Defamation
A while back, we noted that there was something of a Rorschach test in how you viewed basically everything about Nick Sandmann, the MAGA-hat wearing high school student who became front page news after a video of him standing in front of a Native American demonstrator, Nathan Phillips, went viral. Everyone had their own interpretations. Context was often lacking. People’s personal beliefs may have clouded their own interpretations — across the board. But, as we noted, people’s own interpretations of what they saw… just is not defamatory. But Nick Sandmann sued anyway. He sued a whole bunch of media companies. And his fans (generally those in the Trump world), insisted he was going to end up owning these companies.
It’s still not entirely clear why, but two of the companies, the Washington Post and CNN chose to settle the lawsuits. Considering a court had initially dismissed the WaPo suit, and only reinstated it on very narrow grounds (that still seemed unlikely to win), and the fact that the lawsuit against CNN was on shaky ground as well, basically anyone with any experience with defamation law assumed that the settlement was at what’s generally known as “nuisance fee” levels: a pittance — less than it would cost to pay the lawyers to win the suit, just to make the kid and his lawyers go away. Of course, his fans ridiculously assumed that the settlement meant he got the full hundreds of millions he sued over. And some very ignorant media folks implied something similar. But, almost everyone agrees that Sandmann probably got in the low to mid-five figures. Not bad for a student, but not exactly lifechanging either.
Indeed, Sandmann’s former lawyer (who he eventually fired) more or less gave away the fact that the settlements were nuisance fees when he threatened to sue CNN on air talent for merely speculating that the amounts were tiny nuisance fees (around $25k) — arguing that their speculation broke the confidentiality agreement in the settlement. If he’d actually made $250 million like some people thought, speculating that the amount was $25k… wouldn’t have broken any confidentiality agreement, because it wasn’t the confidential amount. The only way that speculation could possibly be tied to the agreement was… if the amount basically was $25k.
So, yeah, the WaPo and CNN caved in and settled. Probably because it was cheaper to do so. But, of course, that also highlights how both of them are willing to settle clearly bogus defamation lawsuits, which isn’t great.
And… it’s looking like an even more terrible decision to settle now that basically all of the other Sandmann lawsuits against media orgs got dismissed, fairly easily, in one fell swoop.
Now, there is an oddity in this case that is worth highlighting: even though the lawsuits are against media companies, they’re actually over a statement made by Phillips, claiming that Sandmann blocked his way. This was the only statement that the judge reinstated in the WaPo case, and which the court allowed to remain in all the other cases. This was because this was the only statement that might possibly be factual, if there were some evidence to back it up — so discovery was allowed on that point alone.
The court details the procedural history of the cases, including the WaPo and CNN settlements, how a bunch of other media orgs (NY Times, CBS, ABC, Gannett, and Rolling Stone) were sued as well, and how that very limited discovery was allowed. There was a deposition of Sandmann, which even the court notes “contains relatively little testimony pertinent to the issue at hand.” And then declarations from from Phillips and some other witnesses on the day of the confrontation.
It doesn’t sound like any of these actually mattered all that much. There were also twenty different videos of the events of the day that were submitted — a reminder of how that same event was viewed from so many different perspectives (literally and figuratively).
The court then more or less telegraphs what it is thinking regarding all of this:
In the Court’s view, six of the videos show the specific encounter between Sandmann and Phillips in helpful respects. What a viewer might conclude from these videos is a matter of perspective.
A matter of perspective is… not defamatory.
Then we get to the analysis and… as lots of us predicted on the very day Sandmann started suing, it does not go well for Sandmann. Sandmann’s lawyers tried to get around the kinda important question of whether or not the statements he was suing over were statements of fact (which could potentially be defamatory) or statements of opinion (which cannot). He argued that the “law of the case” doctrine prevented the court from considering that issue, which the court rightly pointed out is utter nonsense.
Sandmann first argues that the Court cannot now consider the fact-or-opinion issue because of the law of the case doctrine. This argument is without merit.
After explaining why it has no merit (which is not worth going into in this post, but suffice it to say that “law of the case” doctrine makes no sense here, because it’s about issues that are already settled and the court had explicitly said that these issues were not settled and would be revisited at this stage of the case), the court also notes that it’s particularly ridiculous for Sandmann to argue that this was a settled issue when…
Finally, Sandmann’s insistence that the Court cannot now revisit this legal issue is ironic considering that he vigorously, and successfully, moved the Court to reconsider its initial ruling in The Post case.
