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From Sandmann v. N.Y. Times, CBS News, ABC News, Gannett & Rolling Stone, decided yesterday by Judge William Bertelsman (E.D. Ky.):

These five libel cases arise out of events that occurred in Washington, D.C. on January 18, 2019 and the ensuing extensive media coverage of plaintiff Nicholas Sandmann’s encounter with Nathan Phillips. [Factual details quoted below. -EV] …

All parties agree that whether “a statement is fact or opinion is a question of law for the court to decide.” … “[A] statement of opinion relating to matters of public concern which does not contain a provably false factual connotation will receive full constitutional protection.” …

The Sixth Circuit has also emphasized that it is important for the court to consider what a reasonable reader would take away from allegedly defamatory statements. A recent Sixth Circuit case, Croce v. Sanders (6th Cir. 2021), illustrates this principle well. The case involved a biologist who contacted the New York Times and other newspapers about statistical inaccuracies in scientific articles authored by a celebrated cancer researcher. The cancer researcher sued the biologist for defamation. The Sixth Circuit held that his statement that the researcher “knowingly engag[ed] in scientific misconduct and fraud” was protected opinion.

Judge Thapar, who authored the opinion, focused on what a reasonable reader would take away from the letter that the biologist wrote. He concluded that “reasonable readers would see there is ample room for a different interpretation of the evidence [the biologist] presented.” He further explained that “whether a set of facts amounts to misconduct” is subjective and “we would expect people to have different opinions on the question.” The biologist’s statement was “neither an assertion of fact nor a conclusion that follows incontrovertibly from asserted facts as a matter of logic. It is instead a subjective take that is up for debate.” See also Seaton v. TripAdvisor (6th Cir. 2013) (“Readers would, instead, understand the list [of dirtiest hotels in America] to be communicating subjective opinions of travelers who use Trip Advisor.”); Macineirghe v. Cty. of Suffolk (E.D.N.Y. 2015) (finding that a statement from an eyewitness who recounted the entirety of a police chase and said that he saw someone “block” a police car was opinion, and a reasonable reader would not understand his words to imply undisclosed facts)….

In sum, the Court must ask whether a reasonable reader, in reading the entire article, would understand that the statement in question is someone’s opinion or interpretation of an event or situation. See, e.g., Partington v. Bugliosi (9th Cir. 1995) (“When an author outlines the facts available to him, thus making it clear that the challenged statements represent his own interpretation of those facts and leaving the reader free to draw his own conclusions, those statements are generally protected by the First Amendment.”); Hayes v. Alfred A. Knopf, Inc. (7th Cir. 1993) (“If it is plain that the speaker is expressing a subjective view, an interpretation, a theory, conjecture, or surmise, rather than claiming to be in possession of objectively verifiable facts, the statement is not actionable); Phantom Touring, Inc. v. Affiliated Publ’ns (1st Cir. 1992) (“The sum effect of the format, tone, and entire content of the articles is to make it unmistakably clear that [the author] was expressing a point of view only.”).

Finally, if an allegedly defamatory statement is a statement of opinion, it is actionable under Kentucky law “only if it implies the allegation of undisclosed defamatory facts.” …

The allegedly defamatory Blocking Statements at issue are the following:

[“]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,'[“] Mr. Phillips told the Post. [“]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.[“]

Applying the above legal authorities, and with the benefit of a more developed record, the Court concludes that Phillips’s statements that Sandmann “blocked” him and “wouldn’t allow [him] to retreat” are objectively unverifiable and thus unactionable opinions.

Instead, a reasonable reader would understand that Phillips was simply conveying his view of the situation. And because the reader knew from the articles that this encounter occurred at the foot of the Lincoln Memorial, he or she would know that the confrontation occurred in an expansive area such that it would be difficult to know what might constitute “blocking” another person in that setting.

Generally, “blocking” is an imprecise term capable of different meanings that “lacks a plausible method of verification.” In particular, because of the context in which this encounter occurred—the large, open area adjacent to the Lincoln Memorial—the blocking statement simply cannot be proven to be either true or false. Had such an encounter occurred in a small or confined area, a statement that one person was “blocked” by another might be objectively verifiable. But it is not here.

Interestingly, plaintiff’s responsive memorandum to the joint motion for summary judgment argues that “blocking” is factual because “it involves the oppositional position of two human bodies in a confined space.” But, as the videos depict, the area where this encounter occurred was a huge, outdoor setting, not a confined space.

Further, Phillips’s statements rely on assumptions concerning both Phillips and Sandmanns’ state of mind. Yet, Phillips had no way of knowing what Sandmann was thinking or intended when he made the challenged statements. It is undisputed that Phillips and Sandmann did not speak to each other during their standoff. Thus, Sandmann had no way of knowing that Phillips was trying to pass him to get to the Lincoln Memorial. Likewise, Phillips had no way to confirm his belief that Sandmann intended to block him and would not allow him to retreat.

It has long been established that someone’s state of mind is not capable of being proven true or false. Compare Riley v. Harr (1st Cir. 2002) (“An author who fairly describes the general events involved and offers his personal perspective about some of the ambiguities and disputed facts should not be subject to a defamation action.”) and Haynes (“Anyone is entitled to speculate on a person’s motives from the known facts of his behavior.”) with Milkovich v. Lorain Journal Co. (1990) (explaining that perjury is verifiable by comparing the witness’s testimony at a board hearing and subsequently in court).

