Blocked or Not Blocked – That Was the Question
Court Grants Summary Judgment to Media Defendants in Nicholas Sandmann Defamation Cases
On July 26, 2022, Judge William Bertelsman on the U.S. District Court for the Eastern District of Kentucky awarded summary judgment to several media defendants (The New York Times, CBS, ABC, Gannett, and Rolling Stone) in a series of long-running defamation cases brought by Nicholas Sandmann.
The lawsuits arise from a front-page incident from over three years ago at the Lincoln Memorial in Washington, D.C. On January 18, 2019, Sandmann, then a 16-year-old student at Covington Catholic High School in Covington, Kentucky, had travelled to D.C. along with his classmates to attend a pro-life rally, the March for Life. That same day, Omaha Tribe member Nathan Phillips had come to participate in another march in the capital, the Indigenous Peoples March. On that frigid winter D.C. afternoon, these groups independently converged at the Lincoln Memorial, where a third group of individuals – the Black Hebrew Israelites – were proselytizing and hurling invective at onlookers, including both the Covington students and the Indigenous Peoples March attendees.
The Covington students responded with raucous and aggressive chants directed at the Black Hebrew Israelites, which they later said were cheers used at their sports games. Eventually, as tensions between the Israelites and the Covington students grew, Phillips, followed by a few other Indigenous Peoples Movement attendees, walked up to the crowd of Covington students, while playing a drum. When he did, many Covington students began dancing and hooting. Many raised and lowered their arms in a “tomahawk chop” and performed the cheer accompanying the “chop” typically performed at games involving teams with Native American mascots. Some minutes later, as he was trying to exit the crowd, Phillips found himself face-to-face with Sandmann for about six minutes. The now-famous viral image quickly exploded on news and social media: Sandmann, sporting a red MAGA hat and displaying what many interpreted as a “smirk,” standing in front of Phillips playing his drum.
Legal Cases and Initial Motion Practice
A month after the incident, Sandmann brought his first defamation lawsuit against The Washington Post, soon followed by similar suits against CNN and NBC. The thrust of Sandmann’s allegations was that the news outlets’ reporting defamed Sandmann by falsely accusing him of racist conduct and verbal and physical intimidation of Phillips.
The defendants all moved to dismiss, and the Post’s motion (the first to be adjudicated) was initially granted by Judge Bertelsman on July 26, 2019. The Court found for the Post on several grounds, namely that some of the challenged statements were not “of and concerning” Sandmann; that many of the challenged statements lacked defamatory meaning; and that many of the statements, particularly quotations from Phillips regarding his subjective interpretation of the incident, were nonactionable opinion.
Subsequently, however, Sandmann moved for reconsideration of the ruling and for leave to amend his complaint. Sandmann’s amended complaint bolstered his allegations that Phillips was not making “truthful” statements about his subjective observations, but rather was telling an intentionally “false narrative” of the incident for political ends. The gravamen of Sandmann’s amended complaint was his theory that Phillips and an unidentified group of “activist companions” formulated and executed a scheme to instigate and capture on video a confrontation with a student in a MAGA hat that they could then cause to go “viral” on social media. After the encounter was over, Sandmann alleged that Phillips and his so-called “companions” “celebrated” accomplishing that objective before they left the Mall area.
The Court granted in part and denied in part Sandmann’s motion for reconsideration in the Post case. It adhered to its prior ruling except for a narrow category of statements – quotations from Phillips that Sandmann “blocked” Phillips and “would not allow him to retreat,” later termed “the Blocking Statements” by the parties. Sandmann’s case regarding the Blocking Statements was allowed to proceed because the Court found that “justice required” that discovery be had around them and their context. Guided by its reconsideration ruling in the Post case, the Court soon after also denied NBC and CNN’s motions to dismiss on identical grounds.
Sandmann then filed his second wave of lawsuits against The New York Times, CBS, ABC, Gannett, and Rolling Stone in March 2020, focused on their news reports that also quoted the same or similar Blocking Statements by Phillips. Those outlets all filed motions to dismiss, which were each denied in light of the Court’s reconsideration ruling in the Post case. Before the start of discovery, CNN and the Washington Post settled with Sandmann, followed later in 2021 by NBC. For much of 2021, the remaining media defendants engaged in bifurcated discovery, with the first phase focusing on the “facts pertaining to the encounter between [Sandmann] and Phillips,” with early summary judgment motions on whether the Blocking Statements were substantially true “or otherwise not actionable” on any of the grounds raised in the Court’s prior rulings.