Then we move on to the main show: were the statements factual? Or were they opinion — and thus categorically not defamation. The key statement at issue were Phillips’ claim that Sandmann “just blocked my way and wouldn’t allow me to retreat.”
The court notes that this is, clearly, Phillips opinion of the situation at hand:
Instead, a reasonable reader would understand that Phillips was simply conveying his view of the situation. And because the reader knew from the articles that this encounter occurred at the foot of the Lincoln Memorial, he or she would know that the confrontation occurred in an expansive area such that it would be difficult to know what might constitute “blocking” another person in that setting.
Generally, “blocking” is an imprecise term capable of different meanings that “lacks a plausible method of verification.” Croce, 843 F. App’x at 715 (citation omitted). In particular, because of the context in which this encounter occurred—the large, open area adjacent to the Lincoln Memorial— the blocking statement simply cannot be proven to be either true or false. Had such an encounter occurred in a small or confined area, a statement that one person was “blocked” by another might be objectively verifiable. But it is not here.
The judge then continues to kick an already dead Sandmann argument:
Interestingly, plaintiff’s responsive memorandum to the joint motion for summary judgment argues that “blocking” is factual because “it involves the oppositional position of two human bodies in a confined space.” (Case No. 20cv23, Doc. 61 at 42) (emphasis added). But, as the videos depict, the area where this encounter occurred was a huge, outdoor setting, not a confined space.
Ooops.
The court goes on to note that since Phillips is conveying his own view of Sandmann’s state of mind, it’s obvious that he’s not conveying facts, but rather his opinion of the situation. Sandmann’s own depositions more or less sinks his argument here. From a footnote in the ruling:
Sandmann’s own deposition testimony illustrates the unverifiability of someone’s state of mind. Sandmann was asked whether it was possible “that Phillips was trying to see if you guys [Sandmann and his friend, Cameron] would both move to create a path for him to go towards what would now be where you are standing?” (Sandmann Dep. at 238:1–6). This of course required Sandmann to speculate and prompted him to answer “It’s possible he was thinking that. Again, he never made that clear.” (Id. at 238:12–13). He was then asked if this was because “he [Phillips] didn’t articulate it?” (Id. at 238:15–16). To which he responded “Correct.” (Id. at 238:17). Phillips’s intent in that moment is not objectively verifiable, the same way Sandmann’s intent in that moment is not objectively verifiable. The Court must look at the meaning of the statements when they were made, without reference to post hoc explanations.
And, since speculation on someone else’s state of mind is incapable of being proven true or false, it cannot be a statement of fact… and therefore cannot be defamatory.
The fact that the media orgs being sued reported on Phillips’ statements doesn’t magically make it defamatory:
The media defendants were covering a matter of great public interest, and they reported Phillips’s first-person view of what he experienced. This would put the reader on notice that Phillips was simply giving his perspective on the incident.
And thus…
Therefore, in the factual context of this case, Phillips’s “blocking” statements are protected opinions. This holding moots all other motions before the Court.
Again, it seemed quite obvious that this was going to be the eventual outcome of the case to anyone with even a modest level of experience with defamation cases. The WaPo and CNN settlements were likely because the nuisance fees of paying him off were even less costly than going through with the minimal discovery that occurred. But if they had gone through with it, as this ruling makes clear, the case would have been dismissed. There was no defamation there.
And it doesn’t look like Nick Sandmann is going to be owning CNN any time soon.
Filed Under: defamation, nathan phillips, nick sandmann, opinion, slapp suit, state of mind
Companies: abc, cnn, gannett, ny times, rolling stone, washington post
Hey, Sandmann. Time to go to sleep now, yeah?
He’s off to never-never-land, I take it.
No. The Tooth Fairy’s castle for tea with her, Jack Frost, and the Easter Bunny. Santa Claus was also invited, but he was just too busy with starting his preparations for Christmas.
I was quoting the chorus to Metallica’s greatest hit, “Enter Sandman”:
Exit Light
Enter Night
Take My Hand
We’re off to never-never-land
Did you understand where I got that reference from? I realize the irony of quoting anti-fan Napster-litigators Metallica on Techdirt, but considering that we were talking about a person whose last name is “Sandmann”, I think the reference was fitting and appropriate.
I’m not a Metallica fan because they hate their fans, so I didn’t pick up on the reference. Some things are just obscure to some people, no matter how popular they are.
In my view the heartfelt apology interview patched over the whole Napster thing for me.
You also don’t see the problem with Song of the South and believe that Americans can’t watch it due to ‘localised censorship’ that can’t actually happen whilst eBay and Facebook exist, so…
What does ebay and Facebook have to do with anything? And what does song of the south have to do with Metallica.
