July 26, 2019

"A federal judge in Kentucky Friday threw out a defamation lawsuit filed against The Washington Post by Covington Catholic High School student Nicholas Sandmann..."

"... and his family over the paper's reporting of an incident between the young man and a Native American man this past January in Washington. The lawsuit, which was filed in February, sought $250 million in damages and accused the Post of practicing 'a modern-day form of McCarthyism' by targeting Sandmann and 'using its vast financial resources to enter the bully pulpit by publishing a series of false and defamatory print and online articles ... to smear a young boy who was in its view an acceptable casualty in their war against the president.'... In a 36-page ruling, U.S. District Judge William Bertelsman noted that the Post never mentioned Sandmann by name in its initial coverage of the incident, referring only to groups of 'hat wearing teens.' Bertelsman added that 'the words used contain no reflection upon any particular individual' and thus could not be constituted as defamation. The judge also ruled that the newspaper used language that was 'loose, figurative,' and 'rhetorical hyperbole which is protected by the First Amendment....  Judge Bertelsman said in the ruling that he accepted Sandmann's contention that 'when he was standing motionless in the confrontation with Phillips, his intent was to calm the situation...' But he noted that Phillips asserted that he was being blocked from passing, and Phillips' opinion was reported by the newspaper. 'They may have been erroneous ... but they are opinion protected by The First Amendment,' Bertelsman wrote."

Fox News reports.

We're told there will be an appeal, but I think there is good reason to believe the district judge got it right.

143 comments:

Mr. D said...

He wasn’t going to win because of Sullivan, but there’s no question he was wronged by a lot of people, including the Diocese of Covington.

readering said...

Link to decision:

https://www.courtlistener.com/recap/gov.uscourts.kyed.88372/gov.uscourts.kyed.88372.47.0.pdf

readering said...

Sullivan does not apply because he's not a public figure.

readering said...

He just wasn't defamed by the newspaper.

Qwinn said...

"Opinion", huh? Is there any kind of slander that couldn't simply be dismissed as "opinion"?

Of course, such deference will only be applied to liberals. Ask Ace of Spades. He got sued for his actual opinions, and the judges never once thought to dismiss it on that basis.

http://acecomments.mu.nu/?post=382535

Mr. D said...

He is now.

Rick said...

Why not whip up a media storm against the bunch of kids with a pack of lies?

Ann Althouse said...

"He wasn’t going to win because of Sullivan..."

He's not a public figure. NYT v. Sullivan isn't the problem here.

Ann Althouse said...

"He is now." That would be an aspect of his damage, if he's plucked out of obscurity and defamed. The question is what extra leeway did the publisher have at the time it made the statement.

Big Mike said...

but I think there is good reason to believe the district judge got it right.

Not on your LIFE!

readering said...

Why read bs blog post (ace, not this) when you can read the decision?

JML said...

I'm not an attorney, but yes, I think they got it right. BUT, the kid was wronged and I believe it was deliberate. Legally, I get it. But they f'ed him hard. I wish there was a way to prove this in a legal manner and deliver some kind of justice for him.

n.n said...

The media accomplished its goal to color the human rights movement through a liberal and progressive allusion to diversitist thought and intent, which will be renewed, recycled, and propagate as political myths. They diffused a situation which was potentially damaging to the Pro-Choice establishment.

Yancey Ward said...

He has to go after the organizations that named him, published his photo, his address, his school etc. in their efforts to dox him. It will also help to have a judge who wasn't appointed by a Democrat- it shouldn't help, but we are far down the rabbit hole now.

Ann Althouse said...

I agree that it's a good idea to read the opinion, but I'm not going to read it at night.

readering said...

His lawyers have multiple lawsuits going against different publications. We'll see where the rest of the cases go. This exonerates the Washington Post.

rcocean said...

He's not a "Judge in Kentucky". He's a FEDERAL JUDGE. Why the fuck are newspapers so fucking ignorant!

Do you realize that 70% of American's don't even understand the difference between state and Federal judges? Or between district court judges and appeals courts? And why are these district judges - when they ignore the facts and the Constitution - writing 36,50, even 100 page decisions?

rcocean said...

The lawyers should have known how to judge shop.

Yancey Ward said...

Bertelsman might well be the last appointee of Jimmy Carter still on the bench. Will have to check.

readering said...

They did judge shop. They filed in the Eastern District of Kentucky where 8 judges are Republican appointees and one a Democratic appointee. But cases assigned at random. Senior judges like the Democrat are assigned fewer cases. But WP got lucky, if you think these things are decided by the affiliation of the judge.

Unknown said...

Yea, the washington post should doxx them next. They didn't get it right, the post was reckless and potentially dangerous to these people.

Matt Sablan said...

... If they really want to try and be cute in their Article One that the publication wasn't referencing Sandmann, that's deliberately pretending not to know what was being talked about.

Yancey Ward said...

Random, huh. Bezos knows what he is doing.

readering said...

There are still dozens of Carter appointees on the bench. A lot of judges.

Matt Sablan said...

Wow. That reading of what counts as opinion (for example, taunting behavior is an opinion), "Swarming" someone is an opinion. Etc. is a really far reach. Especially considering in the facts the court stated above, they clearly state Phillips approached Sandmann, and Sandmann did not try to stop him from passing him, Phillips never tried to go beyond him.

How do you say it is an opinion to claim Sandmann and his classmates "swarmed" Phillips, when the statement of facts states clearly, Phillips approached Sandmann?

readering said...

