- The Washington Times - Updated: 5:37 p.m. on Thursday, August 17, 2023

A federal appeals court refused to resurrect former Covington Catholic student Nicholas Sandmann’s defamation lawsuits against five news outlets, ruling that their lopsided coverage of his encounter with an American Indian activist conveyed opinion and was therefore protected speech.

The Sixth Circuit Court of Appeals ruled 2-1 in favor of a lower court’s decision last year to dismiss the complaints filed by Mr. Sandmann, who was 16 when he was accused by 64-year-old Nathan Phillips of instigating a 2019 confrontation at the Lincoln Memorial that went viral.

The activist’s version of events drove the mainstream media narrative casting the Kentucky teen and his classmates as racially motivated aggressors, until lengthier video showed that Mr. Phillips approached the group, not vice versa.

Judge Jane Branstetter Stranch said in the majority opinion that the widely reported claims made by Mr. Phillips, including that the teen “blocked” him, were opinion and therefore non-actionable.

“Phillips’s statements are opinion, not fact,” Judge Stranch, an Obama appointee, said in the Wednesday decision joined by Judge Stephanie D. Davis, a Biden appointee.

“Because the statements are opinion, they are protected by both the Constitution and Kentucky law, and they are nonactionable,” said Judge Stranch. “The district court did not err in so concluding.”

Disagreeing was Judge Richard Allen Griffin, a George W. Bush appointee who said in a lengthy dissent that the cases “raise classic claims of defamation” that should be decided by a jury.

“Through their news reporting, defendants portrayed plaintiff Nicholas Sandmann as a racist against Native Americans,” he said. “Their characterization of Nicholas was vicious, widespread, and false. Defendants’ common narrative was readily accepted and effective to the extent that, on national television, NBC’s Today Show host Savannah Guthrie asked the 16-year-old if he thought he ‘owe[d] anybody an apology’ for his actions and if he saw his ‘own fault in any way.’”

Judge Griffin said Mr. Phillips’ claims were “objectively verifiable and, therefore, factual statements capable of defamatory meaning.”

“That a third party (Phillips) made the statements also does not shield defendants from liability for its reporting,” Judge Griffin said. “The Kentucky Supreme Court has rejected the neutral reportage doctrine—which would grant defamation immunity to publishers for reprinting ‘newsworthy statements.’”

As a result, he said, “[e]ven though Phillips—a non-party in this litigation—made the ‘blocking,’ ‘retreating,’ and ‘sliding’ statements, defendants may be liable for republishing those false statements.”

The five media companies sued by Mr. Sandmann are the New York Times, ABC, CBS, Rolling Stone, and Gannett. He previously reached settlements on undisclosed terms with CNN, NBC, and the Washington Post.

Sandmann attorney Todd V. McMurtry indicated the legal fight isn’t over, saying “Nick Sandmann and his lawyers vow to fight on to the end of the judicial process.”

Judge Griffin said the majority opinion “holds that the blocking, retreating, and sliding statements were likely Phillips’s subjective impressions of Sandmann’s intent.”

“There is no way to determine what Sandmann’s intent was from the videos of the encounter, which approximate the information available when Phillips made the blocking statements,” Judge Griffin said. “However, contrary to the majority’s rewrite, the articles do not report Phillips’s feelings or perceptions. Rather, the articles report a factual encounter as recited by Phillips.”

The majority countered that “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,” Judge Stranch said. “The statements’ opinion-versus-fact status is ‘not a question for the jury.’”

Mr. Sandmann’s next option would be to seek a review before the entire Sixth Circuit, known as an en banc review. If that fails, the Transylvania University student could petition the Supreme Court, which Cornell Law School professor William Jacobson called a longshot.

“Law professor Jonathan Adler thinks this case might be ripe for ‘en banc’ review by the entire 6th Circuit, given the long dissent. After that, it’s probably the end of the road,” Mr. Jacobson said on his Legal Insurrection blog. “I can’t see this as a case the Supreme Court would take.”

• Valerie Richardson can be reached at vrichardson@washingtontimes.com.

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