Judge To Reconsider Covington Catholic Teen’s Defamation Lawsuit Against Washington Post

By Margot Cleveland

Tuesday, October 29, 2019

The Washington Post has had a rough couple of days. First, the “Democracy dies in the dark” outlet spent its Sunday apologizing for the glowing obituary lede it gave the world’s most dangerous terrorist, Abu Bakr al-Baghdadi, “an austere religious scholar” who murdered himself and three children by suicide vest when cornered by U.S. forces. Then yesterday, the Post saw the victory it had achieved earlier this year in the defamation suit brought by Covington Catholic teen Nick Sandmann evaporate.

Sandmann had sued the Washington Post after the Post and a bevy of other media outlets cast him “as a smirking MAGA-hat-wearing racist who had blocked Native American elder Nathan Phillips’s path” to the Lincoln Memorial,” I reported in July. At the time, Sandmann and his Covington Catholic High School classmates were waiting for their bus after having attended the March for Life in D.C. A short clip of the incident “captured Phillips playing his drum and singing in the center of the group of Covington Catholic students,” and Phillips told reporters “students had swarmed him as he attempted to make his way up to the Lincoln Memorial.”

The Washington Post ran Phillips’s tale and either linked to or referenced the video snip that had since gone viral. Later, however, full videos came to light that captured the entire incident, and those “showed that Phillips had not attempted to make his way to the Lincoln Memorial, but had instead marched into the group of students and stood in front of Sandmann, beating his drum and singing.”

While the Post and other media outlets quickly issued corrections, the teenage Sandmann had already been “branded a smirking racist and rendered a subject of scorn throughout the country.”

Sandmann proceeded to sue the Washington Post, and others who ran Phillips’ false claims, for defamation. His suit against the Post proceeded in a federal district court in the young man’s home state of Kentucky. In July, Judge William Bertelsman, a semi-retired Jimmy Carter appointee, tossed Sandmann’s case.

In a 30-page opinion, Judge Bertelsman held that, as a matter of law, Sandmann could not prevail against the Washington Post on his defamation claim. The court reasoned that Sandmann’s claim failed because the Post’s articles were not statements “concerning” Sandmann, as they referenced the group of students or did not include a name or picture of Sandmann. He further ruled that the Post’s reporting of the incident was “not factual” because they could not be proven “objectively incorrect.”

Judge Bertelsman’s original opinion was ripe for reversal by Sixth Circuit Court of Appeals. But Sandmann’s attorneys, Todd McMurtry and Lin Wood, opted against appealing immediately, and instead asked Judge Bertelsman to reconsider his decision. Sandmann’s lawyers also requested permission to file an amended complaint.

Yesterday, over the Washington Post’s opposition, the court granted both motions, set aside its earlier decision dismissing Sandmann’s defamation case and accepted Sandmann’s amended complaint. In reinstating Sandmann’s defamation case, the court stressed that the amended complaint relied on the same 33 statements the Post had made in the original complaint.

Judge Bertelsman then noted that after giving “this matter careful review,” he had decided that Sandmann sufficiently alleged a claim for defamation against the Post based on the statements identified as “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.’”

All three statements consisted of the Washington Post repeating Phillips’s fabled encounter with Sandmann. In what was identified as Statement 10, the Washington Post wrote: “It was getting ugly, and I was thinking: ‘I’ve got to find myself an exit out of this situation and finish my song at the Lincoln Memorial,’ Phillips recalled. ‘I started going that way, and that guy in the hat stood in my way and we were at an impasse. He just blocked my way and wouldn’t allow me to retreat.”

Statement 11 consisted of the Post publishing Phillips’s recounting of the event as such: “A few of the young people chanted ‘Build that wall, build that wall,’ the man said, adding that a teen, shown smirking at him in the video, was blocking him from moving.” The final statement, Statement 33, also quoted Phillips—as well as misstating his war record—“Phillips, who fought in the Vietnam War, says in an interview ‘I started going that way, and that guy in the hat stood in my way and we were at an impasse. He just blocked my way and wouldn’t allow me to retreat.’”

In ruling that these statements were sufficient to allow Sandmann’s case to move forward, the court also noted that in his amended complaint, Sandmann alleged in great detail “that Phillips deliberately lied concerning the events at issue,” and that but for the Washington Post’s negligence or malice, they would have realized as much.

Sandmann’s case is far from over. Now, the parties must engage in the costly and time-consuming process of discovery. And that’s where things could get really interesting—when the Post is forced to hand over internal communications concerning its reporting on the MAGA-hat-wearing Sandmann and his Catholic classmates who had just attended the March for Life.

For now, though, Nick’s father, Ted Sandmann, is just grateful Judge Bertelsman took the time to reconsider his ruling. “We are invigorated and united in our purpose to achieve justice for Nicholas and the other Covington Catholic boys so slandered by the Washington Post and other news organizations,” the senior Sandmann told me. “This is a huge win for justice and for the Sandmann family,” attorney Todd McMurtry noted, adding that “Lin Wood and I are united in our desire to obtain justice for Nicholas.”