In most of the cited passages the references were to the group of boys not to Sandmann specifically.

Bezos didn't pick the court!

Matt Sablan said...

"Aggressive" is not subjective. If you told me a sleeping kitten was acting aggressively, and a lion that was mauling a zookeeper was not acting aggressively, I wouldn't say, "Well man, that's like, YOUR OPINION."

grimson said...

If a paper accurately publishes defamatory comments made an individual without even trying to ascertain their truthfulness or offering the aggrieved party a chance to respond, is there no legal recourse?

Matt Sablan said...

HALT. Stop. The decision cites Phillips stating that he felt threatened and was swarmed and that "that guy in the hat" stood in his way. But, in the statement of facts the court relayed above, they clearly state that *is not what happened.* Phillips lied. He told an objective untruth.

Michael K said...

Carter appointed judge

Matt Sablan said...

Grimson: If a paper accurately say, calls Bob Nobody a kiddie porn enthusiast, and it turns out, hey, he DOES have a stash of kiddie porn, even if the paper just guessed -- truth is the ultimate defense against slander/libel. Now, the paper would get LUCKY in that case, but if I wrote to the paper and said "Jim Somebody rapes children," and the paper reported it as a fact (even though it was untrue) (as they reported Phillips statements) and not as "Matt Sablan claims, without proof," then because the claim is so egregiously offensive, it might count as offensive. Now, if they could PROVE that it was untrue if they did due diligence, as we expect of a news paper, then they'd be in hot water.

Until this decision.

Yancey Ward said...

"Bezos didn't pick the court!"

I didn't say he picked the court, I implied he picked the judge.

Matt Sablan said...

"If the statements could be construed to refer to Sandmann," -- What game is the court playing? Everyone knows who the guy in the hat Phillips is referencing is. This is deliberate buffoonery on the court's part to pretend that the statements could have possibly been construed to be anyone BUT Sandmann.

narciso said...

They turned Zimmerman into a public person through ABC NBC and the Times misrepresentation of key data, then they told to go (redact) himself.

Gk1 said...

This is why I think an Oklahoma City style bombing of the Washpo or NYT is a near certainty in the future. Continual poking of the bear because the liberals feel impervious. They revel in sticking it to fly over country at every opportunity. And here is the thing, there will be far too many people dancing a jig when it happens. That is how out of control things are getting.

Michael K said...

WP got lucky, if you think these things are decided by the affiliation of the judge.

Don't you when the Supremes overturned another Obama judge with delusions of grandeur?

Yancey Ward said...

I mean, he hit that one-outer. He should probably buy a lottery ticket.

Matt Sablan said...

If as the court claims it can't be objectively claimed whether Phillips was blocked or swarmed... why in their statement of facts do they claim that Phillips never approached Sandmann and could not have been blocked and that the Native American group approached the students, not the other way around, or that it was unknown who approached who?

You CAN objectively tell if there was any swarming or blocking, if you wanted to find facts. Like a court should want to do. And as they did. In their statement of facts, only to then ignore it to find this awful decision (as of 17 pages in.)

Michael K said...

They did judge shop. They filed in the Eastern District of Kentucky

Nothing to do with where they live of course.

Sheesh

readering said...

I'm sure they'll appeal and in a couple of years we'll see what three of the mostly Republican appointed judges meeting in Cincinnati think.

Matt Sablan said...

"And one individual obviously cannot swarm another."

Whoa there court, you just said you couldn't objectively determine that LAST PARAGRAPH.

Birkel said...

It was an opinion about a fact that was easily checked and proven to be false.
It is falsifiability that proves the statements by WaPo cannot be opinion.

Matt Sablan said...

Phillips claims that Sandmann "blocked him" and he "Couldn't retreat" is not a statement of opinion. It is a statement of provable fact. The court even notes that Phillips was able to walk away, and that Phillips was not stopped from movement in any direction.

Phillips lied, the WaPo published his lies without checking the basic facts, and the court is basically saying, "Whatever, yo." They're not even bothering to pretend to be logically consistent in their opinion.

Ralph L said...

I'm hoping for a chilling effect from the bad publicity. It would also be nice to get some of the nasty reactions back in the public eye, though the family may not want that.

Yancey Ward said...

Readering, just about any decision with a highly visible, political element to it is highly correlated to the party affiliation of the selecting President. I mean, the land of educated guesses, this is one of the most solid well validated rules there are.

Having wrote that, I also think the judge got this right in this particular case, but I don't fool myself- if the left had been lauding Sandmann's cause, and the sued party were, let's say, National Review, FoxNews, or The Wall Street Journal, the case would have likely gone to trial unless the judge just happened to be a Republican appointee.

Matt Sablan said...

Birkel: They're not saying the WaPo's statements were opinions. They're saying since Phillips statements were opinions that did not specifically target Sandmann, the WaPo's re-printing of them can't be considered slander/libel/whatever, since Phillips opinions are protected and can't be considered harmful. But, to do that, they have to be logically inconsistent, which in my 19 pages of the report so far, I've pointed out how often they claim that Phillips' opinion about being blocked/swarmed was just that, but also that their statements of facts state neither thing occurred.

Birkel said...

readering offers exonerate to be especially off putting.
That's not what courts do.

Matt Sablan said...

The judge may have gotten it right, but their reasoning is tortured and broken.