1. Discovery of Sandmann
In his Complaints, Sandmann alleged that Phillips had caught him by surprise and Sandman had just stood in place to try to diffuse a confrontation and out of respect for Phillips. He said much the same thing in a press release and an NBC News interviews a few days after the incident.
But in discovery, the defendants obtained the first messages Sandmann had sent shortly after the event began exploding on social media. The first communications Sandmann sent, while still on the bus home to Kentucky, were direct messages on Twitter to Charlie Kirk and Kyle Kashuv, two prominent young conservatives at Turning Point USA. He messaged them that ““[m]embers of an indigenous peoples’ march approached me (I was wearing a maga hat.). The man played a drum in my face but unlike others at my school I didn’t step out of the way because he was trying to intimidate us.” And a few hours later, when a friend texted him “Can I ask you what made you stand in front of the Indian guy?”, Sandmann responded “The whole thing with the black people calling us names and the guy moving through the crowd trying to intimidate us. It just made me want to stand up for the school.”
At his deposition, Sandmann said much the same:
Mr. Siegel: And how did you think that standing in front of Mr. Phillips was standing up for the school?
Mr. Sandmann: Because we — the students of the school had stood there long enough and taken all kinds of insults from the Hebrew Israelites, then had had the Native American — or Mr. Phillips, the Native American, walk through us or whatever. And by the time he got in my face, when he could have kept — he could have even kept going through the students if he wanted to, I figured it was time for someone to plant their foot and stand there where I had been and just face up. And to me, that was standing up for the school, because I wasn’t going to move.
Sandmann also acknowledged that Phillips could have perceived that he was trying to block him, and that others with cultural backgrounds different than his own could have perceived Sandmann’s conduct unfavorably:
Mr. Siegel: Now, those — the other students — other students, right, parted for Phillips, correct, and you didn’t?
Mr. Sandmann: Uh-huh.
Mr. Siegel: Couldn’t Phillips have perceived that you intended to stop his path forward?
Mr. Sandmann: He could have. I think he would have figured out really quickly, if he tried to move anywhere else, that I wasn’t going to follow them.
Mr. Siegel: So you think you could have — you think he could have figured that out, and we will talk about that, but would you acknowledge that he could have perceived that it was your intention to stop his path forward?
Mr. Sandmann: Right.
* * *
Mr. Siegel: Even if a teenager thinks that an older person might be trying to intimidate them, you see that that person is walking forward and other people are parting for him, isn’t the respectful thing to do to move out of his way as well?
Mr. Sandmann: Not if he’s trying to intimidate me.
Mr. Siegel: [E]ven if you think the older person is trying to intimidate you, you don’t think the respectful thing to do is to just move out of the way?
Mr. Sandmann: I can’t see why I would. If — if they want to intimidate me, which I would assume then means they exhibit a dislike of me, I can’t find any compelling reason as to why I would equally return the respect to clear a place for them to move.
Mr. Siegel: Do you think people could disagree with you about that?
Mr. Sandmann: They could.
Mr. Siegel: Do you have any idea what in the Native American culture would be considered the respectful thing to do in that situation?
Mr. Sandmann: I would assume the respectful thing is probably to just move out of the way regardless.
Mr. Siegel: But you disagree with that?
Mr. Sandmann: Well, it’s not how I was raised.
Discovery also revealed that Sandmann had expressed his own perception that as the incident wore on, he felt that he was “blocked.” Notes from a therapist who interviewed him after his first lawsuits were filed recorded that: “Nick recalled that he could not move, as he was being blocked by the crowd.”
Discovery from Nathan Phillips and Other Eyewitnesses
At his deposition, Sandmann also identified from video of the incident four individuals that, along with Phillips, he alleged were the “activist agitators” who were supposedly “companions” of Phillips and participated in the alleged premeditated viral video scheme, including one man who he alleged to be Phillips’ “cameraman.” Sandmann acknowledged that he had no idea who any of those people were, and no evidence beyond his own inferences from the event to support his conspiracy theory. Defendants located all of those individuals and subsequently supported their summary judgment motions with detailed declarations from almost all of them, including Phillips, as well as several other witnesses on the scene. Those declarations were unrebutted and made clear that Sandmann’s conspiracy theory was baseless.
For example, one of the supposed “agitators” was actually a freelance journalist from South Carolina. The supposed “cameraman” lives in New Jersey and did not know Phillips (who resides in Michigan) and, like many others there, was recording the event for himself and never posted any video on social media.
