WILLIAM O. BERTELSMAN, District Judge.
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.
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
After further study, the Court now issues the following Opinion and Order.
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).
Sandmann filed suit against The Post on February 19, 2019, alleging a single cause
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.
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.
In Kentucky, a cognizable claim for defamation requires:
Toler v. Süd-Chemie, Inc., 458 S.W.3d 276, 282 (Ky. 2014) (internal footnote omitted) (quoting RESTATEMENT (SECOND) OF TORTS
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.
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. Süd-Chemie, Inc., 458 S.W.3d 276 (Ky. 2014); see also Rosenblatt v. Baer, 383 U.S. 75, 81, 86 S.Ct. 669, 15 L.Ed.2d 597 (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,
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.
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).
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.
Thus, "the falsity requirement is met only if the statement in question makes an assertion of fact—that is,
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).
Lastly, to satisfy the first element of a defamation claim, the language in question must "be both false and defamatory. A statement that is false, but not defamatory is not actionable; a statement that is true is not actionable even if defamatory." Dermody v. Presbyterian Church U.S.A., 530 S.W.3d 467, 472-73 (Ky. Ct. App. 2017) (emphasis added).
"[Kentucky] common law treats a broad[] class of written defamatory statements as actionable per se." Stringer, 151 S.W.3d at 794-95. But in order for a defendant's written statement to be "actionable per se justifying a recovery without averments of special damages," it must be more than annoying, offensive, or embarrassing; the words must "tend to expose the plaintiff to public hatred, ridicule, contempt or disgrace, or to induce an evil opinion of him in the minds of right-thinking people," Digest Publ'g Co. v. Perry Publ'g Co., 284 S.W.2d 832, 834 (Ky. 1955), or the statement must "impugn one's competence, capacity, or fitness in the performance of his profession," Welch, 3 S.W.3d at 735.
The Restatement explains that what constitutes actionable defamation is not subject to the whims of those in society who are faint of heart:
REST. 2d § 559 cmt. e. "[T]he fact that a person who is prone to think evil of others, hearing words obviously intended to be innocent, by an unreasonable construction attaches to them a derogatory meaning, does not render the language defamatory." REST. 2d § 563 cmt. c.
"In determining whether a writing is libelous per se [under Kentucky law],
Finally, the Court must "analyze the article in its entirety and determine if its gist or sting is defamatory." McCall, 623 S.W.2d at 884; Biber v. Duplicator Sales & Serv., 155 S.W.3d 732, 738 (Ky. Ct. App. 2004).
As noted, the Complaint in this matter challenges seven articles and three Tweets. In total, these publications contain thirty-three statements that Sandmann alleges are defamatory. A chart setting forth the statements, drawn from the Complaint,
The first three articles that Sandmann challenges have in common nine statements: statements 1-3, 8, 10, 13, and 15-17.
The First Article does not mention Sandmann by name, there is no identifiable description of him, and there is no picture of Sandmann in the article.
Instead, statement numbers 1-3, 8, 13, 15, and 16 refer to "hat wearing teens"; "the teens"; "teens and other apparent participants"; "A few people"; "those who should listen most closely"; and "They." These statements are not actionable because they are not about Sandmann. See Sanders, 563 S.W.2d at 9 (affirming dismissal of defamation complaint where newspaper published derogatory statements about KFC's gravy because there was "nothing in the present article which identified" or made "direct reference to" plaintiff's particular restaurant location); Stivers, 68 S.W.2d at 411-12 (holding that plaintiff's defamation claim should have been dismissed because statement that the "Stivers clan" had been involved in "fist fights and gun battles" was toward a group or class and not actionable as a matter of law); O'Brien v. Williamson Daily News, 735 F.Supp. 218, 220 (E.D. Ky. 1990) (dismissing defamation claims of teachers not identified in an article that mentioned "teachers having affairs with students" because the article referred to "no identifiable group member and does not impugn the reputation of any specific member"), aff'd, 931 F.2d 893 (6th Cir. 1991).
Like the statements about groups or classes such as "the Stivers clan"; Kentucky Fried Chicken restaurants; and "teachers," statements such as "hat wearing teens," are clearly "made against an aggregate body of persons," Stivers, 68 S.W.2d at 412, and thus "an individual member not specially imputed or designated cannot maintain an action." Id. Sandmann is not specifically mentioned in the article. Therefore, because "the words used contain no reflection upon any particular individual, no averment can make them defamatory." Sanders, 563 S.W.2d at 9.
