Judge Rules Nick Sandmann’s Lawsuit Against Washington Post Can Be Reopened
[guest post by Dana]
I sure didn’t expect this. The decision comes with limits, however :
After reviewing an amended complaint, Judge William Bertelsman ordered Monday that the case could enter the discovery phase and hence a portion of the lawsuit against the newspaper could continue.
Nick and his attorneys had alleged that the gist of a Washington Post article conveyed that Nick had assaulted or physically intimidated Nathan Phillips and engaged in racist conduct after the Right to Life March in Washington D.C. on Jan. 18.
[…]
Sandmann’s lawyers argue that the Washington Post incorrectly characterized the teen as the aggressor in the situation and exposed him to public ridicule.
Bertelsman said in the order that he stands by his decision that 30 of the 33 statements Sandmann’s lawyers argued were libelous were not, but that “justice requires” further review of three of the statements.
“These three statements state that (Sandmann) ‘blocked’ Nathan Phillips and ‘would not allow him to retreat,'” the order reads.
The judge’s order that discovery can continue means Sandmann’s legal team can make requests for internal Washington Post documents concerning the events like emails and communications between editors and reporters.
The Sandmann family and their lawyer count this as a huge victory:
Attorney Todd V. McMurtry, who represents the Sandmann family with attorney L. Lin Wood, called the judge’s order a “huge victory.”
“The Sandmann family and our legal team are grateful that Judge Bertelsman has allowed the case to proceed,” said Mr. McMurtry in an email. “The Court’s ruling preserves the heart of the Nicholas Sandmann’s claims. We can consider this a huge victory and look forward to initiating discovery against the Washington Post.”
As a reminder, two separate defamation lawsuits have been filed against CNN and NBCUniversal by the Sandmann’s lawyer. Both media outlets deny that they defamed Sandmann and have taken steps for dismissal.
(Cross-posted at The Jury Talks Back.)
–Dana
Hello.
Dana (05f22b) — 10/28/2019 @ 7:05 pmSomehow Mr. McMurty evokes for me a billboard that advertises a local law firm in Fort Lauderdale
Ambulances chase us!
Kishnevi (dfca54) — 10/28/2019 @ 7:37 pmI think the Washington Post messed this story up terribly, and needed to issue a correction, which they did within a day I believe.
But to sue a media outlet for getting a story wrong seems bizarre.
Like, if some of the coverage of this Katy congresswoman ends up being incorrect, should she get to sue RedState? Or JVW for his previous post? That seems pretty ludicrous to me.
If Dana messed up her story here in a way that harms the Washington Post’s reputation, do they get to sue her? They sure shouldn’t get to.
nate_w (5efffe) — 10/28/2019 @ 8:05 pmHeh.
Dana (05f22b) — 10/28/2019 @ 8:17 pmAnd Nick Sandmann evoked for so many racism and hate so strong they wanted to do him violence without seeking to know anything more than the smear they were hand fed.
Take’em to the cleaners kid, even when they knew it was a smear they doubled down.
harkin (337580) — 10/28/2019 @ 9:27 pm“And Nick Sandmann evoked for so many racism and hate so strong they wanted to do him violence without seeking to know anything more than the smear they were hand fed.”
Cool. Now do David Hogg or Greta Thunberg.
Davethulhu (fe4242) — 10/28/2019 @ 10:18 pmThe discovery should be fun. Hope nothing leaks.
Kevin M (19357e) — 10/28/2019 @ 11:09 pmMay God bless this young man.
mg (8cbc69) — 10/28/2019 @ 11:11 pmCan he sue Dustin?
mg (8cbc69) — 10/28/2019 @ 11:11 pmDemocracy may die in darkness, but discovery is gonna be fun!
B.A. DuBois (80f588) — 10/29/2019 @ 4:37 amKishnevi (dfca54) — 10/28/2019 @ 7:37 pm
LOL.
mg (8cbc69) — 10/28/2019 @ 11:11 pm
Oh-no-you-didn’t!
felipe (023cc9) — 10/29/2019 @ 4:38 amI thought Wapo printed a retraction a few days later when it was clear they got the initial story wrong?
Time123 (6e0727) — 10/29/2019 @ 4:51 amIf that’s all there was to it, this would be bizarre. But at issue is whether The Post simply got the story wrong, or deliberately ignored the truth so as to paint the plaintiff in an unfair light.
If “We just got the story wrong” were an absolute defense against defamation claims, then any newspaper in the country could print the wildest lies about anyone — knowing full well that they are lies — and hide behind that defense.
Chuck Bartowski (bc1c71) — 10/29/2019 @ 6:52 amOf course, the standard here is “reckless disregard for the truth”
So it depends on whether they had a reason to know that what they were being told by Nathan Phillips et al was wrong. It also must be defamatory.