Birkel said...
This comment has been removed by the author.
narciso said...

As lin wood spelled out, they had seven different instances in which they could have corrected.

Matt Sablan said...

[See Page 18, the paragraph that starts "In paragraph 10," that basically sets up, the argument: The WaPo had a statement from an unreliable witness and it turned out to be an opinion that no one can prove one way or the other, so, no harm can be done.]

Matt Sablan said...

Also: There WERE undisclosed facts. Entire minutes of video and other witness statements that were not received or published until AFTER the WaPo's poor journalism was put on display. So, the comparison to the other "blocked" statement isn't really a valid one in my mind.

Matt Sablan said...

Even on page 20, the court is still pretending that there's no way to tell whether the statements are "about" Sandmann.

readering said...

Yancey Ward, I have been practicing federal law for nearly 40 years and there are good, weak and terrible judges sitting in the district courts. But for civil cases (I don't do criminal, and criminal is different--too many former prosecutors) my experience is that the appointing president does not matter too much. District judges don't make the law, they follow opinions set down by the Supreme Court and their Circuit court of appeals. I think this focus on Trump being okay because he's filling the courts with good judges is way overblown. As a liberal I'm really not too bothered by the judges Trump has appointed to the lower courts.

narciso said...

And Dorsey conveniently deplatformed the person who discovered private maytag was a fraud.

Matt Sablan said...

The court says that the articles do not claim Sandmann (even if you assume that Phillips and the WaPo are talking about Sandmann, which they're totes not), they do not claim he physically assaulted or blocked Phillips, that he said anything racist, or that he taunted them.

Look back at page 16 with the list of words that the court says were used, including "taunting," "swarmed," "aggressive." I'd say that even if you pretend that the WaPo and Phillips didn't mean to imply that Sandmann physically blocked or acted in a racially biased way, they clearly claim there was taunting.

Birkel said...

Matt Sablan:
And what I said is that falsifiability is what alerts us to statements of fact versus statements of opinion.

Matt Sablan said...

"The article cannot reasonably be read as charging Sandmann with physically intimidating Phillips..." But they quote Phillips being quoted as feeling "threatened." Yeah, how totally unreasonable a reading of an article that Sandmann intimidated a guy who claimed to be threatened by him.

Tank said...

I remember reading the Complaint when it was filed and opining here that I thought the claim was very weak for defamation and wondering why they did not include a false light claim which I think might have been actionable.

I recall that in reviewing the Complaint there seemed to be few if any false statements of facts, which is what defamation is all about. Accurately reporting what someone says, even if what they are saying is false, is not a false statement of fact; it's an accurate report of what was said.

We'll see where this goes, but I don't think it's going anywhere.

Matt Sablan said...

Phillips statement about himself is NOT a third party's subjective feelings. He IS the party. He is the guy this is about. This isn't me saying: "He looked kinda scared." He's there saying, "I was scared because THAT GUY intimidated me." The court claims this statement would not expose Sandmann to public hatred, yet, above, they acknowledge: "And while unfortunate, it is irrelevant that Sandmann was scorned on social media."

So, yes. It actually DID expose Sandmann to public hatred, and the court ACKNOWLEDGED IT TWO OR THREE PARAGRAPHS AGO.

Birkel said...

Tank,
I remember that and remember agreeing with you.

narciso said...

There were plenty of false claims as Mary McCarthy would say, including the & and, about Lillian hellman

Char Char Binks, Esq. said...

"Post never mentioned Sandmann by name in its initial coverage"

But they showed his face in video online while. He was featured front and center during their hit piece. This was clearly defamation.

How did Sandmann block Phillips? By standing still before and while Phillips walked right up to him? Did Phillips ASK Sandmann to move, in English or the made-up language he was "singing"? If Phillips wanted to go past, and get to the Lincoln Memorial, why didn't he take the clear path he had to do so, or do it after the students left to get on the bus?

Phillips statements that he was "swarmed", "blocked" and "couldn't retreat"were not OPINIONS. They were LIES, lies that were proven by the parts of the video that WaPo had but failed to show.

Matt Sablan said...

"Phillips said a few people in the March for Life crowd began to chant, “Build that wall, build that wall,” though such chants are not audible on video."

"A Native American man steadily beats his drum at the tail end of Friday’s Indigenous Peoples March while singing a song of unity urging participants to “be strong” against the ravages of colonialism that include police brutality, poor access to health care and the ill effects of climate change on reservations."

In a statement, the Indigenous Peoples Movement, which organized Friday’s march, called the incident “emblematic of our discourse in Trump’s America.”

“It clearly demonstrates the validity of our concerns about the marginalization and disrespect of Indigenous peoples, and it shows that traditional knowledge is being ignored by those who should listen most closely,” Darren Thompson, an organizer for the group, said in the statement.

“To see a group of students from a Catholic school who are practicing such intolerance is a sad sight for me,” said Haaland, who is Catholic.

--> Other quotes from the WaPo piece. Yeah. There's no way a reasonable person might read that there were allegations of racism in that article. Totally pants on head CRAZY to come to that conclusion.

Matt Sablan said...

The court's very selective quoting from here is required to not get the "gist" or would require mental gymnastics through an "unreasonable construction" to reach Sandmann's claims.

Matt Sablan said...

"The gist or sting of the article would not "tend to expose" Sandmann to public hatred, ridicule, contempt or disgrace-" yet, remember, above, the court ACKNOWLEDGES THAT VERY THING HAPPENED.

