legal Insurrection

    Thanks again, @ctlaw. So much appreciated!! I’ll look these over.

    • #76
  17. ctlaw Coolidge
    ctlaw
    @ctlaw

    CNN case settled on undisclosed terms. Fox19.com:

    …A lawsuit is expected to be filed against Phillips, Wood said. He indicated that lawsuit would seek $5 million, but the judge said that Phillips does not have as much money as the other defendants.

    They also plan to sue Gannett, owners of The Enquirer, according to Wood.

    He said he will bring that to the judge in the next 60 days.

    Attorneys say the money they’re seeking is not designed to compensate Nick, but to “deter the defendants” from doing the same thing (that they’re accused of) in the future.

    • #77
  18. Susan Quinn Contributor
    Susan Quinn
    @SusanQuinn

    ctlaw (View Comment):

    CNN case settled on undisclosed terms. Fox19.com:

    …A lawsuit is expected to be filed against Phillips, Wood said. He indicated that lawsuit would seek $5 million, but the judge said that Phillips does not have as much money as the other defendants.

    They also plan to sue Gannett, owners of The Enquirer, according to Wood.

    He said he will bring that to the judge in the next 60 days.

    Attorneys say the money they’re seeking is not designed to compensate Nick, but to “deter the defendants” from doing the same thing (that they’re accused of) in the future.

    Thanks again, @ctlaw. I especially like the sentence I put in bold! Pretty honorable (and maybe more realistic than going for damages).

    • #78
  19. cdor Member
    cdor
    @cdor

    Susan Quinn (View Comment):

    ctlaw (View Comment):

    CNN case settled on undisclosed terms. Fox19.com:

    …A lawsuit is expected to be filed against Phillips, Wood said. He indicated that lawsuit would seek $5 million, but the judge said that Phillips does not have as much money as the other defendants.

    They also plan to sue Gannett, owners of The Enquirer, according to Wood.

    He said he will bring that to the judge in the next 60 days.

    Attorneys say the money they’re seeking is not designed to compensate Nick, but to “deter the defendants” from doing the same thing (that they’re accused of) in the future.

    Thanks again, @ctlaw. I especially like the sentence I put in bold! Pretty honorable (and maybe more realistic than going for damages).

    The problem could be that real deterrence would take a whole lotta dough. A few million wouldn’t have much effect.

    • #79
  20. ctlaw Coolidge
    ctlaw
    @ctlaw

    In a recent filing:

    https://www.courtlistener.com/recap/gov.uscourts.kyed.88372/gov.uscourts.kyed.88372.78.0.pdf

    Sandmann says he intends to file further actions against:

    (a) Gannett Co., Inc. (“Gannett”);

    (b) ABC, Inc., ABC News, Inc., The Walt Disney Company (“ABC”);

    (c) ViacomCBS, Inc., CBS News, Inc., CBS Interactive, Inc. (“CBS”);

    (d) The New York Times Company;

    (e) Wenner Media, LLC d/b/a “Rolling Stone.”

     

     

    • #80
  21. ctlaw Coolidge
    ctlaw
    @ctlaw

    ABC

    https://www.courtlistener.com/docket/16974501/sandmann-v-abc-news-inc/?filed_after=&filed_before=&entry_gte=&entry_lte=&order_by=desc

    Rolling Stone

    https://www.courtlistener.com/docket/16974502/sandmann-v-rolling-stone-llc/?filed_after=&filed_before=&entry_gte=&entry_lte=&order_by=desc

    CBS

    https://www.courtlistener.com/docket/16974503/sandmann-v-cbs-news-inc/?filed_after=&filed_before=&entry_gte=&entry_lte=&order_by=desc

     

    All re-assigned to Judge Bertelsman who handled the first three. Sandmann will have an uphill battle.

    • #81
  22. Susan Quinn Contributor
    Susan Quinn
    @SusanQuinn

    ctlaw (View Comment):

    ABC

    https://www.courtlistener.com/docket/16974501/sandmann-v-abc-news-inc/?filed_after=&filed_before=&entry_gte=&entry_lte=&order_by=desc

    Rolling Stone

    https://www.courtlistener.com/docket/16974502/sandmann-v-rolling-stone-llc/?filed_after=&filed_before=&entry_gte=&entry_lte=&order_by=desc

    CBS

    https://www.courtlistener.com/docket/16974503/sandmann-v-cbs-news-inc/?filed_after=&filed_before=&entry_gte=&entry_lte=&order_by=desc

     

    All re-assigned to Judge Bertelsman who handled the first three. Sandmann will have an uphill battle.

    @ctlaw, any thoughts on what the heck is doing on?

    • #82
  23. ctlaw Coolidge
    ctlaw
    @ctlaw

    The consolidation with one judge is common. This judge is the problem. 

    He ridiculously dismissed the WaPo case asserting all statements were per se not defamatory. Faced with being slammed on appeal, he relented and admitted that only the assertion Sandmann “blocked” Phillips could be defamatory.

    The new complaints seem to mine the record for statements/implications similar to “blocked”. Consider the CBS complaint:

    165. CBSN, whose coverage emphasized that Nicholas “positioned himself,” “aligned himself,” and “put[] himself in front of [Phillips]” in order to “stop[] [Phillips’] exit” from the January 18 Incident contributed to the rampant cyber-assault and cyberbullying suffered by Nicholas in the aftermath of its reporting, which was also undertaken in mass by the mob of other bullies made up of other members of the mainstream media, individuals on Twitter, church officials, celebrities, and politicians.

    • #83
  24. Susan Quinn Contributor
    Susan Quinn
    @SusanQuinn

    ctlaw (View Comment):
    The new complaints seem to mine the record for statements/implications similar to “blocked”. Consider the CBS complaint:

    Thanks, @ctlaw. It makes me so angry to see this nonsense going on. I appreciate your insight.

    • #84
  25. Western Chauvinist Member
    Western Chauvinist
    @WesternChauvinist

    Susan Quinn (View Comment):

    ctlaw (View Comment):
    The new complaints seem to mine the record for statements/implications similar to “blocked”. Consider the CBS complaint:

    Thanks, @ctlaw. It makes me so angry to see this nonsense going on. I appreciate your insight.

    Injustice. It’s an injustice. The powerful are a protected class in our judicial system. 

    • #85
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