CINCINNATI (CN) — Media outlets that reported high schooler Nicholas Sandmann "blocked" the exit of Native American activist Nathan Phillips during a viral 2019 confrontation between Phillips and anti-abortion students can be held liable for the "invective and hatred" thrown Sandmann's way in the aftermath, the Kentucky native's attorney argued Wednesday.
Sandmann, a student at Covington Catholic High School at the time of the incident, filed several lawsuits against media outlets in the wake of the standoff with Phillips near the Washington Monument, but has reaped mixed results.
Sandmann's current legal battle at the Sixth Circuit concerns defamation claims levied against the New York Times, CBS News, ABC News, Rolling Stone and the Gannett Company.
These outlets, according to Sandmann, injured him when they published statements made by Phillips about the confrontation, including that the high school student "'blocked' his way and 'wouldn't allow him to retreat.'"
A federal judge ruled the statements were "nonactionable opinion" and granted the outlets' motion for summary judgment in July 2022, which prompted Sandmann's appeal.
In his brief to the Cincinnati-based Sixth Circuit, Sandmann argued the news outlets were well aware the publication of Phillips' statements would cause him harm.
"In the heated political climate of our times," the brief said, "the claim that a white teenager from a private Catholic school wearing a red MAGA hat was intentionally blocking the progress of a peaceful Native American protester carried unmistakable connotations of racism, intolerance, intimidation, and insensitivity.
"[O]ver the next day, Sandmann went from a quiet, anonymous teenager to national social pariah, one whose embarrassed smile in response to Phillips' aggression became a target for invective and hatred, his name and reputation forever tarnished."
The news outlets flatly rejected all of Sandmann's claims in their brief and argued the district court applied the appropriate standard of review and properly determined Phillips' statements were nonfactual.
The brief emphasized Sandmann's theory that Phillips had staged the incident with a group of co-conspirators was not supported by any evidence in the record, and pointed out that even if it was, the "blocking" statements would still be nonactionable opinion.
"Sandmann's own statements about the encounter reinforce the subjectivity of Phillips' statement," the publications said. "In Sandmann's first public statement after the incident, he responded to Phillips by saying, 'I never felt like I was blocking the Native American protester,' which underscores that the situation was a matter of perspective."
Attorney Todd McMurtry of the Fort Mitchell, Kentucky-based firm Hemmer DeFrank Wessels argued Wednesday on behalf of Sandmann, who was present in the courtroom, and told the panel the news outlets published Phillips' statements as fact and can be held liable for defamation.
U.S. Circuit Judge Richard Griffin, a George W. Bush appointee, spoke at length during McMurtry's arguments and seemed to agree that the "blocking" and "sliding" statements were presented as factual in nature.
He told the attorney he had watched videos of the incident numerous times and believed Sandmann never moved during his confrontation with Phillips, whom he saw as the instigator.
U.S. Circuit Judge Jane Stranch, an appointee of Barack Obama, questioned McMurtry about his methodology for distinguishing between fact and opinion.
"I have struggled with your formulation of what constitutes fact," she said. "You say it's the subject of the statement and not the form. Where do we find that in the law?"
"We're looking for things that are unquestionably factual in nature," McMurtry answered. "The articles served a narrative."
Attorney Nathan Siegel of the Washington, D.C., firm Davis Wright and Tremaine LLP argued on behalf of ABC News and the other news outlets, and was peppered with questions from Griffin.
"Sandmann never moves and hasn't done anything," Griffin said. "It seems like Phillips singled him out."
"In this case," the attorney responded, "the record shows Phillips was walking forward and Sandmann stood in his way."
Siegel emphasized testimony from both Sandmann and Phillips indicated they thought the other was blocking his path, which illustrates the problem in accepting Phillips' statements as fact.
"Why was this a national news story?" Griffin asked.
"Because it was clearly a matter of great public interest," the attorney answered.
"The facts were misrepresented," Griffin later told Siegel, "that's why it was such a big story."
Stranch once again focused her questions on the type of analysis required by the lower court, and asked the media outlets' attorney what type of test could distinguish fact from opinion.
"The standard is very clear under Kentucky law," Siegel said. "Context is key in assessing whether a statement is one of opinion. ... In the context of which they were published, these are classic subjective perceptions of what was happening."
In his rebuttal, McMurtry cited the 1990 U.S. Supreme Court ruling in Milkovich v. Lorain Journal Co. and told the panel "if words are sufficiently factual to be able to be considered true or false, they should go to the jury."
"The articles [in this case] cast Mr. Sandmann as the villain of this event," he concluded.
Griffin asked each attorney whether their clients would be willing to submit the case to mediation, especially in light of Sandmann's settlements with the Washington Post and CNN, but both McMurtry and Siegel declined.
U.S. Circuit Judge Stephanie Davis, an appointee of President Joe Biden, rounded out the panel.
No timetable has been set for the court's decision.Follow @@kkoeninger44
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