These statements are also not actionable for other reasons, discussed below.
Few principles of law are as well-established as the rule that statements of opinion are not actionable in libel actions.
This rule is based on the right to freedom of speech in the First Amendment to the United States Constitution. See David A. Elder, Kentucky Tort Law: Defamation and the Right of Privacy § 2.04 (1983); 13 David J. Leibson, Kentucky Practice (Tort Law) § 15:2 (1995).
This Court has had occasion to address this issue several times. See Loftus v. Nazari, 21 F.Supp.3d 849, 853-54 (E.D. Ky. 2014) (holding that patient's statements regarding allegedly poor results of plastic surgery were protected opinion); Lassiter v. Lassiter, 456 F.Supp.2d 876, 881-82 (E.D. Ky. 2006) (holding that woman's statement that her ex-husband had committed adultery was protected opinion because the facts on which she based that statement were all disclosed in the publication in question), aff'd, 280 F. App'x 503 (6th Cir. 2008).
Lassiter, 456 F. Supp. 2d at 881 (alteration in original) (quoting 13 David J. Leibson, Kentucky Practice (Tort Law) § 15:2 at 449 (1995)).
Under these authorities, the statements that Sandmann challenges constitute protected opinions that may not form the basis for a defamation claim.
First, statements 1-3, 10, 13, 16, 17 are not actionable because they do not state or imply "actual, objectively verifiable facts." Compuware Corp., 499 F.3d at 529; Yancey, 786 S.W.2d at 857.
Instead, these statements contain terms such as "ugly," "swarmed," "taunting," "disrespect," "ignored," "aggressive," "physicality," and "rambunctious." These are all examples of "loose, figurative," "rhetorical hyperbole" that is protected by the First Amendment because it is not "susceptible of being proved true or false." Milkovich, 497 U.S. at 17, 21, 110 S.Ct. 2695; Seaton v. TripAdvisor LLC, 728 F.3d 592, 597 (6th Cir. 2013).
The above terms are also "inherently subjective," like "dirtiest," Seaton, 728 F.3d at 598, or "squandered" and "broke," Welch, 3 S.W.3d at 730, all of which are "not so definite or precise as to be branded as false." Id.; see also Turner v. Wells, 879 F.3d 1254, 1270 (11th Cir. 2018).
Next, statement 2 quotes Phillips as saying he "felt threatened" when he was "swarmed." And statement 10 quotes this assertion:
(Doc. 1-5 at 3) (emphasis added).
Again, even if these statements could be construed to refer to Sandmann, they do not convey "actual, objectively verifiable facts." Compuware, 499 F.3d at 529; Yancey, 786 S.W.2d at 857. How Phillips "felt" is obviously subjective, and whether Phillips was "swarmed" or "blocked" is simply not "capable of being proved objectively incorrect." Clark, 617 F. App'x at 508 (citing Milkovich, 497 U.S. at 20, 110 S.Ct. 2695).
The word "block" is a transitive and "figurative" verb meaning "to obstruct or close with obstacles."
Sandmann admits he was standing in silence in front of Phillips in the center of a confusing confrontation between the students and the Indigenous Peoples group. (Doc. 1 ¶¶ 39-44). Sandmann's intent, he avers, was to diffuse the situation by remaining motionless and calm. (Doc. 1-2 at 2). Phillips, however, interpreted Sandmann's action (or lack thereof) as blocking him and not allowing him to retreat.
A case from another federal district court illustrates this principle. See Macineirghe v. County of Suffolk, No. 13-cv-1512, 2015 WL 4459456 (E.D.N.Y. July 21, 2015). While not binding, the Court finds its reasoning highly persuasive.
In Macineirghe, two brothers and their father sued numerous defendants for claims arising out of their confrontations with local police and persons employed by a local hospital. As relevant here, the father ("Tomas") asserted a libel claim against a hospital nurse ("Benavides") who gave a statement to the police in the wake of the plaintiffs' arrest. Id. at *7. That statement provided Benavides's observations of events inside and outside the hospital:
Id. (emphasis added).