Matt Sablan said...

I like how they quote Statement 26 where Phillips claims students made a racist statement about Native Americans being drunks and thieves, but insists that there's no way someone reading these articles might think the people being talked about are racists.

Matt Sablan said...

Now, the court might have reached the right conclusion (I don't think a newspaper knowingly or negligently publishing obvious false statements that defame someone should get off because, hey, that's their opinion man, but, whatever), but -- their reasoning is shoddy and weak. This should get appealed and make the court turn in a better opinion that doesn't contradict itself.

Char Char Binks, Esq. said...

"an Oklahoma City style bombing of the Washpo or NYT is a near certainty in the future."

That's your constitutionally protected opinion, I'm sure Bertelsman would agree. It's too bad nobody killed Jimmy Carte before he appointed that shitstain.

Browndog said...

You have this blog post, and you have this one, from AOSHQ:


Judge Dismisses Nick Sandmann Lawsuit After First Round of Motions, Saying Just That It Was An "Opinion" That Sandmann Was a Racist And so the Washington Post Cannot Be Liable for Publishing His Lies
—Ace of Spades

And the Washington Post, furthermore, wasn't even required to view a 20 minute video which would have proven that Chief Lieawatha was lying.

It's an "opinion" -- publish all the lies you want without any fact-checking required to maintain your immunity to lawsuit.


It goes on-

One of his better postings, by a blogger willing to write, and say what they need to say.

Matt Sablan said...

Or, wait. The court says no reasonable person could have reached the idea that Sandmann is racist from these articles. Are they saying... that the vast majority of liberals and democrats, Sandmann's school and church, the groups Phillips was a part of, and various other left-wing pressure groups *aren't reasonable people?*

Maybe this decision is the greatest snide put down ever entered into a court record.

Matt Sablan said...

"He just wasn't defamed by the newspaper."

-- That's just the court's opinion, maaaan.

Matt Sablan said...

"Opinion", huh? Is there any kind of slander that couldn't simply be dismissed as "opinion"?

-- Before this, I was going to say yes. After this? Eh... I don't know. I think if I just say, "Hey, it is just my OPINION Bill Thatguy likes to murder puppies," that technically meets the new Phillips test. Or even if I say, "Bill Thatguy murders puppies," and then later say, "Hey, that's just how I felt at the time," then yeah. No foul.

J Melcher said...

Do the asymmetries and imbalances of power and influence play no role here?

Nathan Phillips is an adult. He is a more or less professional protester. He has lots of media experience -- and a "record" in the easily available media. He is a limited public figure. He clearly has a "side" in any specific dispute and a "narrative" to tell.

Nick Sandmann is a (legal, incompetent) child. He is not a public figure. His hat puts him on a "side" of a non-specific dispute but he has given no evidence that he has a particular story to tell -- or that the WashPost made any evidence to hear his side if he had one.

So we believe the adult and we utterly dismiss -- don't even try, don't even care about -- the kid? Is that the newspaper rule, now? Can we apply that to accused pedophile priests and accused abusive parents and accused exploitive employers now?

Matt Sablan said...

"Why read bs blog post (ace, not this) when you can read the decision?"

-- I read all three, and I'm firmly in the opinion that if there IS a legal reason for dismissing the case, it was not made in that decision.

MD Greene said...

readering said: Sullivan does not apply because he's not a public figure.

Hah. Putting the kid's picture on wire services and running selectively edited videos that served the narrative of a false accuser set out to make him look bad effectively made Sandmann a public figure -- a nationally reviled public figure. Plenty of evidence for that.

Contrast this with the treatment of David Hogg, whose publicity lofted him well above his strike zone into Harvard College. Camera Hogg isn't complaining because, well, it worked great for him.

Mr. Sandmann now should sue for libel -- malicious defamation without concern for truth. He might well prevail.

Matt Sablan said...

"Do the asymmetries and imbalances of power and influence play no role here?"

-- Technically, even in a court of law, no. They don't. Sorry; the world's not fair like that. If Phillips said completely true things that were reported, Sandmann would have no leg to stand on. Since he said objectively false things, and the WaPo drafted articles to create a narrative of "Phillips being targeted by racist MAGA teens," which is the gist of the article whether the court pretends to misunderstand it or not, Sandmann SHOULD have a leg to stand on. The court's deliberate ignorance of pretending that Phillips and the WaPo's articles could not possibly have harmed Sandmann, while also acknowledging it is unfortunate that Phillips and the WaPo's articles harmed Sandmann, is one step too cute for me, and I think this entire decision is crap.

readering said...

Being labeled a public figure makes it harder for you to win, Crazy Jane.

Matt Sablan said...

Whoa. You know that quote about rambunctious and physicality the court kept bringing up to as an opinion and impossible to prove? Here's the full quote:

“It was an aggressive display of physicality. They were rambunctious and trying to instigate a conflict,” Iron Eyes said. “We were wondering where their chaperones were. [I] was really trying to defuse the situation.”

Why did they not include the part about "trying to instigate a conflict" and "wondering where their chaperones are." That creates a very clear "gist" or "sting." I was expecting some lazy citations and the like, but I didn't expect DELIBERATELY mischaracterizing quotes in the court decision.

Char Char Binks, Esq. said...

Matt, I think you have to say, "Joe This Guy said Bob That guy murders puppies", or "John Other Guy says Judge Bertelsman rapes toddlers" to get away with it.