You have a right to set your own standards on what you will or won’t buy.
Your moral stand of sorts.
Personally, I don’t really care that they went after Napster in the first place. you clearly do. Whatever minor, irritation, I felt was covered in the apologies to fans.
What is it you you and your drive to force conformance? Most fans continued to buy their work. Even if you stopped.
We are all free to make our own purchasing choice. I chose the music.
If you don’t remember the comments that you yourself wrote, there’s no help for you.
I remember clearly what I wrote. About Metallica, Song, censorship, etc.
I just have a different starting point for what is censorship than you do.
Being able to order a film from another country doesn’t stop it from being banned in your country. It just means you can bypass censorship.
That’s the exasperating aspect from my view.
So many, including you, apparently, ignore localised censorship simply because it can be bypassed.
Go somewhere else.
You assume ordering from ebay will let your order make it through customs. That’s not a guarantee.
Maybe in the EU, with the single market. But not for Australia and the US where a single DVD may or may not make it over the border.
Song of the South isn’t banned here, actually, so it hasn’t been censored. Disney may have chosen not to release it on video in the US, but that didn’t stop my parents buying it on musicMagpie when I was 15 or 16.
And I’m not talking about bans in context to song of the south.
I’m talking about censorship which edits, or removes, or otherwise blocks access.
It can be done by governments, or private institutions, or individuals.
It can be nation wide, or local. It can be across all access, or a single service.
And in order to count as censorship, it has to be successful. Disney’s attempted censorship of Song of the South in the US doesn’t count because it wasn’t successful due to its release of the movie in othrr markets. m-/
And I’m not talking about bans in context to song of the south.
Liar.
The federal government didn’t ban song of the south. Local censorship boards in the US did, though. Such local censorship boards have since been declared unconstitutional.
Disney not releasing the film to video in the is the definition in action of editorial censorship. Private, legal, censorship.
Based on your premise, again, there is no censorship going on in China because all that web stuffs is still accessible elsewhere.
The idea that censorship can be local, just appears to go right over your head!
Why else, besides censorship and lack thereof, would there be 17 different, licensed, legal, versions in the US of Cannibal Holocaust? Each with different runtimes and scenes. Only one of which is “nearly complete”.
Here’s a thought, do the VHS/DVD/HDDVD/BD “uncensored” version not qualify as uncensored if the government didn’t edit the original, or alternate, release?
Come back down from your political ladder! Down here in earth, we live in reality.
So you change your story again, but you’re still lying because Song of the South has never been banned. If it had been, it couldn’t have made $3.3 million dollars at the box office in its first year. Furthermore, there were no “local censorship boards”. They weren’t needed because the Hays Code was very much in effect in 1946. And yes, a studio cutting a movie is very much censorship, but equating that to a studio not releasing a movie on video in one territory is a false equivalence. Finally, I’ve never claimed that only governments can censor, so that obvious strawman is yet another fallacy from you.
Come back down from your political ladder! Down here in earth, we live in reality.
That’s excellent advice, so why don’t you follow it, you racist piece of shit?
Zip-a-dee-doo-dah, zip-a-dee-ay
I am gonna hack your network today
Shitload of trojans heading your way
Zip-a-dee-doo-dah, zip-a-dee-ay
With one eye open.
Clutching his pearls tight.
Enter light-bringer. The Morning Star.
Knowledge that the king of kings has gone too far.
If I die before I wake.
My sword and shield I shall take.
Legions’ armies do unfold
To do greet deeds as yet untold.
Nicholas Sandmann is quite wealthy and the Wisconsin young man is going to be wealthy soon dummy!!!!!!!
And it doesn’t look like Nick Sandmann is going to be owning CNN any time soon.
What are the odds that his lawyer now owns him?
Thors Provoni, is that you?
My view at the time was that WaPo was a bit too quick to be first to report on what had happened and managed to overstate the situation. And because Sandmann was not public figure, they faced a tough situation. Settling for a small amount of money (assuming that is what it was) was sensible.
I handled a libel defense thirty years ago where entering a nuisance settlement was better than taking the risk of going to trial in a hostile environment. We were even able to make clear that it was a nuisance settlement without violating the confidentiality clause, because we were not barred from saying that it was the plaintiff who had demanded confidentiality.
The WaPo report was so slapped together rushed that it was probably easier to simply make it go away. They have enough of a problematic image in the first place. A drawn out court case in public, win or loose, would have put an even bigger target on them.
WaPo doesn’t exactly try to hide its bias in general.