The father testified that his foot simply "gave way," causing him to fall, and that the nurse's statement that he "blocked" the police car was defamatory. Id. at *4. The Court held, however, that the statement was "pure opinion" because all the underlying facts on which the nurse based the "blocked" statement were disclosed:
Id. at *14.
The Court reaches the same conclusion here regarding Phillips's "blocked" statement: it is a protected, nonactionable opinion implying no undisclosed facts.
Even assuming, arguendo, that the above statements are "about" Sandmann and that they convey objectively provable facts, "there is no allegation of special damages, [so] unless the publication may be considered as actionable per se," the Court must dismiss the action. Hill, 258 S.W.2d at 918; Dermody, 530 S.W.3d at 475; Bell, 402 S.W.2d at 86.
Then, the Court must "analyze the article in its entirety and determine if its gist or sting is defamatory." McCall, 623 S.W.2d at 884.
Sandmann alleges that the "gist" of the First Article is that he (1) "assaulted" or "physically intimidated Phillips"; (2) "engaged in racist conduct"; and (3) "engaged in taunts." (Doc. 1, ¶¶ 115-17). But this is not supported by the plain language in the article, which states none of those things.
Instead, Sandmann's reasoning is precisely the type of "explanation" and "innuendo" that "cannot enlarge or add to the sense or effect of the words charged to be libelous, or impute to them a meaning not warranted by the words themselves." Dermody, 530 S.W.3d at 475 (internal quotation marks omitted).
And while unfortunate, it is further irrelevant that Sandmann was scorned on social media. That is "extrinsic evidence of context or circumstances" outside the four corners of the article that renders the publication libel per quod. Stringer, 151 S.W.3d at 795; Crabb, 182 S.W.3d at 547.
First, the article cannot reasonably be read as charging Sandmann with physically intimidating Phillips or committing the criminal offense of assault. Cf. Old Dominion Branch No. 496, Nat'l Ass'n of Letter Carriers, AFL-CIO v. Austin, 418 U.S. 264, 285-86, 94 S.Ct. 2770, 41 L.Ed.2d 745 (1974). At best, Phillips is quoted in the article as saying that he "felt threatened" and "that guy in the hat ... blocked my way." As in Roche, where an individual stated he "feels harassed by [the plaintiff] and wants no contact," here, Phillips' statement that he "felt threatened" is merely "a third party's subjective feelings" and that "would not tend to expose [Sandmann] to public hatred or to suggest his unfitness to work" and therefore "does not constitute libel per se." Roche, 197 F. App'x at 398-99.
Second, it is unreasonable to construe the article as meaning that Sandmann "engaged in racist conduct." (Doc. 1 ¶ 115). The article, at most, quotes Phillips, who stated that an individual in a hat "blocked" his path and "we were at an impasse." It is irrelevant that others may have attributed a derogatory meaning to this statement. There is nothing defamatory about being party to a stubborn "impasse." See Cline v. T.J. Samson Cmty. Hosp., No. 2014-CA-001856, 2016 WL 3226325, at *6 (Ky. Ct. App. June 3, 2016) (statement that an employee was "angry" and "agitated" is not defamatory).
As the Restatement and Kentucky law make clear: if individuals, "by an unreasonable construction" attach a "derogatory meaning," this "does not render the language defamatory." REST. 2d § 563 cmt. c. The law of defamation is not "a question of the existence of some individual or individuals with views sufficiently peculiar to regard as derogatory what the vast majority of persons regard as innocent." REST. 2d § 559 cmt. e. Instead, "[t]o be libelous per se the defamatory words must be of such a nature that courts can presume as a matter of law that they do tend to degrade or disgrace [the plaintiff], or hold him up to public hatred, contempt or scorn." Digest Publ'g Co., 284 S.W.2d at 834. The words in the article fall short of that mark.
Finally, the article does not state that Sandmann "engaged in racist taunts."
Even if false, attributing to an individual "membership in a political party in the United States that is a mainstream party and not at odds with the fundamental social order is not defamatory." Cox v. Hatch, 761 P.2d 556, 562 (Utah 1988) (citing PROSSER AND KEETON ON THE LAW OF TORTS, § 111 (5th ed. 1984); see also Shields v. Booles, 238 Ky. 673, 38 S.W.2d 677, 682-83 (1931) (rejecting a defamation lawsuit because it was not libelous per se "to state incorrectly how a representative had voted upon a particular measure," i.e., "in favor of legalized gambling").
