Judge Dismisses 5 Lawsuits Filed by Former Covington Catholic Student Nick Sandmann Against Media Outlets Including NYT, ABC, and CBS

A judge has dismissed five lawsuits filed by former Covington Catholic High School student Nick Sandmann against multiple media companies alleging defamation related to their coverage of a viral video confrontation between him and Native American activist Nathan Phillips in Washington, D.C. on Jan. 18, 2019.

Sandmann and his classmates were visiting the nation’s capitol on a school trip and waiting to meet their buses on the stairs at the Lincoln Memorial when the interaction with members of Phillips’ organization, the Black Hebrew Israelites, occurred. The video that showed Sandmann wearing a red “Make America Great Again” hat and “smirking” while Phillips sang and played a drum right in front of him got widespread coverage, with many commentators accusing Sandmann and his classmates of racism.

On Mar. 2, 2020, Sandmann sued CNN, NBC News, ABC News, CBS News, The New York Times, Rolling Stone magazine, and newspaper and television outlet owner Gannett for defamation regarding their coverage of the story.

For example, as Mediaite’s sister site Law&Crime summarized the allegations specifically against ABC News, the outlet made “false and defamatory charges” that Sandmann “stood in [Phillips’] way,” “blocked [Phillips’] way and wouldn’t allow [Phillips] to retreat,” and “wouldn’t let [Phillips’] move,” acting as “the face of an unruly hate mob of hundreds of white, racist high school students who physically assaulted and harassed Native Americans who were engaged in peaceful demonstrations, song and prayer at the National Mall.”

Sandmann alleged in the complaint that it was Phillips who had approached Sandmann and his classmates, “bypassed wide open steps to his alleged destination of the Lincoln Memorial, specifically confronted [Sandmann], and never attempted to move past, around, or away from [Sandmann], as [Sandmann] stood quietly for several minutes in a “Make America Great Again” hat while Phillips beat a drum and sang loudly within inches of [Sandmann’s] face.”

The complaint further alleged that the group of students “were bullied, attacked, and confronted with racist and homophobic slurs and threats of violence by the Black Hebrew Israelites, a recognized hate group, before being unexpectedly confronted without explanation by Phillips, an activist, who proceeded to target [Sandmann] while chanting and beating a drum inches from his face and being flanked by activist companions filming the event in the hopes of capturing a viral sensation that would be used to advance, via social media, an ulterior political agenda.”

Similar allegations were made in the companion complaints against the other media outlets, identifying the specific reporting by each outlet on the story.

Both Sandmann and the media outlet defendants had moved for summary judgment, a legal procedure that allows litigation to be resolved in the earlier stages before a trial.

As Law&Crime’s Aaron Keller reported, Senior District Judge William O. Bertelsman in the federal court for the Eastern District of Kentucky took note of a motion to dismiss that CNN had filed and won on July 26, 2019, finding that “none of the statements were actionable for various reasons: some were not ‘about’ Sandmann; some were statements of opinion; and/or some were not subject to a defamatory meaning.”

“In other words, the case more or less flatlined once before,” wrote Keller. Sandmann filed a motion to reconsider the dismissal of the case and won on the “narrow” grounds regarding “Phillips’s statements that Sandmann had ‘blocked’ Phillips and ‘would not allow him to retreat,” and discovery was allowed to proceed into those topics.

Sandmann reached a settlement with CNN in Jan. 2020 and with NBC in Dec. 2021. The terms of those settlements remain confidential, and while news of the settlements was cheered by MAGA Twitter as vindication, legal experts voiced skepticism that Sandmann could have secured more than a “nuisance fee” payment.

The lawsuits with the five remaining defendants continued, until Bertelsman’s dismissal effectively handed Sandmann a loss.

In his opinion and order dismissing the case, the judge noted the evidence in the record included “(1) Sandmann’s deposition; (2) a declaration under oath by Phillips; (3) seven declarations under oath by persons in attendance at the incident; and (4) a collection of video recordings taken at the National Mall that day,” and then analyzed what was “pertinent to the issues at hand.”

Keller included a detailed discussion of this analysis in his reporting, but the short story was that Phillips’ comments were “objectively unverifiable and thus unactionable opinions.”

“The media defendants were covering a matter of great public interest, and they reported Phillips’s first-person view of what he experienced,” wrote Bertelsman. “This would put the reader on notice that Phillips was simply giving his perspective on the incident.”

“Therefore, in the factual context of this case, Phillips’s ‘blocking’ statements are protected opinions,” Bertelsman continued. In the opinion’s conclusion, he commented that the court’s decision had been made “with fealty to the law as its primary concern, with no consideration of the rancorous political debate associated with these cases.”

“We are disappointed with the decision,” Todd VanDerVeer McMurtry, one of Sandmann’s legal team, told Law&Crime. “We intend to appeal.”