CINCINNATI (CN) — A divided Sixth Circuit panel on Wednesday ruled in favor of media outlets being sued for defamation regarding their coverage of a teen’s encounter with a Native American activist.
The viral incident took place during on Jan. 18, 2019 in Washington D.C. during an anti-abortion event known as the “March for Life.”
During the event, then-student Nicholas Sandmann and his classmates from Covington Catholic High School in Kentucky encountered Native American activist Nathan Phillips and videos captured a standoff between the two.
Many of the videos and pictures of the incident depict Phillips playing his drum and singing while face to face with a smiling Sandmann with other students nearby.
According to court documents, the incident ended after a chaperone arrived and told the students to leave, with Phillips leaving after completing his song.
The media’s coverage of this incident sparked legal action from Sandmann who claimed that he suffered injuries from the publishing of statements made by Phillips that he and his fellow students “blocked” him and prevented him from retreating.
Sandmann’s claims have resulted in mixed outcomes. While he did settle his $800 million lawsuit against CNN for an undisclosed amount, his claims against the Washington Post were dismissed by a federal judge in July 2019.
The current matter before the Sixth Circuit involved Sandmann’s defamation claims against the New York Times, CBS News, ABC News, Rolling Stone and the Gannett Company, which owns the Cincinnati Enquirer, Detroit Free Press, Louisville Courier Journal, the Tennessean, and USA TODAY.
The claims reached the appellate court after Sandmann challenged the U.S. Disctrict Court Judge William O. Bertelsman's ruling in favor of the media companies and sought to revive his defamation claims.
In a brief submitted to the Sixth Circuit, Sandmann’s attorney Todd McMurtry wrote that the lower court’s ruling should be reversed because Bertelsman applied an incorrect standard.
However, in a 2-1 ruling issued Wednesday, the Sixth Circuit panel upheld Bertelsman's ruling in favor of the media outlets.
U.S. Circuit Judge Jane Stranch, a Barack Obama appointee, authored the majority’s opinion finding that Phillips’s statements were reported as opinions and not as facts.
Specifically, the majority’s opinion points to a lack of “core of objective evidence” that would allow concrete discernment of Sandmann’s intentions during the standoff.
“The online articles at issue embedded or linked to some version of the video, effectively disclosing the facts upon which Phillips’s opinion was based; readers were able to determine for themselves whether they interpreted the encounter as Sandmann deciding to block Phillips, positioning himself to stop him, or not allowing him to retreat,” Stranch wrote. “And Gannett’s print articles also presented Phillips’s statements in a way that clearly framed his statements as his own perspective of the incident.”
In his dissent, U.S. Circuit Judge Richard Griffin took issue with this framing of the statements, finding that they were clearly presented as facts by the media outlets.
“In sum, facts matter. The video evidence shows that Phillips initiated an encounter with a 16-year-old boy. In response to this action from a stranger, Nicholas Sandmann did nothing more than stand still and smile,” wrote Griffin. “Moreover, the statements were not qualified to the effect that they were Phillips’s perceptions of Sandmann’s intent. On the contrary, the text of the statements reported by defendants were that Sandmann had so acted.”
Griffin, who was appointed to the court by George W. Bush, also wrote that the media outlets should not be shielded from the liability of their reporting, simply because the statements were made by Phillips, a third-party.
Taking issue with the dissent, the majority opinion specifically responded to the claim that they engaged in speculation on the nature of the statements made by Phillips.
“Phillips’s statements are opinion, not fact. In making this finding, we are not engaging in speculation or reading improper inferences into Phillips’s statements, as the dissent suggests. Rather, we are engaging in the task required of us: a legal interpretation of Phillips’s statements in their context within the news organizations’ articles,” wrote Stranch.
U.S. Circuit Judge Stephanie Davis, a Biden appointee, joined Stranch in affirming the lower court’s decision.
Subscribe to Closing Arguments
Sign up for new weekly newsletter Closing Arguments to get the latest about ongoing trials, major litigation and hot cases and rulings in courthouses around the U.S. and the world.
