United States District Court, E.D. Kentucky, Northern Division, Covington
OPINION AND ORDER
a defamation action arising out of events that occurred in
our nation's capital on January 19, 2019, among various
groups who were exercising their rights to free assembly and
speech. In this age of social media, the events quickly
became the subject of posts, squares, tweets, online videos,
and - pertinent here -statements published by major media
result, plaintiff Nicholas Sandmann ("Sandmann")
found himself thrust into the national spotlight. He has
filed suit against defendant WP Company LLC d/b/a The
Washington Post ("The Post"), alleging that The
Post negligently published false statements about him that
were defamatory in relation to the events in
case is currently before the Court on The Post's motion
to dismiss Sandmann's complaint on several legal grounds.
(Doc. 27). This matter is fully briefed, and the Court heard
formal oral arguments on July 1, 2019. (Doc. 44) .
further study, the Court now issues the following Opinion and
and Procedural Background
January 18, 2019, a group of students from Covington Catholic
High School in Park Hills, Kentucky attended the March for
Life in Washington, D.C., accompanied by sixteen adults.
(Compl. ¶ 20) . Among the students was plaintiff
Nicholas Sandmann, who was wearing a "Make America Great
Again" ("MAGA") hat that he had bought as a
souvenir. (Id. ¶ 22).
and his classmates were instructed to wait at the steps of
the Lincoln Memorial for the buses to arrive for their return
trip to Kentucky. (Id. ¶ 21). While the
students waited, a group of men from an organization called
the Black Hebrew Israelites began yelling racial epithets and
threats of violence towards them. (Id. ¶¶
this yelling had been going on for almost an hour, a third
group of individuals - Native Americans who had been
attending the Indigenous Peoples March on the National Mall
that day - began approaching the students, singing and
dancing, and recording a video. (Id. ¶ 27). At
the front of the group was a Native-American activist named
Nathan Phillips ("Phillips"). (Id.
¶¶ 3, 26). Phillips was beating a drum and singing.
the Native Americans reached the students, Sandmann was at
the front of the student group. Phillips walked very close to
Sandmann, beating his drum and singing within inches of
Sandmann's face. (Id. ¶¶ 34-35)
Sandmann did not confront Phillips or move toward him, and
Phillips made no attempt to go past or around Sandmann.
(Id. ¶¶ 37-41, 50) . Sandmann remained
silent and looked at Phillips as he played his drum and sang.
The encounter ended when Sandmann and the other students were
told to board their buses. (Id. ¶ 48).
evening, Kaya Taitano, a participant in the Indigenous
People's March, posted online two short videos showing
portions of the interaction between Sandmann and Phillips.
(Id. ¶ 52).
11:13 p.m., a Twitter account tweeted a short excerpt from
Taitano's videos with the comment "This MAGA loser
gleefully bothering a Native American protestor at the
Indigenous Peoples March." (Id. ¶ 54).
Saturday, January 19, 2019, one of the Hebrew Israelite
members who had been at the demonstration posted on Facebook
a 1-hour, 46-minute video of the incident with Sandmann and
Phillips, which Sandmann alleges accurately depicts those
events. (Id. ¶ 63) .
same day, the Post published the first of seven articles that
Sandmann alleges were defamatory in various respects: one
article on January 19; four on January 20; and two on January
21. (Doc. 1 ¶¶ 111-162; Doc. 1-5 through Doc.
1-11). The Post also published three Tweets on its Twitter
page on January 19 which Sandmann alleges were likewise
defamatory. (Doc. 1 ¶¶ 158-161).
January 20, 2019, Sandmann made a public statement describing
his version of the events concerning Phillips. (Doc. 1 ¶
69). Three days later, Sandmann gave an interview to Savannah
Guthrie on the Today show on NBC, again relating his
version of the encounter with Phillips. (Id. ¶
filed suit against The Post on February 19, 2019, alleging a
single cause of action for defamation and seeking
compensatory damages of $50, 000, 000.00 and punitive damages
of $200, 000, 000.00. (Doc. 1 at 37-38).
