A panel of three federal judges in Cincinnati affirmed a lower court’s dismissal last year of defamation lawsuits by former Covington Catholic High School student Nicholas Sandmann against five national media outlets, including The Enquirer’s owner, Gannett Co.
Sandmann, who according to his social media accounts now attends Transylvania University in Lexington, pursued multiple lawsuits against media outlets over reporting about a viral video, which showed a Jan. 18, 2019, encounter in Washington, D.C., involving then-16-year-old Sandmann and a Native American man, Nathan Phillips.
A 2-1 decision Wednesday by the U.S. Sixth Circuit Court of Appeals in Cincinnati supported the July 2022 ruling of a federal district court judge in Kentucky, who said the media outlets – Gannett, The New York Times, Rolling Stone magazine, ABC News and CBS News – reported statements by Phillips that were “objectively unverifiable” and thus constitutionally protected opinions.
The district judge found that “in the factual context of this case, Phillips’s ‘blocking’ statements are protected opinions.” Sandmann appealed.
U.S. Circuit Judges Jane Branstetter Stranch and Stephanie Dawkins Davis, respectively appointed to the appellate court by Barack Obama and Joe Biden, formed the majority, and Stranch penned the opinion rejecting that appeal.
The appellate majority agreed with Bertelsman’s analysis that Phillips’ “blocking” statements to the Washington Post, which were repeated by The New York Times, CBS News, ABC News, and Gannett publications, are “nonactionable” opinion:
“The opinion-versus-fact inquiry thus typically involves two steps under Kentucky law. First, the court determines whether a statement is fact or opinion. If the statement is factual, the analysis ends there; the statement is considered capable of defamatory meaning. But if the statement is one of opinion, the court then determines whether that opinion is based on undisclosed defamatory facts. If so, the statement is capable of defamatory meaning; if not, it is protected opinion. Here, the district court held that the blocking statements “did not imply the existence of any nondisclosed defamatory facts,” and Sandmann does not challenge that aspect of its holding. So, if the blocking statements are opinion, they are protected by the Constitution and by Kentucky law.”