12. Time123 (6e0727) — 10/29/2019 @ 4:51 am
Maybe it was clear a lot sooner than that. And it was maybe clear even before that a lot of details were wrong. As soon as the video posted and somebody told them.
Maybe they did it only when their own reputation was in danger or when they were thratended with a lawsuit. I am not that familiar with the details.
Of course, a retraction limits the damages.
Sammy Finkelman (fe8737) — 10/29/2019 @ 7:00 amUnderstand that while malice is an important part of the definition of “defamation” in America, it’s not nearly the whole definition. Courts have held on numerous occasions that “reckless disregard for truth” can also constitute defamation, especially in the case of libel (where a defamatory statement is printed or otherwise recorded). If the Nick Sandmann case doesn’t constitute reckless disregard for the truth, what does?
Gryph (08c844) — 10/29/2019 @ 7:00 am14. A retraction might limit the monetary damages, but it does not automatically absolve one of responsibility for slander or libel, particularly if it can be proven that A) there was actual economic harm suffered, and B) the defamed individual did not seek their status as a public figure. Also, economic harm does not have to be lost job or schooling opportunities, although they tend to be the easiest to quantify.
Gryph (08c844) — 10/29/2019 @ 7:03 amAnd that’s the problem, as far as I can tell from my casual knowledge of Kentucky law, Chuck. It is the “rule of decision”, the law the federal court must apply, and it is not friendly to “false light” as an alternative to traditional defamation.
At the same time, WaPo has the usual array of defenses under Gertz v. Welch and progeny. For example, even a private individual is limited to “actual damages” (whatever that means) and must show “actual malice” (whatever that means) to collect punitive damages.
nk (dbc370) — 10/29/2019 @ 7:04 am“Reckless disregard for the truth” is one definition of “actual malice”, guys.
nk (dbc370) — 10/29/2019 @ 7:05 amNick Sandmand’s lawyers also want to know if perhaps the Washington Post knew – really knew – all along that the story was wrong but ran it for political or “friendship with sources” reasons, thinking the truth could never be established.
It could also maybe be reckless if they knew Nathan Phillips was a liar, or there were contradictions or changes in his story. The latter would have required more caution. Although in that case it could have been run as a “claim” or as a possibility, and that would not have been reckless.
Sammy Finkelman (fe8737) — 10/29/2019 @ 7:06 amThe Washington Post may have thought that what the printed was not defamatory against any individuals, so they didn’t need to pay attention to the truth. Did they use any names?
Sammy Finkelman (fe8737) — 10/29/2019 @ 7:09 am18. I always understood “actual malice” to mean an intent to harm someone. That is not strictly necessary for a statement to be defamatory if a reasonable person would know that statement to be untrue; the definition of “reckless disregard.” Actual malice is a high bar to clear legally in America, which is why celebrities tend to shop their defamation claims to UK courts.
Gryph (08c844) — 10/29/2019 @ 7:10 amIt’s all easier to understand if you take every Supreme Court defamation precedent from the viewpoint of: “Oyez, oyez, oyez, Court is now in session. The issue before the Court, today, is how can we keep our good liberal friends in the media, who only publish the truth by accident, from going bankrupt from defamation lawsuits.”
nk (dbc370) — 10/29/2019 @ 7:11 am20. It’s not up to a media organization to determine what is defamatory. It’s always better to err on the side of caution. Whether they used names is, again, not material to the idea of reckless disregard for the truth as long as there was the most remote chance that anyone might have recognized Nick Sandmann’s face in the pictures and footage they ran with.
Gryph (08c844) — 10/29/2019 @ 7:12 am…or to prevent the onslaught of sounded pop-up advertising (made necessary from having to pay out on those judgements) from reaching their precious ears.
urbanleftbehind (5eecdb) — 10/29/2019 @ 7:15 amHow is it bizarre? Defamation is an established tort. It’s not esoteric legal theory. I’m not sure his attorneys can establish the elements but an individual suing a newspaper over false statements that caused harm is a fairly standard hypothetical. Newspapers are expected to do some due diligence in their reporting and something like a standard of care exists.
Calling the fire department after setting someone’s house on fire isn’t a defense. Calling 911 after you hurt someone isn’t either. Printing a retraction after it’s obvious you got it wrong doesn’t mean it wasn’t defamation. If it was defamation the negligent party doesn’t get to chose the remedy, i.e. the Post doesn’t get to decide a retraction is good enough.
The situation depends on who made the statement, who it’s about, and the situation. The rules are different for politicians and other public officials and there are different standards for an individual making a statement as opposed to an organization like the Post.
frosty (f27e97) — 10/29/2019 @ 7:21 amIt’ll be interesting to see how this plays out. A lot of the people rooting for the destruction of the media seem to be following a ‘big picture’ point of view. It will be interesting to see if the actual words that Wapo published support that big picture or not. It will also be interesting to see how quickly they knew they needed to correct and how long that took them. I hope the documentary evidence gives us a view into the decision making. Delaying for a day or two in order to make sure they get it correctly retracted is different than delaying until public pressure built up.
