Student Who Accosted Native Americans Outside of Lincoln Memorial Loses His Defamation Suit

Steven T. Lowe

President Lincoln Memorial in Washington DC at night

On January 18, 2019, Nathan Phillips and a few Native Americans took to the steps of the Lincoln Memorial in Kentucky, where they encountered a crowd of students, including the Plaintiff, Nicholas Sandmann. Phillips felt that Sandmann was “blocking [him] from exiting the situation” and “intentionally stood in [Phillips’] way in order to stop [him] from moving forward.” Media outlets reiterated Phillips’ view of the situation and then, Sandmann brought suit against The Washington Post, CNN, NBC Universal, ABC News Inc, CBS News, NY Times, Gannet Co., and Rolling Stone LLC for defamation in a highly publicized lawsuit filed on February 19, 2019. Sandmann made the claim that the media coverage falsely portrayed him and his buddies as aggressors and thus defamed them.

In April 2019, The Washington Post filed a motion to dismiss, which was granted, but Sandmann then filed a “motion for reconsideration” and a “motion for leave to amend” his complaint. Those motions were granted by the Court on October 28, 2019, but the case was distilled by the Court to Phillip’s statements that Sandmann “blocked” Phillips and “would not allow him to retreat.”

Between July 2020 and December 2021, multiple parties settled with Sandmann, including CNN, The Washington Post, and NBC. The remaining defendants engaged in “discovery,” and on December 20, 2021, ABC News, CBS News, The New York Times, and Rolling Stone Magazine filed motions for summary judgment. A motion for summary judgment is a procedure whereby a party asks the Court to decide the case in their favor before trial. The Court is empowered to do this where there is “no genuine issue of material fact.” A genuine issue of material fact is a factual scenario about which “reasonable minds can differ.” A material fact is a fact that is important to the case. In order to defeat the motion for summary judgment, Sandmann needed to show that reasonable minds could differ as to what took place on January 18, 2019, at the Lincoln Memorial, such that he should be permitted to go to trial to prove that Phillips was lying.

First, the Court had to decide whether the statement by Phillips was a statement of “opinion” or of a “fact.” If a defamatory statement is an “opinion,” it generally cannot be the basis of a defamation claim. This is due to the tension between freedom of speech and freedom from injury to reputation. Thus Courts are forced to distinguish between constitutionally protected opinions and false statements of fact.

On June 26, 2022, the Court concluded that Phillip’s statements that Sandmann “blocked” him and “wouldn’t allow [him] to retreat” are not objectively verifiable facts and therefore were opinions. 

The Court based its conclusion that the statement was a non-defamatory opinion on the fact that the term “blocking” is too vague a term to be subject to objective verification. Based on statements made by both Sandmann and Phillips about what happened, the Court concluded the blocking statement could not actually be proven to be true or false.

The Court also took into consideration that Phillips’s statements assumed both Phillips’ and Sandmann’s state of mind. It is undisputed that Sandmann was standing in front of Phillips and made no attempt to move out of his way. Under those circumstances, Phillips might believe that he was “blocked.” The court found that “someone’s state of mind is not capable of being proven true or false.” Therefore, Phillip’s statement could not be shown to be objectively false.

The court also found the writing style important in determining what an average reader would understand the statements to mean. In considering this, the Court noted that the media defendants reported Phillip’s view of what he experienced in quotations. This would be enough to put a reasonable reader on notice that the statements were Phillip’s view of the incident.

The Court granted the defendants’ joint motions for summary judgment, at which point all the remaining defendants who did not settle won the case, defeating Sandmann’s lawsuit.

Sandmann is represented by Todd V. McMurtry, Jeffrey A. Standen, and J. Will Huber of Hemmer DeFrank Wessels PLLC.

The New York Times is represented by J. Stephen Smith, Darren W. Ford, and John C. Greiner of Graydon Head & Ritchey LLP.

ABC News is represented by Robert B. Craig of Taft Stettinius & Hollister LLP and Nathan Siegel and Meenakshi Krishnan of Davis Wright Tremaine LLP.

CBS News is represented by Natalie J. Spears and Gregory R. Naron of Dentons US LLP and Jared A. Cox and Jessica Laurin Meek of Dentons Bingham Greenebaum LLP.

Rolling Stone is represented by Kevin T. Shook, Theresa A. Canaday, Samuel W. Wardle, Michael E. Nitardy and Ryan W. Goellner of Frost Brown Todd LLC.

Gannett is represented by Jon L. Fleischaker and Michael P. Abate of Kaplan Johnson Abate & Bird LLP and Michael J. Grygiel, Cynthia E. Neidl, Kelly L. McNamee, and Candra M. Connelly of Greenberg Traurig LLP.

The cases are Sandmann vs. The New York Times Co., case number 2:20-cv-00023; Sandmann v. ABC News Inc. et al., case number 2:20-cv-00025; Sandmann v. CBS News Inc. et al., case number 2:20-cv-00024; Sandmann v. Gannett Co. Inc., case number 2:20-cv-00026; and Sandmann v. Rolling Stone LLC et al., case number 2:20-cv-00027, all in the U.S. District Court for the Eastern District of Kentucky.

* Lowe & Associates (“The Firm”) is an entertainment and business law firm located in Beverly Hills, California. The firm has extensive experience handling cases involving defamation, having provided top-quality legal services to its clients since 1991. The Firm is recognized for its many achievements, including successfully litigating many high-profile cases.

Find us at our website at www.LoweLaw.com.