The statements here, in the context of the whole article, are nothing like the words Kentucky courts have recognized as defamatory per se. See, e.g., Stringer, 151 S.W.3d at 792-93, 795 (written and oral statements that employees "had been fired for stealing" or "for an integrity issue"); Ball v. E.W. Scripps Co., 801 S.W.2d 684, 687-88 (Ky. 1990) (Commonwealth attorney accused of "turn[ing] [criminals] right back, and they commit crime after crime; they couldn't have a better friend"); McCall, 623 S.W.2d at 885 (finding it defamatory to accuse an attorney of "fix[ing] the cases" or "brib[ing] a judge"); Crabb, 182 S.W.3d at 547 (accusations that employee engaged in a "sexual liaison" with one of her co-workers and "misappropriated" funds); Shrout v. The TFE Group, 161 S.W.3d 351, 355-57 (Ky. Ct. App. 2005) (continuing to report false positive result of plaintiff's drug test); Columbia Sussex Corp., 627 S.W.2d at 272-73 (general manager's words which conveyed strong assertion that either hotel manager or one of her employees was involved in the hotel robbery); Cholmondelay, 569 S.W.2d at 701-02 (newspaper falsely stated that a minor had "pounded" another child's head "over and over again against the pavement" and "savagely beaten [him] into insensibility," thus describing the commission of a violent crime).
In sum, taking the "ordinary, natural meaning" of the words in the "four corners" of the article, and when "stripped of all innuendoes and explanations," Roche, 197 F. App'x at 398, the "gist or sting" of the article would not "tend to expose [Sandmann] to public hatred, ridicule, contempt or disgrace, or to induce an evil opinion of him in the minds of right-thinking people," Digest Publ'g Co., 284 S.W.2d at 834, or "impugn [Sandmann]'s competence, capacity, or fitness in the performance of his profession," Welch, 3 S.W.3d at 735.
Therefore, the First Article is not defamatory.
Articles Two and Three merely repeat the statements contained in Article One, with the exception that they add statement 18 — a quote from the joint statement released by Covington Catholic High School and the Diocese of Covington — and Article Three adds statement 22, a headline.
Statement 18, as set forth in the attached chart, does not mention Sandmann but speaks only of "students," and as such it is not actionable. See Sanders, 563 S.W.2d at 9. Further, the adjectives "jeering" and disrespectful" are subjective opinions, and the balance of the statement conveys only that the speakers are investigating the matter and will take "appropriate action, up to and including expulsion." Sandmann alleges that the statement coveys that he "violated the fundamental standards of his religious community and violated the policies of his school such that he should be expelled." (Compl. ¶ 120). But the statement, in fact, conveys the opposite: the speakers had reached no conclusion about what occurred and were investigating the matter. As noted with respect to Article One, Sandmann's allegation attempts to insert innuendo not found within the four corners of the publication.
Finally, statement 22 is the headline on the Third Article: "Marcher's accost by boys in MAGA caps draws ire." (Doc. 1-7 at 2). This headline does not identify Sandmann but refers only to "boys," which is nonactionable for the reasons already discussed.
Further, the headline "Marcher's accost by boys in MAGA caps draws ire" is laden with rhetorical hyperbole. See Clark, 617 F. App'x at 508. And the word "accost" has various meanings, including "To approach and speak to ... in a bold, hostile, or unwelcome manner; to waylay a person in this way; to address.... To draw near to or unto; to approach."
Finally, statement 22 carries no defamatory meaning for the reasons stated with respect to Article One.
These publications contain substantially the same statements as in Articles One through Three. The only notable differences in the statements are as follows:
In addition, Sandmann asserts that these publications convey the same defamatory gist alleged in connection with the First, Second, and Third Articles. Therefore, the same analysis as outlined above applies to Articles Four through Seven, as well as the Tweets.
Accordingly, Sandmann cannot maintain a claim based on any of the Post's publications, and the Court will dismiss the Complaint in its entirety.
As the Court explained at the oral argument on this motion, in modern libel law there are many affirmative defenses, even for claims based on defamatory statements. These defenses are calculated to protect defendants, especially the press, from strict liability.
The defense that a statement of opinion is not actionable protects freedom of speech and the press guaranteed by the First Amendment.