Matt Sablan said...

No; Phillips made claims about his own experiences and opinions that were reported. If I claimed I saw Judge so and so on the street kicking puppies, well, kicking and puppies are about as subjective as blocking and not allowing a retreat, I'd say.

Spiros Pappas said...

An opinion sounds like: "In my opinion, the Covington Catholic children are racist monsters." Or "I think these kids are Nazis."

Char Char Binks, Esq. said...

If I had confidence that Bertelsman isn't senile and incompetent like Robert Mueller, and wasn't appointed by one of the worst presidents we ever had, and doesn't rape toddlers, I would say so. This is Constitutionally protected speech about a public figure who may or may not rape toddlers.

Gahrie said...

Remember everyone..if the MSM can do this to Sandmann...they can do it to you too...and a federal court has just ruled that it's A-OK.

Matt Sablan said...

Actually, now that I think about it, Phillips HAS to be talking about Sandmann. There's no arguing or pretending that's not who "that guy in a hat" is. "That" is a definite word; it is used to define a specific person or thing. If I say "That cat bit me," you don't assume, "Oh, he means some cat in the universe of catdom bit him," you assume I mean "a specific cat bit me."

Even a plain reading of Phillips statement is clear that Sandmann is the target of his speech, and pretending otherwise is deliberately ignoring the plain meaning of the word "That."

Browndog said...

How are we supposed to know what the law is, if no two judges can agree what it means?

We are setting ourselves up for a civil war, but we don't care because we won't be fighting it.

Matt Sablan said...

If this get appealed, I think the lawyer will have fun with this: "Do you, Judge so-and-so, truly believe that every person who believed from the WaPo articles that Sandmann was a racist or had taken racist or threatening actions that day are incorrect -- and that the articles as written could not be reasonably interpreted that way?"

Then start going down the list. Do you believe Democrat Politician A is unreasonable? Do you believe that their interpretation and comments made on X day were wrong? Hit the kid's school and mayor too. Ask about the people who signed the Change.org petition. Ask about all the anonymous WaPo commentators who came to that conclusion. Force the judge to state that, yes. All those people are illiterates who couldn't get the plain reading of the article that Phillips was not talking about Sandmann, and even if he was, he was not implying Sandmann acted in any untoward way and that even if he HAD acted in some way that could be interpreted as threatening, it was in no way racist -- and that all those people are wrong and unreasonable people.

If that's the decision the court came to, get them on record and make them own it.

Matt Sablan said...

Then ask: "Do you agree with this decision that the article could not in any way harm Sandmann? Do you also agree that it is unfortunate these articles harmed Sandmann? Do you believe all the people who hold a negative opinion of Sandmann after reading this article simply misunderstood it or in some other way did not get the plain meaning of the article?"

Really, really hit on how utterly contradictory and weak this decision is. They may get a do-over with a better argument for throwing it out. But the current one should not stand.

Matt Sablan said...

Ask the court what other "guy in a hat" Phillips could have meant. Ask if everyone assuming he meant Sandmann was just a collective delusion or if that, actually, is a plain reading of the article.

Ken B said...

People are confusing “irresponsible and scummy” with actionable. The WaPo was, as it often is, more concerned with being fast than being right, being exciting rather than fair, and being anti Trump whatever the facts actually are. Their coverage was disgusting. We can fairly infer the people are louses. But they did not mention Sandman, and they were cagey, as usual, about “according to X”. So, sad, but probably correct.
Too bad, because as a juror I would have expressed my opinion with zeros.

Matt Sablan said...

Ken: Saying the WaPo reported a liar's claims and got snookered is a valid defense. Pretending "no one could have known who Phillips was talking about, and he didn't possibly infer any negative actions on the person or people he was talking about, and no one from reading those articles could have reached a negative opinion about the person -- who we have no idea who he meant" is too cute by half and doesn't pass the smell test for me.

Ken B said...

Gahrie
Yes, I think the court has said that, as long as they are cagey enough. That isn’t new. What is new is that supposedly reputable, flagship outlets are doing it. They might not pay a legal penalty, but they have trashed their reputation.
What btw has an auditor to sell, except his reputation? Nothing. Arthur Anderson trashed their reputation. What happened to them?

narciso said...

Weissman nuked them fron orbit, but the supreme court decided it was overkill

Ken B said...

Matt
It doesn’t pass the smell test for me either. Hence my condemnatory remarks. But my nose, or your nose, isn’t a good legal argument. I am interested in what Althouse has to say. But LegalInsurrection thought this would be dismissed for the same basic reasons I gave.

Browndog said...

Ken B said...

People are confusing...


Yea. No.

No one is confused. No one is confused how the law is applied to one moral ideology to another.

No one is confused if Covington was at a gay pride event wearing rainbow hats grinning at MAGA hat wearing drum beaters, and MAGA hat wearing media wanting to punch them in the face.

No.

Fuck you.

We all know what this is. Two sets of laws, based on political affiliation.

We know how this ends.

Why are you defending it?

Matt Sablan said...

Ken: But it WASN'T dismissed based on what you said. It was dismissed because the court believed no one could possibly know who WaPo/Phillips were talking about and, even if they did, no one could come to a negative interpretation of it. Even though, in the decision itself, it is clear that they could mean no one BUT Sandmann and that a huge % of the population DID come to that interpretation. It's a transparently faulty reasoning, and they'd have been better off just saying: "Yeah. Phillips lied to the WaPo, and they sloppily published it. Shame on them, but no legal foul."

