Federal Judge Partially Revises Decision in Sandmann Case Against Washington Post

U.S. Judge William Bertelsman reversed course and ruled that attorneys for Nick Sandmann could start discovery for a portion of their lawsuit against the "Washington Post" over its coverage of the so-called Cov Cath incident.=

Oct 28, 2019 at 3:58 pm
Social Media image showing the viral encounter between Nathan Phillips and Covington Catholic student Nick Sandmann - Instagram/Autumn Rain
Instagram/Autumn Rain
Social Media image showing the viral encounter between Nathan Phillips and Covington Catholic student Nick Sandmann

A lawsuit over coverage by The Washington Post of a March incident in front of the Lincoln Memorial in Washington D.C. involving students from a local private high school and indigenous activists is back on — at least in part.

U.S. District Court Judge William Bertelsman issued a ruling that partially walks back his earlier dismissal of a lawsuit against the Post by the family of Covington Catholic student Nick Sandmann, allowing for discovery on three of the 33 statements Sandmann's attorneys claim are defamatory in their lawsuit.

Video of a standoff between the students and indigenous marchers at the National Mall went viral, leading to condemnation of the students' actions. Photos and video show Sandmann in the middle of that incident.

Sandmann and his attorneys, L Lin Wood and Todd McMurtry, claim in the suit that early reports from the Washington Post and other outlets about the initial, short viral video suggested that a group of students from the Northern Kentucky private school, including Sandmann, had surrounded the small group of Native American marchers, including elder Nathan Phillips, on the National Mall and threatened or even physically harmed them. 

Later, longer videos showed a more complicated scenario in which the Native American marchers and students converged after the former walked in between the students and another group called the Black Hebrew Israelites. After that video came to light, many news outlets ran corrections or retractions to their original stories. 

Sandmann’s attorneys claim in the lawsuit that 33 assertions in the Post article were false and defamed Sandmann.

However, Eastern District of Kentucky Judge William Bertelsman ruled July 26 that the Post's article "states none of those things" that Sandmann's attorneys allege.

Bertelsman acknowledged Sandmann's claim that he simply stood still as Phillips drummed. Phillips was quoted in the Post article and elsewhere saying he felt blocked in by Sandmann and other students, some of whom were chanting and making "tomahawk chop" motions.

But, the judge wrote, that was Phillips' opinion and, correct or incorrect, it is protected by the First Amendment and the Post and other outlets should be able to print it without penalty. Bertelsman also wrote that Sandmann's suit contained "precisely the type of explanation or innuendo that cannot enlarge or add to the sense or affect of the words charged to be libelous."

Sandmann's attorneys this month sought to add a First Amendment claim to their lawsuit. 

In the new opinion, Bertelsman wrote that the facts of the case had not substantively changed, but said that he would allow discovery on three of the 33 statements Sandmann's attorneys identified as defamatory. Those three points involve statements Phillips made in early stories by the Washington Post. Sandmann's attorneys allege that Phillips knowingly lied about the incident and his feelings that he was trapped, and that the Washington Post should have done more to check his veracity. 

An Oct. 24 filing by Sandmann's attorneys points out that Phillips said he was surrounded in his statements to the Post and that he could not move away from the confrontation.

"We do not know for certain, however, who any of the people behind Phillips are – we know only that none of them appears to be wearing CovCath-branded clothing or MAGA clothing," the filing reads. "And none of them appears to be 'blocking [Phillips’] retreat.' Discovery is necessary to determine who these people are and whether 'Phillips’s account was substantially accurate' as the Post contends... or whether Phillips was lying, as Nicholas has contended in his First Amended Complaint."

Bertelsman's new ruling will allow Sandmann's attorneys to subpoena the people shown in the videos and take other actions necessary to gather evidence around those questions. 

"The Court will adhere to its previous rulings as they pertain to these statements except Statements 10, 11, and 33, to the extent that these three statements state that plaintiff 'blocked' Nathan Phillips and 'would not allow him to retreat,' " Bertelsman writes in the decision. "Suffice to say that the Court has given this matter careful review and concludes that 'justice requires' that discovery be had regarding these statements and their context. The Court will then consider them anew on summary judgment."

Wood, Sandmann's attorney, tweeted about the decision.

"As a (sic) prepare for summary judgment hearing today in LA in Vernon Unsworth v. Elon Musk, the news of our team’s huge win in Covington, KY reaffirms my career-long belief that our system of justice works," he wrote. "Nicholas Sandmann deserves his day in court against WaPo. Now he will get it."