Last thing they needed was protestors at their offices.
My guess on CNN is speed and cost. The station has long been a money hole.
You figure a pile of unmarked. On-sequential bills and a signed contract (agreement) is a quick way to make things go away. The cost of high paid lawyers to litigate a defamation case agains a political martyr…
Due to the ballyhoo’ing on the part of Sandmann’s sycophants, I got curious and did what I always do before a major (over 6 figure) purchase and pulled the SEC 10-Q’s.
Sure, settlements are frequently confidential. Settlements on the magnitude Sandmann was seeking would result in a change in ownership of one degree or another, therefore would be a required disclosure.
No such disclosures were made.
I looked into Sandmann’s life style, what there was of it. No big changes there either. What kid getting millions and millions of dollars could resist doing at least a little splurge on new (and expensive) toys? None I know of. No new toys reported or observed.
I therefore concluded that no significant settlements occured.
Sandmann got told to “Go pound sand” was my ultimate take away from that.
I was willing to give Sandmann the benefit of the doubt at first, at least as much as any MAGA hat wearer deserves, but as the famous quote goes, it’s better to remain silent and be thought a fool than to sue for defamation and to remove all doubt.
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They deserve more benefit of the doubt than the filthy baby killers using abortion as birth control (not counting rape incest or medical reasons)
filthy baby killers
You should seek professional help for that admitted mental illness of yours.
You’re so right. We should also ban periods because each one is a pregnancy that didn’t happen, and every ovum lost that way is also murder. /s
Sure thing slaver.
“filthy baby killers”. Hmmm, I think I have glimpsed the reason for wish to post as anonymous…
So that makes you anonymous fucking twat.
Just fuck off and live in a state where it’s banned, then.
Dumbass.
Both sides are making way too much out of this! It is the right of the state to legislate what the federal government does not.
I’m still looking for republicans to stand up for cancer. They stick up for neoplasia in the womb. They don’t like killing viri. But nobody defends cancer.
Why is that?
The words ‘viri’ and ‘virii’ are proscribed. The correct plural of ‘virus’ is ‘viruses’. To paraphrase They Might Be Giants, “Put a little Google in your soul.”
Proper Latin is viri. Even if modern practice is less accurately pushed.
And no, no Google search for me. I use Bing: better results.
Thanks though.
I used Bing just as you suggested (although I still prefer DuckDuckGo), and it threw up this dictionary entry. As I said before, ‘viri’ is proscribed, and is thus far from correct.
Prescribed, means suggested against. Es is based on modern (church) Latin. Where science uses classical.
And why are we fighting over it? Seriously. Am I not otherwise on your side here, despite our lingual variation?
Prescribed, means suggested against.
Seriously? I’ll have to tell my physician that the next time she prescribes a medication because she thinks it will help me.
Totally different usage blockhead
proscribed
Some authorities or commentators recommend or warn against the listed usage
— Wiktionary
That’s not what you said, blockhead.
Your words: Prescribed, means suggested against.
Do you remember now, hypocrite?
Prescribed, {sic} means suggested against
Don’t be a troll. It was an autocorrect error.
An “autocorrect error” you backed by doubling down on it, and you have the cheek to call me a troll when your own past behavior provides far more examples. Mr. Pot, meet Mr. Kettle.
Taken in context the technical error is of no concern
I’m completely correct. Just because some do not like the usage doesn’t make it any less acceptable the the rest.
I’m completely correct.
*points to comment containing word ‘viri’ above*
Oh yeah? Why don’t you tell that to these people?
I was talking about Sandmann, nobody else.
What do any of those cases have to do with this one?
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Ask JMT. They’re the one who generalized.
… said nobody literate, ever.
So not surprising to see you telling the same lie yet again.
Projected the lying troll.
[Hallucinates facts not in evidence as always]
Every accusation a confession. Remember, I can see the comment you replied to as well, proving that the only one lying is you.
the only one lying is you.
It is impossible for that statement to be true, as i’m not the one who lied about JMT’s comment.
So not only did you pretend JMT made no generalization, which is a lie, but you’re projecting your moral issue of lying onto others, thus continuing to lie.
Nobody literate would call “referring to one specific action by one specific person” generalization.
Yet you do.
Ask JMT. They’re the one that generalized.
Makes me want to sue CNN and WaPo for being a nuisance.
Whypipo, teach their young that their privilege doesn’t mean no one can hurt their feels.
But then if Devin Nunes had learned this we never would have have the joy of watching an elected offical suing an imaginary cow…
Why do insist on calling my mom imaginary?
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