Ken B said...

Spiros
In my opinion, the WaPo implies people are racist or Nazis, just to sell papers and to push an agenda not because there is proof. In my opinion they are skilled at skirting the law in these matters.

Ken B said...

Browndog
When I said “people” I did not mean you. I think that is clear from the plain meaning of the word.

narciso said...

I dont see how this works
https://legalinsurrection.com/2019/07/nicholas-sandmann-lawsuit-against-washington-post-dismissed/

Browndog said...

Blogger Ken B said...

Browndog
When I said “people” I did not mean you. I think that is clear from the plain meaning of the word.


Odd, that you assumed I would.

Again, why are you defending this?

William said...

I don't know the legalities but clearly those kids got slandered even if not named individually and the activist told some smolletts. If the judge in the course of his decision had stated that Philips was a fraud and that the WaPo did not make a conscientious effort to ascertain the truth of his allegations, I would have accepted his opinion regarding the technicalities in applying libel law. The kids got wronged, the media did a bad job, and now the courts are saying no biggie. Even if they get away with it this time, they (the activists, the media, the courts) are building more distrust and cynicism about their good offices....The Catholic Church got away with an awful lot of abuse cases for a long time. Part of the reason was that the press covered for them. The media now gives activists the kind of reverence they used to give ordained priests. Some day the dam will burst. It happened to the Church. It's happening to the press itself.

Browndog said...

There is nothing more noble than to argue against public opinion in the public square, based on conviction, and facts.

There is nothing less noble than to wear a black robe and disregard the law in favor of public opinion.

DavidUW said...

Welp in my opinion the judge is a child molester. prove me wrong.

Ignatius Acton Chesterton OCD said...

For the children, for the children, for the children...

It's officially open season on kids visiting D.C. for a civics lesson. This is the kindness and gentleness we can expect from the Left, and indicative of their own respect for freedom of speech.

So kids are supposed to be able to wear all kinds of provocative "speech" clothing in school, but the "wrong" students cannot go to our nation's capital and wear what they want to unmolested because of some grievance hierarchy empowered by those who buy ink by the barrel.

No, no, no... THAT kind of speech by adults is protected. But kids in civics class are fair game.

Meanwhile, in other news, we get 5-4 decision after 5-4 decision from SCOTUS about interpretations that are clearly fogged by politics, not law. The legal citations are the rationalization for the ideological decision, not the emotive basis for the decision itself.

These Lefties don't get it. They believe they can do whatever they want, with no consequences.

This is all going to end very, very badly.

Ken B said...

William
Lots of suits out there still. I think the case against the diocese is a slam dunk. And it was hugely damaging until the truth came out. Lots of reporters named Sandman.

Ignatius Acton Chesterton OCD said...

Ken B @7/26/19, 9:52 PM: "In my opinion they are skilled at skirting the law in these matters."

Wow... "skilled."

Great stuff. Really meaningful.

Thanks. Now I get it.

So people have to punch people in the face now in order to defend their honor, character and reputation. You've left them no other choice. You believe the clever people at WaPo can say whatever they want, with no consequence.

narciso said...

I would say hes a cannibal change my mind.

MikeD said...

So some senile old Carter appointee, 40 years + in the same job. Maybe it's just my 60+ years in the private sector but, I don't know of any employee who could last that long, without being a government slug, in the same position. Unionized & tenured academics included (our hostess continues to be an exception to the rule.

Known Unknown said...

Can I ask in the information age what is the difference between naming someone and slapping their clear-to-see picture everywhere with the context of this story? Sandmann's face was clearly used in the WaPo stories — who else could they be writing about?

MD Greene said...

readering said:

Being labeled a public figure makes it harder for you to win, Crazy Jane.

Absolutely true, and I have studied press law. But it's pretty clear that Nick Sandmann was an involuntary public figure. He was a high school student who got slimed nationally based on outright (and easily discoverable) lies. The retraction of those libels was weak and slow, perhaps because his accuser had more "social credit," a concept we must thank Xi Jinping for giving a name, if not legitimacy.

The First Amendment allows anyone to say what s/he wants, but it may be time for commercial organizations (given the "branding" and audience-courting of theoretically neutral news outlets) to answer for publicly vilifying private citizens based on demonstrably false information. Or at least to examine how quickly and how seriously they attempted to correct their errors.

I trained and worked as a reporter and editor back when slipping your personal views, however slyly, into your reports was a no-no. The consequences then were 1) that you got fired and, if you weren't fired, 2) your publication might lose its credibility, circulation and advertisers. And, yes, lawyers got involved even then. If you went after an identifiable person or organization, you had to justify it first to them.

Now it's the wild west. California has enacted laws to protect celebrity "brands," to the extent that celebrities (public figures by any definition) can go after publications for offenses that infringe on a celebrity's rights to privacy or monetization.

Hulk Hogan, a demonstrable public figure and self-promoter, won a case against a dirtbag journalism outlet that wouldn't have have been possible on 1A grounds. But his lawyers were able to convince jurors to sympathize because he was known to them in a state trial not even set in California.

The whole thing deserves a thorough look, and it is hard to think of a more appropriate challenge than this one.

n.n said...

slapping their clear-to-see picture everywhere with the context of this story

Forming close associations is part of the NYT style guide, and has been exploited for profit by the diversity racket and DNC for at least several decades. Most recently in the multi-trimester witch hunts and warlock trials (e.g. trial by press) hoping to change votes and the law through subversive civil servants, including judges, and so-called "civil rights" organizations.