Court must now determine whether Sandmann's allegations
state a viable claim for relief. These are purely questions
of law that bear no relation to the degree of public interest
in the underlying events or the political motivations that
some have attributed to them.
Rule 12(b) (6)
motion to dismiss under Fed. R. Civ. P 12(b)(6), this Court
must "construe the complaint in the light most favorable
to the nonmoving party, accept the well-pled factual
allegations as true, and determine whether the moving party
is entitled to judgment as a matter of law."
Commercial Money Ctr., Inc. v. Ill. Union Ins. Co.,
508 F.3d 327, 336 (6th Cir. 2007) (internal quotation marks
and citation omitted). The Court need not, however,
"accept the plaintiff's legal conclusions or
unwarranted factual inferences as true." Id.
"To state a valid claim, a complaint must contain direct
or inferential allegations respecting all the material
elements under some viable legal theory." Id.
court may consider exhibits attached to the complaint, public
records, items appearing in the record of the case, and
exhibits attached to defendant's motion to dismiss, so
long as they are referred to in the complaint and are central
to the claims contained therein, without converting the
motion to one for summary judgment." E.g., Stein v.
hhgregg, Inc., 873 F.3d 523, 528 (6th Cir. 2017)
(citation omitted). Thus, "if a plaintiff references or
quotes certain documents, or if public records refute a
plaintiff's claim, a defendant may attach those documents
to its motion to dismiss, and a court can then consider them
in resolving the Rule 12(b)(6) motion . . . Fairness and
efficiency require this practice." In re Omnicare,
Inc. Sec. Litig., 769 F.3d 455, 466 (6th Cir. 2014) .
Where an exhibit "contradicts allegations in the
complaint to which it is attached, the exhibit trumps the
allegations." See, e.g., Kreipke v. Wayne State
Univ., 807 F.3d 768, 782 (6th Cir. 2015) (citation and
internal quotation marks omitted); 2 James Wm. Moore et al.,
Moore's Federal Practice § 12.34(2) (Matthew Bender
3d ed. 2018) [hereinafter "Moore's"].
in ruling on The Post's motion, the Court may consider
the seven articles, the Tweets, and the two YouTube videos
because these materials are either referenced in or attached
to the Complaint and Sandmann relies on them in support of
his defamation claim. The Court excludes all other materials
attached to the parties' briefs.
Kentucky Defamation Law
Kentucky, a cognizable claim for defamation requires:
(a) a false and defamatory statement concerning another;
(b) an unprivileged publication to a third party;
(c) fault amounting at least to negligence on the part of the
(d) either action ability of the statement irrespective of
special harm or the existence of special harm caused by the
Toler v. Sud-Chemie, Inc., 458 S.W.3d276, 282 (Ky.
2014) (internal footnote omitted) (quoting Restatement
(Second) of Torts § 558 (Am. Law Inst. 1977)) (hereafter
"Rest. 2d."). But a "defamation claim against
a media defendant cannot derive from 'a statement of
opinion relating to matters of public concern [that] does not
contain a provably false factual connotation'"
unless "the challenged statement connotes
actual, objectively verifiable
facts." Compuware Corp. v.
Moody's Inv'rs Servs., 499 F.3d 520, 529 (6th
Cir. 2007) (alteration in original) (emphasis added) (quoting
Milkovich v. Lorain Journal Co., 97 U.S. 1');">497 U.S. 1, 20
Court notes that the present motion does not require the
Court to address the elements of truth/falsity, publication
(which is not disputed), or negligence. At issue are only
whether the statements are about Sandmann, whether they are
fact or opinion, and whether they are defamatory.
turning to the merits, the Court must first discuss these
important legal principles in more detail.
