Covington Catholic student Nick Sandmann went viral as the MAGA hat-wearing kid who smirked in the face of a Native-American activist. Sandmann claims he and his friends were the ones being harassed — allegedly by a group of Black Israelites. People have argued that this is why it was “more complex” that some students were heard hurling invective at a Native-American guy while Sandmann stood there, which doesn’t exactly follow but here we are.
Sandmann filed a massive defamation lawsuit against the Washington Post over its reporting on the incident. Conservative social media gleefully proclaimed that the $250 million lawsuit would destroy the Washington Post, the only major national newspaper with lingering credibility in a world where Maggie Haberman continues to masquerade as a journalist for the New York Times. As it turned out, the Sandmann case just got booted to the curb exactly as every actual lawyer expected.
Whether Sandmann took part in the uglier aspects of the fracas or not — or whether or not merely wearing a hat largely accepted as communicating animosity toward minorities was enough to make Sandmann more than a passive bystander in the affair — weren’t issues the court even needed to touch. In the end, Judge Bertelsman actually read the Washington Post articles and decided that hurting a snowflake’s feelings didn’t amount to defamation in Kentucky… or anywhere actually:
The Court accepts Sandmann’s statement that, when he was standing motionless in the confrontation with Phillips, his intent was to calm the situation and not to impede or block anyone.
However, Phillips did not see it that way. He concluded that he was being “blocked” and not allowed to “retreat.” He passed these conclusions on to The Post. They may have been erroneous, but, as discussed above, they are opinion protected by the First Amendment. And The Post is not liable for publishing these opinions, for the reasons discussed in this Opinion.
And that is the only specific claim that Sandmann identified as defamatory. The rest of the complaint relied heavily on the phrase “false and defamatory gist,” and for those of you taking the bar exam, causes of actions are rarely pleaded with particularity when the complaint repeatedly uses the word “gist.”
This is a huge blow to the psyche of right-wing social media which at this point is just Wall memes, Sandmann’s cause, and QAnon theories all cobbled together with scotch tape and dementia. But lawyers should know better. Even the right-wing commentators at Legal Insurrection called the suit out as silly from jump. But over at The Federalist, they’re still spinning nonsense about the strength of the complaint and holding out hope that the Sixth Circuit will swoop in and smash the Washington Post. Hey, any court that has judges like John Bush who can boast “anti-gay blogger” as his primary qualification for the job always has a decent chance of taking a radical departure from the law, but barring a panel of judges looking to waste judicial resources for the sake of rallying the base, this shambles of a case should be finally put out of its misery.
(Opinion available on the next page.)
Infamous Covington High School Student Lawyers Up, Gets Ready To Pursue Defamation Claims
Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.