Time123 (6e0727) — 10/29/2019 @ 7:23 amThe judge’s ruling is here.
The main why for allowing the case to go forward is this:
An additional cause seems to be this:
So, in addition to what Dana suggests above, the Court is allowing discovery on what WaPo knew or should have known about Phillips.
Appalled (1a17de) — 10/29/2019 @ 7:23 amOyez, BTW, is a word. It’s the plural of “hear” in the imperative, “Hear all!”, from the Latin “audite”, as corrupted on its way to England by way of France.
nk (dbc370) — 10/29/2019 @ 7:24 am@25, my understanding is that if you honestly publish the facts that you have at the time, and correct that publication when new facts are available it is a defense unless they can show you were reckless.
Time123 (6e0727) — 10/29/2019 @ 7:26 am“Now do David Hogg or Greta Thunberg”
You mean should the NRA sue Hogg and CNN and anyone who took part in that scripted town hall smear-fest? Can’t, for one reason he failed to show up when CNN sent a car to pick him up. Maybe sue Jake Tapper.
As to the kid w mental illness being pushed as the authority on climate, who ya gonna sue?
harkin (337580) — 10/29/2019 @ 7:27 am23. Gryph (08c844) — 10/29/2019 @ 7:12 am
It wasn’t that that created trouble for Nick Sandman.
It was that they identified the high school, and people in Kentucky wanted to punish the students, which would not have happened before the last few years. So everything became known. Probably some other students, to deflect attention away from themsleves, gave away the name of the students who were in Washington and a little bit more investigation got the name of the student in the picture.
But whatever followed was all based on the truth of the Washington Post story. Although the washington Post wasn’t the on;y publication or media otlet that ran with one version or another of Nathan Phillips’ story.
It was not reckless disregard for the truth for the media to rely on the Washington Post and other outlets so they are not suing any place that didn’t do original reporting I think. They may not be suing Nathan Phillips either (or are they?) That would be for PR reasons or because he doesn’t have any money but he might get pro bono lawyers who might have a network of lies and lying to defend..
Sammy Finkelman (fe8737) — 10/29/2019 @ 7:35 am29.
The Washington Post was in a bit of a bind.
To say the story was false was to defame Nathan Phillips and his friends and associates and he had a much bigger lobby behind him. That’s possibly why they were so slow on the retraction.
There was no way to say anything more without defaming somebody and certainly you needed to defame Nathan Phillips to make the retraction stick.
I suspect the retraction was rather carefully worded.
Now defamation is perfectly legal if it is the truth.
Sammy Finkelman (fe8737) — 10/29/2019 @ 7:36 am32. Telling the truth about Nathan Phillips is not defamatory. There was no way for them to act without someone’s reputation taking a hit, true, but truth is an absolute defense against charges of defamation. They would have been better off from a legal standpoint telling the truth, wherever that led.
Gryph (08c844) — 10/29/2019 @ 7:40 am29. If the facts turn out to be false and harm someone’s reputation in a manner that leads to actual quantifiable economic damage, you almost necessarily open yourself up to charges that you recklessly disregarded the truth. And corrections are rarely enough to reverse the damage that a provably defamatory statement causes.
Gryph (08c844) — 10/29/2019 @ 7:42 am@29 That sounds like good faith and reasonable belief that the statements were true. I don’t think the standard for that is reckless, especially as it relates to newspaper statements about a private individual.
The reckless and actual malice requirements relate to the Sullivan public figure doctrine situations correct?
frosty (f27e97) — 10/29/2019 @ 7:49 am@29. It varies from state to state. In some places you have to notify the publisher and demand a retraction if you want punitive damages or SLAPP sanctions.
nk (dbc370) — 10/29/2019 @ 7:49 am35. Again, the belief that a statement is true is not a defense against charges of reckless disregard. As with so many other issues at-law, a “reasonable person” standard is where the bar is set.
Gryph (08c844) — 10/29/2019 @ 7:53 am36. That also depends on whether the publishing agency is a national body. Newspapers with national readership such as the WaPo or national news outlets such as NBC certainly seem to meet that bar.
Gryph (08c844) — 10/29/2019 @ 7:54 amLooks to me like an embarrassingly weak defamation claim. I expect it will be dismissed on motions.
Leviticus (efada1) — 2/21/2019 @ 2:56 pm
Leviticus (4d38bd) — 7/27/2019 @ 10:36 am
Munroe (138863) — 10/30/2019 @ 6:34 pm