The Court accepts Sandmann's statement that, when he was standing motionless in the confrontation with Phillips, his intent was to calm the situation and not to impede or block anyone.
However, Phillips did not see it that way. He concluded that he was being "blocked" and not allowed to "retreat." He passed these conclusions on to The Post. They may have been erroneous, but, as discussed above, they are opinion protected by the First Amendment. And The Post is not liable for publishing these opinions, for the reasons discussed in this Opinion.
Therefore, having reviewed this matter carefully, and being fully advised,
Statement Compl. ¶Challenged Statement Basis for Dismissal No. 1. 118(a) Headline: "`It was getting ugly': Native Not "about" Sandmann (1st Article) American drummer speaks on the MAGA-hat wearing teens who surrounded him" "surrounded" and "ugly" are matters of opinion Not defamatory2. 118(b) "In an interview Saturday, Phillips, 64, Not "about" Sandmann 129(b) said he felt threatened by the teens and (1st & 3rd that they suddenly swarmed around him "felt threatened" and Article) as and [sic] other activists were wrapping "swarmed" are up the march and preparing to leave." subjective matters of opinion Not defamatory3. 118(c) "Phillips, who was singing the American Not "about" Sandmann 129(c) Indian Movement song of unity that serves (1st & 3rd as a ceremony to send the spirits home, What constitutes Article) said he noticed tensions beginning to "taunting" is a escalate when the teens and other subjective matter of apparent participants from the nearby opinion March for Life rally began taunting the dispersing indigenous crowd." Not defamatory4. 136(a) Headline: "`Opposed to the dignity of the Not "about Sandmann" (4th Article) human person': Kentucky Catholic diocese condemns teens who taunted vet at March What constitutes for Life" "taunting" is a subjective matter of opinion Not defamatory5. 136(b) "A viral video of a group of Kentucky teens Not "about" Sandmann (4th Article) in `Make America Great Again' hats taunting a Native American veteran on What constitutes Friday has heaped fuel on a long-running, "taunting" is a intense argument among abortion subjective matter of opponents as to whether the close opinion affiliation of many antiabortion leaders with President Trump since he took office Not defamatory has led to moral decay that harms the
movement." 6. 149(a) "The Israelites and students exchanged Not "about" Sandmann (6th Article) taunts, videos show. The Native Americans and Hebrew Israelites say What constitutes some students shouted, `Build the wall!' "taunting" is a although the chant is not heard on the subjective matter of widely circulated videos, and the opinion Cincinnati Enquirer quoted a student at the center of the confrontation who said he Not defamatory did not hear anyone say it."7. 156(a) The Israelites and students exchanged What constitutes (7th Article) taunts, videos show. The Native "taunting" is a Americans and Hebrew Israelites say subjective matter of some students shouted, `Build the wall!' opinion But the chant is not heard on the widely circulated videos, and the Cincinnati Not defamatory Enquirer quotes Nick Sandmann, the student at the center of the confrontation, saying he did not hear anyone utter the phrase."8. 118(d) "A few people in the March for Life crowd Not "about" Sandmann 129(d) began to chant `Build that wall, build that (1st & 3rd wall,' he [Phillips] said." Not defamatory Article) 141(b) "At one point, some reportedly chanted, (5th Article) "Build the wall!"9. 149(g) Jon Stegenga, a photojournalist who drove Not "about" Sandmann 156(j) to Washington on Friday from South (6th &7th Carolina to cover the Indigenous Peoples Not defamatory Article) March, recalled hearing students say `build the wall' and `Trump 2020.' He said it was about that time that Phillips intervened."10. 118(e) "`It was getting ugly, and I was thinking: Not "about" Sandmann 129(e) `I've got to find myself an exit out of this (1st , 2nd , 3rd situation and finish my song at the Lincoln What constitutes Article) Memorial,' Phillips recalled. `I started "ugly" and "blocked" going that way, and that guy in the hat are both subjective stood in my way and we were at an matters of opinion impasse. He just blocked my way and wouldn't allow me to retreat.'" Not defamatory