"About" or "Of and Concerning" the
first element of a defamation claim requires that the
challenged statements be "about" or
"concerning" the plaintiff. Stringer v.
Wal-Mart Stores, Inc., 151 S.W.3d 781, 793 (Ky. 2004),
overruled on other grounds by Toler v. Sud-Chemie,
Inc., 4 58 S.W.3d 276 (Ky, 2014); see also
Rosenblatt v. Baer, 383 U.S. 75, 81 (1966) .
"the plaintiff need not be specifically identified in
the defamatory matter itself so long as it was so
reasonably understood by plaintiffs 'friends and
acquaintances . . . familiar with the incident.'"
Stringer, 151 S.W.3d at 794 (alteration in original)
(emphasis added) (quoting E. W. Scripps Co. v.
Cholmondelay, 569 S.W.2d 700, 702 (Ky. Ct. App. 1978)).
But this rule is limited by the principle, now memorialized
in the Restatement,  that "where defamatory statements are
made against an aggregate body of persons, an individual
member not specially imputed or designated cannot maintain an
action." See, e.g., Louisville Times v.
Stivers, 68 S.W.2d 411, 412 (Ky. 1934) (citation
individual plaintiff to bring a defamation action based on
such comments, the Kentucky Supreme Court has instructed that
"the statement must be applicable to every member of the
class, and if the words used contain no reflection upon any
particular individual, no averment can make them
defamatory." Kentucky Fried Chicken, Inc.
v. Sanders, 563 S.W.2d 8, 9 (Ky. 1978). This
determination should be made "in the context of the
whole article." Id.
The "Falsity" Requirement is Met Only Where the
Words Used State Verifiable Facts, Not Opinions
first element of a defamation claim also requires that the
allegedly libelous statement be objectively false. Under
Kentucky law, a statement in the form of an opinion can be
defamatory, but it is "actionable only if it implies the
allegation of undisclosed defamatory facts as the basis for
the opinion." Yancey v. Hamilton, 786 S.W.2d
854, 857 (Ky. 1989) (quoting Rest. 2d § 566)
Milkovich v. Loraine Journal Co., however, the
Supreme Court subsequently held that "'a statement
of opinion relating to matters of public concern which does
not contain a provably false factual connotation will receive
full constitutional protection' and that 'statements
that cannot reasonably [be] interpreted as stating actual
facts, are not actionable.'" Jolliff v.
N.L.R.B., 513 F.3d 600, 610 (6th Cir. 2008) (internal
quotation marks omitted) (quoting Milkovich v. Lorain
Journal Co., 4 97 U.S. 1, 2 0 (1990)).
The Post's articles concern groups of citizens who were
assembled in the nation's capital to support or oppose
various causes of importance to them. This is inherently a
matter of public concern.
"the falsity requirement is met only if the statement in
question makes an assertion of fact-that is, an assertion
that is capable of being proved objectively incorrect,"
Clark v. Viacom Int'l, Inc., 617 Fed.Appx. 495,
508 (6th Cir. 2015) (emphasis added) (citing
Milkovich, 497 U.S. at 20), or otherwise
"connotes actual, objectively verifiable facts."
Compuware Corp., 499 F.3d at 529.
Courts adhere to Milkovich's "provable as
false" standard. See, e.g., Welch v. American
Publ'g Co., 3 S.W.3d 724, 730 (Ky. 1999);
Williams v. Blackwell, 487 S.W.3d 451, 454 (Ky. Ct.
App. 2016); Cromity v. Meiners, 494 S.W.3d 499,
503-04 (Ky. Ct. App. 2015).
addition, Kentucky has rejected the doctrine of "neutral
reportage"; that is, a newspaper may still be held
liable for quoting "newsworthy statements" of third
parties. McCall v. Courier-Journal & Louisville Times
Co., 623 S.W.2d 882, 886-87 (Ky. 1981).
The Publication, Evaluated as a Whole, Must be ...