More broadly, the undisputed accounts were that Phillips observed an increasingly tense and escalating situation developing between the roughly 200 white teenagers and the five Black Israelites. He saw the Israelites continuing to lobby insults, while the teenagers participated in a series of what appeared to him to be aggressive and threatening collective chants. Many of the other Native Americans and individuals standing nearby saw the scene the same way , almost all of whom did not know either each other or Phillips.
Hoping to calm the hostilities, one Native American suggested to Phillips that he begin drumming and singing to try to calm the situation. All of the Native American declarants explained that part of their religious tradition is that music and song have the power to calm tense situations, and several of them were musicians. So Phillips borrowed a drum and began drumming and singing, and then later moved toward the students in an effort to pacify the situation by standing in between them and the Israelites. Phillips did not ask any of the others standing around him to join him or to film anything. Rather, a handful of the other Indigenous Peoples Movement attendees – including the alleged “companions” – followed Phillips because of a similar belief in music and song’s power to calm, as well as Native American cultural traditions placing elders in high esteem. The journalist followed to cover whatever happened.
After the Covington students began shouting, making “tomahawk chops” and surrounding him, Phillips began to feel both mocked and unsafe and started trying to exit the crowd. Though all other students in his path moved out of his way (including students standing in front of, next to, and behind Sandmann), he soon found himself face-to-face with Sandmann, who did not move and stood slightly above Phillips on the steps of the Lincoln Memorial. Phillips therefore perceived that he was surrounded in the space and that Sandmann was blocking him. All the other declarants also perceived Sandmann to be deliberately blocking Phillips.
Sandmann had also pointed to certain statements from videos he claimed were Native Americans “celebrating” their supposed accomplishment of a viral video scheme, such as a statement from one of the Native American attendees after the standoff to others nearby that “I got him.” Sandmann took that to mean that the entourage “got” Sandmann with video they could release on social media. But declarations from three witnesses, confirmed by a close review of the relevant videos, instead revealed the opposite. The “him” the statement referred to was actually Phillips; three of the witnesses were discussing who would remain with Phillips to protect him after the incident and one of them was reassuring the others that he would stay with Phillips.
Many other statements Sandmann pointed to from videos were similarly taken out of context and explained in the witnesses’ declarations. Several revealed a lack of understanding of Native American culture. For example, one man (the alleged “cameraman”) called Phillips “grandpa”, and after the incident was over Phillips addressed the crowd by saying “Relatives, Relatives.” Sandmann took that to mean that the Native Americans knew each other well or were even related. The declarations explained that was not so; rather, it is common in Native American culture to use terms like “grandpa” or “uncle” to address any older person as a sign of respect, and that “relatives” is a common way to try to get the attention of any group of people.
In short, as these unrebutted accounts made clear, Phillips and his supposed “entourage” did not hatch any kind of plot to capture a viral moment; instead, the incident was entirely impromptu.
Sandmann’s Linguistics Expert
About a week after Sandmann’s deposition, his counsel retained a linguistics professor as an expert witness, who ultimately produced a report opining that, based on the dictionary definition of “blocking”, Sandmann did not “block” Phillips. Her report emphasized that she intentionally ignored Sandmann’s deposition testimony about the incident, as well as any statements from Phillips, because they might not be objective. Instead, she based her conclusions solely on watching the various videos of the incident the parties had accumulated. At her deposition, she stated it would be accurate to describe the Blocking Statements as Phillips’ opinion about what happened.
Summary Judgment Motions
On December 20, 2021, the media defendants filed a joint motion for summary judgment as well as supplemental memoranda related to each defendant’s individual articles and broadcasts.
The media defendants jointly moved on two grounds.
First, they contended that the Blocking Statements were protected opinion because they reflected Phillips’ subjective perspective and were supported by disclosed, accurate facts. They also pointed out that Sandmann also conceded at his deposition that Phillips “could have perceived that it was [Sandmann’s] intention to stop his path forward”; that the factual allegations about Phillips’ motives that had led the Court to reconsider its initial ruling on the issue had proved to be baseless; and that in the context of the same incident Sandmann had likewise perceived himself to be “blocked.”
Second, the media defendants argued that the undisputed facts, including Sandmann’s own deposition testimony and the many contemporaneous videos from that day, showed that the “gist” or “sting” of the Blocking Statements – that Sandmann deliberately stood in Phillips’ way to obstruct his path – was substantially true. As Sandmann had testified, he observed that Phillips was moving forward, that other Covington students were moving out of Phillips’ way, and that Phillips was walking through that path. But Sandmann believed that Phillips was trying to intimidate the Covington students. And so he decided that unlike the other students, it was “time for someone to plant their foot” and “face up” to Phillips to “stand up for the school.”