11. 136(c) "A few of the young people chanted `Build Not "about" Sandmann 131 that wall, build that wall,' the man said, (4th Article) adding that a teen, shown smirking at him What constitutes in the video, was blocking him from "smirking" and moving." "blocking" are matters of opinion Not defamatory12. 149(h) "Most of the students moved out of his What Phillips saw in 156(k) way, the video shows. But Sandmann Sandmann is a matter (6th & 7th stayed still. Asked why he [Phillips] felt of opinion Article) the need to walk into the group of students, Phillips said he was trying to Not defamatory for reach the top of the memorial, where Phillips to recite friends were standing. But Phillips also historical facts said he saw more than a teenage boy in front of him. He saw a long history of white oppression of Native Americans. `Why should I go around him?' he asked. `I'm just thinking of 500 years of genocide in this country, what your people have done. You don't even see me as a human being.'"13. 118(f) "`It clearly demonstrates the validity of our Not "about" Sandmann 129(f) concerns about the marginalization and (1st & 3rd disrespect of Indigenous peoples, and it What constitutes Article) shows that traditional knowledge is being "disrespect" and ignored by those who should listen most "ignor[ance]" are closely,' Darren Thompson, an organizer matters of personal for the group [the Indigenous Peoples opinion Movement], said in the statement." Not defamatory14. 141(c) "It's clear from Friday's incident on the Not "about" Sandmann (5th Article) Mall that the young men who confronted the Native American protester had What constitutes somehow internalized that their behavior "confront[ing]" and was acceptable. It's hard to read from that "internalized" are one scenario how they look at issues of race subjective matters of more broadly. But if part of the incident on opinion the Mall reflected opposition to diversity, those views would he in the minority." Not defamatory15. 118(g) "Chase Iron Eyes, an attorney with the Not "about" Sandmann 129(h) Lakota People Law Project, said the (1st & 3rd incident lasted about 10 minutes and Not defamatory Article) ended when Phillips and other activists
walked away." 16. 118(h) "`It was an aggressive display of Not "about" Sandmann 129(i) physicality. They were rambunctious and (1st & 3rd trying to instigate a conflict,' he [Chase What constitutes Article) Iron Eyes] said. `We were wondering "aggressive," where their chaperones were. [Phillips] "physicality," and was really trying to defuse the situation.'" "rambunctious" are (second alteration in original). subjective matters of opinion Not defamatory17. 118(i) "Phillips, an Omaha tribe elder who also Not "about" Sandmann (1st Article) fought in the Vietnam war, has encountered anti-Native American What constitutes an sentiments before:...." "anti-Native American sentiment" is in the "[Phillips] has encountered anti-Native eye of the beholder 129(j) American sentiment before:...." (3rd Article) Not defamatory18. 121(a) "`We [CovCath school officials and the Not "about" Sandmann (2nd Article) Diocese of Covington] condemn the actions of the Covington Catholic High School Opinion students towards Nathan Phillips specifically, and Native Americans in What constitutes general,' the statement said. `The matter is "jeering" and being investigated and we will take "disrespectful" are appropriate action, up to and including subjective matters of expulsion.' .... The diocese's statement opinion expressed regret that jeering, disrespectful students from a Catholic school had become the enduring image of the march." 129(g) (same, except that the last sentence was (3rd Article) omitted in the 3rd Article)19. 136(d) "`We condemn the actions of the Covington Not "about" Sandmann (4th Article) Catholic high school students towards Nathan Phillips specifically, and Native Opinion Americans in general,' a statement by the Roman Catholic Diocese of Covington and Covington Catholic High School read. `We Not defamatory extend our deepest apologies to Mr. Phillips. This behavior is opposed to the Church's teachings on the dignity and
respect of the human person. The matter is being investigated and we will take appropriate action, up to and including expulsion. We know this incident also has tainted the entire witness of the March for Life and express our sincere apologies to all those who attended the March and those who support the pro-life movement.'" 20. 149(j) "School officials and the Catholic Diocese Opinion 156(m) of Covington released a joint statement (6th & 7th Saturday condemning and apologizing for Not defamatory Article) the students' actions. `The matter is being investigated and we will take appropriate action, up to and including expulsion,' the statement said."21. 156(c) "The Kentucky teens' church apologized on Opinion (7th Article) Saturday, condemning the students' actions." Not defamatory22. 