Some excerpts from Sandmann v. N.Y. Times Co., decided yesterday by the Sixth Circuit, in an opinion by Judge Jane Stranch, joined by Judge Stephanie Davis (for more details, read the full opinions):
On January 18, 2019, then-sixteen-year-old Nicholas Sandmann and his classmates had an interaction with a Native American man named Nathan Phillips by the Lincoln Memorial in Washington, D.C. Video of the incident went viral, and national news organizations, including the five Defendants (Appellees, or News Organizations) published stories about the day's events and the ensuing public reaction. Sandmann sued, alleging that the Appellees' reporting, which included statements from Phillips about the encounter, was defamatory…. [We agree with the district court that] the challenged statements were opinion, not fact, and therefore nonactionable….
Videos of the confrontation between a white male teenager in a "Make America Great Again" hat and an elderly Native American man went viral on social media. National media, including the five News Organizations, covered the incident at length over the following days, with most outlets quoting a statement Phillips made to the Washington Post:
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. 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.
This statement and others like it asserting that Sandmann blocked Phillips are referred to as "blocking statements." …
"Whether a statement qualifies for protection under the constitutional pure opinion privilege is a legal question to be decided by the court, not a question for the jury." … The First Amendment protects statements that "cannot reasonably be interpreted as stating actual facts about an individual" in "recognition of the Amendment's vital guarantee of free and uninhibited discussion of public issues." In other words, "a viable defamation claim exists only where a reasonable factfinder could conclude that the challenged statement connotes actual, objectively verifiable facts."