The media defendants additionally argued in supplemental briefing that the individual contexts of their publications reinforced that the Blocking Statements were protected opinion. They also argued that in the context of each of their articles the Blocking Statements were not capable of a defamatory meaning because they merely presented as one side of a complicated incident.
Sandmann also moved for partial summary judgment on the element of falsity, on the basis that the Blocking Statements were indisputably false. Sandmann’s motion extensively relied on the report and deposition testimony of his linguistics expert, as well as his brief’s characterization of videos. The media defendants moved to strike Sandmann’s expert on several grounds, including that watching videos to opine on the truth or falsity of the Blocking Statements was not a proper subject of expert testimony, nor did the professor have any experience of specialized training in to do that even if it was. The defendants also noted that if the Court were nonetheless to consider her views, they would still support summary judgment for defendants because she too characterized the Blocking Statements as Phillips’ opinion.
The District Court’s Ruling
On July 26, 2022, the Court sided in a 21-page ruling with the media defendants and ruled that the Blocking Statements were protected opinion. As the Court put it, the ruling was reached “with fealty to the law as its primary concern, with no consideration of the rancorous political debate associated with these cases.”
First, the Court rejected Sandmann’s arguments that it had already decided the opinion issue in its prior rulings, and that the “law of the case” doctrine precluded consideration of it now. Instead, the Court’s prior rulings clearly stated that the actionability of the Blocking Statements would be “revisited” at summary judgment. Moreover, governing Sixth Circuit law made clear that the doctrine does not apply when a different legal standard is implicated in earlier proceedings, such as at the motion-to-dismiss and summary judgment stages. The Court also noted that Sandmann’s reliance on the law of the case doctrine was “ironic” considering his own successful reconsideration motion.
Next, the Court addressed the merits. Because a reasonable reader would understand that Phillips was “simply conveying his view” of the encounter, and especially because the encounter took place in the “expansive” setting of the Lincoln Memorial where “it would be difficult to know what might constitute ‘blocking,’” Judge Bertelsman concluded that the Blocking Statements were “objectively unverifiable.” Within such a geographic setting, the Blocking Statements “simply [could not] be proven to be either true or false.” This holding rejected Sandmann’s argument that “blocking” was a factual statement because it involved the interaction between two people in a “confined space.” The Court also found that the Blocking Statements did not imply the existence of any undisclosed defamatory facts.
Moreover, the Court found that the Blocking Statements were quintessential statements reflecting one’s opinions of someone else’s state of mind, especially when considered in their context of the media’s reporting on an intensely publicized controversy. Phillips had “no way of knowing” Sandmann’s thoughts or intentions, and the media defendants’ reporting of the Blocking Statements as “Phillips’s first-person view of what he experienced” would have “put the reader on notice that Phillips was simply giving his perspective on the incident.”
Finally, the Court did not address either the issue of substantial truth or the defendants’ individual arguments on defamatory meaning. And the Court denied as moot Sandmann’s motion for partial summary judgment on falsity, as well as the media defendants’ motion to strike Sandmann’s expert.
On August 19, 2022, Sandmann appealed the decision to the U.S. Court of Appeals for the Sixth Circuit.
Nathan Siegel and Meenakshi Krishnan of Davis Wright Tremaine LLP represent Defendants ABC News, Inc., ABC News Interactive, Inc., and The Walt Disney Company, along with Robert Craig of Taft Stettinius & Hollister LLP.
John Greiner, Darren Ford, and J. Stephen Smith of Graydon Head & Ritchey LLP represent Defendant The New York Times.
Natalie Spears and Gregory Naron of Dentons US LLP, and Jessica Meek and Jared Cox of Dentons Bingham Greenebaum LLP, represent Defendants CBS News Inc., ViacomCBS Inc., and CBS Interactive Inc.
Michael Grygiel, Cyndy Neidl, Kelly McNamee of Greenberg Traurig, LLP, and Michael Abate and Jon Fleischaker of Kaplan Johnson Abate & Bird LLP, represent Defendants Gannett Co., Inc. and Gannett Satellite Information Network, LLC.
Kevin Shook, Ryan Goellner, Theresa Canaday, Samuel Wardle, and Michael Nitardy of Frost Brown Todd LLC represent Defendants Rolling Stone, LLC and Penske Media Corporation.
Todd McMurtry, Jeffrey Standen, and J. Will Huber of Hemmer DeFrank Wessels PLLC represent Plaintiff Nicholas Sandmann.