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Sandmann v. WP Co. LLC

United States District Court, E.D. Kentucky, Northern Division, Covington

July 26, 2019



         This is 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 outlets.

         As a 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 question.[1]

         This 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) .

         After further study, the Court now issues the following Opinion and Order.

         Factual and Procedural Background

         On 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).

         Sandmann 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. ¶¶ 23, 78(b)).

         When 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.

         When 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).

         That 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).

         At 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).

         On 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) .

         That 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).

         On 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. ¶ 70).[2]

         Sandmann 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).

         The 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.


         A. Rule 12(b) (6)

         On a 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.

         "[A] 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"].

         Accordingly, 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.

         B. Kentucky Defamation Law[3]

         In 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 publisher; and
(d) either action ability of the statement irrespective of special harm or the existence of special harm caused by the publication.

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 (1990)).

         The 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.

         Before turning to the merits, the Court must first discuss these important legal principles in more detail.

         1. "About" or "Of and Concerning" the Plaintiff

         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) .

         Generally, "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, [4] 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 omitted) .

         For an 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.

         2. The "Falsity" Requirement is Met Only Where the Words Used State Verifiable Facts, Not Opinions

         The 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) .[5]

         In 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)).

         Here, 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.[6]

         Thus, "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.

         Kentucky 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).

         In 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).

         3. The Publication, Evaluated as a Whole, Must be ...

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