Renee said...

I guess for me, wasn't the initial reporting, but the lack of follow up which appears the Washington Post was not obligated to do.

Even if the court was right, it appears the Washington Post isn't interested in the reporting the truth, even if it was past the news cycle.

They never had any intention of following up, what-so-ever. It's defamation, but default I guess. You can't go big on a story, then let it just sit there knowing what really occurred.

In the following days, there were reported that supporters of Nathan Phillips tried to interrupt a Mass in Washington DC. The small news agency, that was Catholic, had to wait a full news cycle to confirm what occurred. People were upset in the comment section, that should have just reported something that may not be true, even though it turned out to be.

https://www.catholicnewsagency.com/news/basilica-confirms-nathan-phillips-protest-attempted-mass-disruption-43932

"The statement said that while Mass was being celebrated, “a group of approximately 50 individuals attempted to gain entrance to the basilica while chanting and hitting drums.”



The statement clarified that the protesters attempted to gain entrance to the basilica during the celebration of a specially arranged Mass being celebrated at 7 p.m, and not, as had previously been reported, during the basilica’s regularly scheduled 5:15 p.m. Mass.



“At this time, Mass was being celebrated in the upper church where the individuals attempted to enter,” the statement said.



“In respect and reverence for the Mass, the individuals were not permitted to enter the Basilica due to the disruption it would have caused during the solemn Mass. The individuals were asked to leave the property after it was determined they did not intend to share in the celebration of Mass.”"

Tina Trent said...

Lin Wood's a smart guy. Hopefully this won't be the end of it.

It would be nice to see WaPo hoisted on their own petard of context, since they have weaponized contextual insinuation of prejudice so well.

tim in vermont said...

So you can use 'rhetorical hyperbole’ in describing non public figures if they are of a deplorable class. Got it.

tim in vermont said...

“Sandmann's face was clearly used in the WaPo stories “

Yes, that’s a great loophole too!

tim in vermont said...

Minstrel shows used to engage in ‘rhetorical hyperbole’ too. Good times... good times.

When Huckabee Sanders said ‘countless' instead of ‘many,’ that wasn’t protected ‘rhetorical hyperbole,’ that was put down in the Report by the Highly Partisan Staff Purportedly Reporting to Mueller’ as a ‘lie.”

It’s Calvinball all the way down. Remember when that rodeo clown was sent to re-education camp for mocking Obma? Calvinball.

LaurenceJarvik said...

Didn't the Post run a picture of the boys? Weren't they identifiable from the photo? Something's not right about this decision on its face. I'm sorry Ann, but the boys deserve their day in court and to have a jury decide on the merits. This decision is a short-circuit which just doesn't pass the smell test.

tim in vermont said...

This is sort of like how the Palm Beach prosecutor let Epstein skate and tried to imprison Limbaugh for being addicted to pain killers for a back problem.

tim maguire said...

Defamation standards for private individuals are too high. Of course the Post is guilty and should be made to pay for what they did. The fact that they did not use his name should be only one consideration on whether a person has been identified. He clearly was the focus of these articles.

Current rules encourage irresponsible reporting by rewarding the media for not checking their facts. (That is, “should have known” should be interpreted more broadly.)

Tank said...

I read (some of) the opinion and would not say I was impressed by it. I think the Court probably reached the correct decision, but certainly did not approach it in the way I would have. I also thought many of the individual assessments by the Court were wrong. There is an interesting chart at the end of the opinion. By interesting I don't mean persuasive.

Matt Sablan said...

"Defamation standards for private individuals are too high."

-- I actually didn't used to think so. But reading this decision, it is clear that the courts will deliberately read things in ways that aren't consistent. There is no way you can think both of these things:

* Phillips didn't accuse Sandmann of taunting him; Phillips' opinion that he was taunted is a non-factual statement.

* No one could believe the gist of the articles was that Sandmann (why two Ns? I'm probably wrong, but whatever, I'm on a roll) was a racist or person worther of being disliked/hated/maligned; it is unfortunate so many people took away from the articles that the boy was a racist.

* There is no way a casual reader could have assumed Phillips statement about "that guy in the hat" or the WaPo's discussion of the teens that included "that guy in the hat" were in anyway identifying Sandmann; Sandmann was that guy in the hat who was standing in front of Phillips.

* Phillips ability to retreat or whether he was blocked is an opinion; Phillips made no attempt to go around Sandmann and was not impeded when he tried to withdraw.

All four of those sets of beliefs are held in the decision. They cannot coexist. By making me attempt to believe both things at once, the decision is a bad one and needs to be shot down. You can't turn in poor, shoddy homework when you're issuing a legal decision like this.

Ralph L said...

I read (some of) the opinion and would not say I was impressed by it.

OK, but what does Tank say about it?

Matt Sablan said...

[Of course, all my writing could have been summed up by saying, "There are four lights."]

Jeff Brokaw said...

Whether it is correctly decided or not, this is the type of decision that makes people not trust the rule of law: tortured reasoning that defies “common sense” and protects institutions like the media and activists with an obvious agenda over private individuals with no agenda.

The decision has to be reached in the right manner to be the right decision. Process matters even more than getting it right in the end. Otherwise we have rule by men, not rule of law.

Matt Sablan said...