Sandmann’s own deposition testimony illustrates the unverifiability of someone’s state of mind. Sandmann was asked whether it was possible “that Phillips was trying to see if you guys [Sandmann and his friend, Cameron] would both move to create a path for him to go towards what would now be where you are standing?” This of course required Sandmann to speculate and prompted him to answer “It’s possible he was thinking that. Again, he never made that clear.” He was then asked if this was because “he [Phillips] didn’t articulate it?” To which he responded “Correct.” Phillips’s intent in that moment is not objectively verifiable, the same way Sandmann’s intent in that moment is not objectively verifiable. The Court must look at the meaning of the statements when they were made, without reference to post hoc explanations.

Courts have also found important the style of writing and its context in assessing what a reasonable reader would understand the allegedly defamatory statements to mean.

For example, in McCabe v. Rattiner (1st Cir. 1987), the owner of a time share condominium development sued a reporter who published an article in a local paper describing his encounter with the business, referring to it as a “scam.” After reviewing Supreme Court libel precedent, the Court first noted that the word “scam” does not have a precise meaning but means different things to different people.  The Court further observed that first-person, narrative style statements on matters of public concern “put[] the reader on notice that the author is giving his views” and “are commonly understood to be attempts to influence the public debate.”

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

Moreover, Phillips’s statement did not imply the existence of any nondisclosed defamatory facts, and only under such circumstances does a statement of opinion lose its constitutional protection. Therefore, in the factual context of this case, Phillips’s “blocking” statements are protected opinions….

The Court allowed these cases to proceed to discovery based on the allegations of plaintiff’s complaints and a belief that some development of the context of this incident may be helpful. The parties shrewdly agreed to phased discovery allowing the above legal issues to be revisited by the Court before the parties embarked on further expensive and time-consuming discovery and possibly trials, all of which would be wasted should the United States Court of Appeals for the Sixth Circuit agree with this Opinion….

Here’s the court’s discussion of the underlying incident:

Although lengthy, Sandmann’s deposition contains relatively little testimony pertinent to the issues at hand:

  • Sandmann observed as Phillips moved toward and then through the group of students. Some students moved out of Phillips’s way as he walked forward. Sandmann felt that Phillips was trying to intimidate the students by walking right up to them when he could have taken several other routes around them, so Sandmann felt like he wanted to stand up for his school. At the time, he did not know that Phillips’s intent was to get up to the Lincoln Memorial;
  • Phillips stood so close to Sandmann that his drum touched Sandmann’s shoulder, his spit was getting on Sandmann’s face, and Sandmann could smell Phillips’s breath;
  • The steps were icy and Sandmann was concerned that if he moved he might slip and fall.
  • Sandmann felt he was being mature by remaining calm and standing his ground in a tense situation;
  • Sandmann can see how Phillips might have perceived that Sandmann was trying to block his path;
  • There was room for Phillips to keep walking if that is what he wanted to do. Sandmann did not feel that he was blocking Phillips because Phillips gave no indication that he wanted to move forward. Instead, he locked eyes with Sandmann when he was still several feet away from him and then “planted” himself directly in front of Sandmann. Phillips did not take even the slightest step in any direction in an attempt to move;
  • Sandmann is not sure if he moved a little to the left as Phillips approached; he either adjusted his footing and/or the people around him shifted as well;
  • At one point, Sandmann felt that he was blocked from moving because of the crowd around him, although he has no reason to believe that they would not have moved if he had asked them to do so….

Phillips’s declaration, submitted by defendants in support of their joint motion for summary judgment, avers:

  • Other than a woman named Ashley Bell, Phillips did not know any of the individuals who joined him in walking towards the group of students;
  • As he approached the students, Phillips “felt that the crowd was swarming and surrounding me;”
  • As Phillips began to move towards the Lincoln Memorial, students moved out of his way. However, Sandmann “appeared” to position himself in front of Phillips;
  • Phillips declares: “It was very much my experience that Mr. Sandmann was blocking me from exiting the situation. It was very much my experience that he intentionally stood in my way in order to stop me from moving forward;”
  • Further: “I felt surrounded in that space, and I believed Mr. Sandmann did not want to let me pass. It seemed to me that Mr. Sandmann felt that he needed to stand there and block my way.” …

The parties have submitted twenty videos that capture scenes from the National Mall on the day in question…. In the Court’s view, six of the videos show the specific encounter between Sandmann and Phillips in helpful respects. What a viewer might conclude from these videos is a matter of perspective. However, what is clearly shown and not subject to reasonable dispute is at least the following:

  • Phillips began drumming and approaching the group of students, accompanied by several individuals who testify that, although they did not know Phillips, they followed him because he was an elder;
  • As Phillips came close to the group of students, some began to part, and Phillips continued to move forward. Eventually, Phillips came to a stop directly in front of Sandmann. As Phillips approached, Sandmann subtly adjusted his footing, but it is unclear if he actually moved from where he stood.
  • At no point did Phillips ask Sandmann to move or attempt to continue walking past him.
  • Sandmann also did not change his position while Phillips played his drum, although it was within inches of Sandmann’s face.
  • The encounter ended when a chaperone arrived and told the students that their buses had arrived.

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