129(a) Headline: "Marcher's accost by boys in Not "about" Sandmann (3rd Article) MAGA caps draws ire." "accost" has many meanings and is a matter of subjective opinion Not defamatory23. 141(a) "Friday's incident near the Lincoln Not "about" Sandmann (5th Article) Memorial in which a group of high school boys confronted an elderly Native "Rhetoric" or American man sent a ripple of fear and "hyperbole" anger across the country. The image of a group of high school boys clad in `Make What constitutes America Great Again' hats, smirking and "smirking" and what it laughing as one of their members means to "physically appeared to physically intimidate Nathan intimidate" another, Phillips resurfaced tensions that have are both matters of been simmering since President Trump's opinion campaign began." Not defamatory24. 149(b) "When I took that drum and hit that first Phillip's opinion of the 156(d) beat ... it was a supplication to God," said nation's status (6th & 7th Nathan Phillips, a member of the Omaha Article) tribe and a Marine veteran. `Look at us, Labeling someone a
God, look at what is going on here; my racist is a matter of America is being torn apart by racism, opinion hatred, bigotry.'" (ellipsis in original) 25. 149(c) "While the groups argued, some students What constitutes 156(e)-(f) laughed and mocked them, according to "mock[ing]" is (6th & 7th Banyamyan and another Hebrew Banyamyan's Article) Israelite, Ephraim Israel, who came from subjective opinion New York for the event. As tension grew, the Hebrew Israelites started insulting the Not defamatory students.... `They were sitting there, mocking me as I was trying to teach my brothers, so yes the attention turned to them,' Israel told The Washington Post."26. 149(d) "Phillips said he and his fellow Native What constitutes 156(g) American activists also had issues with "issues" is a matter of (6th & 7th the students throughout the day. `Before opinion Article) they got centered on the black Israelites, they would walk through and say things to Not defamatory each other, like, `Oh, the Indians in my state are drunks or thieves,' the 64-year-old said."27. 149(e) "Phillips said he heard students shout, `Go Not "about" Sandmann 156(g) back to Africa!'" (6th & 7th Not defamatory Article)28. 149(f) "`They were mocking my ancestors in a What constitutes 156(i) chant, one of them was jumping up and "mocking" is a matter (6th & 7th down like a cave man,' he [Banyaman] of personal opinion Article) said." Statement is hyperbole Not defamatory29. 149(i) "Stegenga described Phillips as emotional. What constitutes 156(l) `He [Phillips] was dealing with a lot of "respect" and being (6th & 7th feelings, as he was being surrounded and "surrounded" are Article) not being shown respect,' the matters of opinion photographer [Stegenga] said." Not defamatory30. 156(b) "When a Native American elder What constitutes (7th Article) intervened, singing and playing a prayer "mimic[king]" and song, scores of students around him seem "mock[ing]" are to mimic and mock him, a video posted matters of subjective Monday shows." opinion and rhetorical hyperbole
Not defamatory 31. 158(a) "In an interview with The Post, Omaha Not "about" Sandmann (Tweet) Tribe elder Nathan Phillips says he `felt like the spirit was talking through me' as What constitutes teens jeered and mocked him." "jeer[ing]" and "mock[ing] are subjective matters of opinion Not defamatory32. 158(b) "He was singing the American Indian Not "about" Sandmann (Tweet) Movement song of unity that serves as a ceremony to send the spirits home. `It was What constitutes getting ugly, and I was thinking: `I've got "ugly" is a matter of to find myself an exit out of this situation opinion and finish my song at the Lincoln Memorial.'" Not defamatory33. 158(c) "Phillips, who fought in the Vietnam War, Not "about" Sandmann (Tweet) says in an interview `I started going that way, and that guy in the hat stood in my What constitutes way and we were at an impasse. He just "block[ing]" is a matter blocked my way and wouldn't allow me to of opinion retreat.'" Not defamatory
"Special damages are those beyond mere embarrassment which support actual economic loss; general damages relate to humiliation, mental anguish, etc." Columbia Sussex Corp., Inc. v. Hay, 627 S.W.2d 270, 274 (Ky. Ct. App. 1981) (emphasis added).
Here, "there is no allegation of special damages, and [so] unless the publication may be considered as actionable per se," the Court must dismiss the action. Hill, 258 S.W.2d at 918; Dermody, 530 S.W.3d at 475); Bell v. Courier-Journal & Louisville Times Co., 402 S.W.2d 84, 86 (Ky. 1966).