"The decision has to be reached in the right manner to be the right decision."

-- Man. My math teacher was right; you DO have to always show your work.

Hoss said...

Did I miss something, or is it the opinion of the court that the Washington Post publishes opinion as news? AND did the WaPo argue that their news articles are not news but opinion?

Jeff Brokaw said...

Powerful news operations are in the business of transferring opinions into people’s brains.

I’m going to sum up this decision as follows: now they have free license to trash any private citizen’s reputation and dodge all responsibility by framing it as opinion, and by quoting activists.

True or false?

If true, let’s step back a minute. Is that where we are today?

Somebody please explain to me how in an ethical and moral sense, in a country founded upon individual liberty this is correctly decided. Not as a legal matter based on case law and legal principles (because that is sometimes a house of cards).

Matt Sablan said...

"AND did the WaPo argue that their news articles are not news but opinion?"

-- No. The decision is that the WaPo, by publishing Phillips opinions, did not publish any claims of facts, and even if they did, those claims of facts could not have been viewed as defamatory or could have been positively associated with Sandmann anyway even if they were.

SDaly said...

The only way the Post could win was based upon the crazy rulings, described above, that (1) it was not clearly about Sandman; (2) it didn't suggest he was racist; (3) it was merely reporting opinion. The Court also noted that Kentucky does not have a "neutral report" privilege where a paper just gets to reprint defamatory statements made by others. The Post would have been held to a negligence standard, and it would have lost.

The law actually does protect non-public figures by allowing claims for defamation based upon negligence, and the Court's rigged rulings stripped away that protection.

Matt Sablan said...

SDaly: I think if the WaPo tried to claim that they believed Phillips lies and just didn't do their research, they might have won because, well, the truth did come out eventually, and the WaPo can't be blamed for being incompetent and stupid at the start. It would've been an honest ruling that I could get: "Ok, they're idiots, but not legally culpable idiots." The way the ruling is right now requires me to assert "There are five lights," when I know that isn't true.

SDaly said...

Matt - If the Post claimed it didn't do any research and simply took Phillip's lies as fact, that would open them up to claim for negligence. At least it would have allowed discovery and would probably have survived summary judgment.

The judge knowingly distorted his ruling to sweep the whole thing under the rug. (It was probably the clerk, not the judge, but that isn't an excuse.) The opinion is appalling.

Trolls4Hire said...

Oh my, what awful news! Makes me very sad.

Douglas B. Levene said...

I don't disagree with Prof. Althouse's view of the merits of the court's decision, but something seems wrong. A big media entity can pile on and ruin a kid's reputation with a bunch of made-up b.s. and he has no remedy because the reporters were just expressing their opinions. Doesn't seem right.

holdfast said...

Just remember, everything the Washington Post prints or publishers on its website is merely an opinion. They don’t disseminate fact, they just disseminate opinions. So if anyone sites to the Washington post for a factual matter you can laugh in their face.

Jim at said...

Why not whip up a media storm against the bunch of kids with a pack of lies?

Indeed.

One of these days, they're going to pull this crap on the wrong person or persons. And those people won't bother using the courts to remedy the situation.

Jim at said...

Oh my, what awful news! Makes me very sad.

Will you be just as 'sad' if and/or when it happens to you?

Static Ping said...

The judge may have gotten the law correct.

Nonetheless, what the Washington Post did was despicable.

Static Ping said...

The Washington Post will forever be "fake news."

SDaly said...

I don't disagree with Prof. Althouse's view of the merits of the court's decision, but something seems wrong. A big media entity can pile on and ruin a kid's reputation with a bunch of made-up b.s. and he has no remedy because the reporters were just expressing their opinions. Doesn't seem right.

The Court's opinion is wrong, that why "something seems wrong."

No, a big media entity cannot pile on an ruin a kid's reputation based upon falsehoods. Matt Sablan shows how inept opinion is in ruling, at this stage, that the story wasn't clearly about the boy and was merely reporting opinion. The law says that reporting on private individuals must be more careful than public figures, and liability can be based upon negligence. The Court's ruling saved the Post from that danger by making the ridiculous rulings that it did.

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readering said...

I don't see that "the kid's" reputation was ruined by this. He seems to have been lionized in many circles.

Gandydancer said...
This comment has been removed by the author.
Gandydancer said...

WaPo repeated Phillips' defamatory lie that "the guy in the hat" blocked his way, and his retreat. The opinion notes that KY law (which applies) doesn't allow the paper to repeat defamatory falsehoods that it knows or ought to know are false. The court's own description of the event makes clear that Sandmann didn't do any such thing. But it says that describing someone;s action as "blocking" is mere opinion. This is lunacy. Sandman just stood there after Phillips moved in front of him, Phillips made no attempt to get past him. When he decided to leave no one interfered with him doing so. The opinion says this!

And there is no serious question that Phillips was making this allegation about Sandmann. The WaPo stories showed pictures of Phillips banging his drum in Sandmann's face, for crying out loud. And it wasn'tyjust one story. It was, like, seven of them over two days while fragments of the video looped on cable and the whole thing was available on YouTube. The reporters never looked? And isn't such a claim a question of fact, not law, that should have been determined at trial?

But the court says the statement wasn't about Sandmann, "blocking" is mere opinion, and that saying Sandmann illegally detained Phillips wouldn't anyway be defamatory.

What is wrong with Althouse that she imagines this nonsense can possibly be correct?