I'm running out the door to meet a friend for cocktails and dinner, so no time right now to elaborate (sorry! It's been a busy couple of weeks for me), but another thing I don't think fast-talking lawyer quite gets about an American motion to dismiss:
Although yes, a motion to dismiss takes place before discovery, evidence that is in public records or that is attached to the complaint and is central to the claim CAN be considered. The court doesn't have to assume stuff is true that is proven untrue in such documents. E.g., Sandmann characterized some of the things the Post said, but the Post articles themselves didn't bear it out. I get the impression fast-talking guy thinks it was totes unfair that the judge considered such evidence but then dismissed the case without out more discovery, but in fact it was not improper at all.
Cass, if I’m being honest it’s very unfair that you don’t have the time to give us a detailed explanation with pictures and sock puppets. Perhaps if you didn’t take so long to do other things. Might I suggest freebasing 53 Red Bulls, chasing it down with a few expressos, and maybe taking a hit of speed. Eat a pepper and grab a dog too if it might help.*
And it brings me to another general point -- fast-talking guy seems to think it's legal error to say that a statement of opinion can't be defamatory. It's not. It's well-established in American law. He seems certain that this is a wrong statement on the law by the district court that will be overturned on appeal. And yeah, I'm pretty confident that it will not.
Again he pounds the table on how the problem is that the Sandmann kid didn't have his "day in court". As I've already said in my previous comments, fast-talking guy doesn't seem to grok how an American 12(b)(6) motion works (perhaps it isn't a thing in Canada).
But if we take aside the mechanics of a 12(b)(6) motion for a minute -- what additional evidence does fast-talking guy think would make a difference here? Already before the court was the public record (the newspaper statements in question, plus videos of the incident) and the stuff the kid's lawyers attached to the complaint. The alleged defamatory statements were all there to be considered, and there's an upfront question of whether, as a matter of law, they are defamatory under Kentucky law -- whether they can meet all the elements as those elements have been interpreted by established precedent. And they can't. Evidence that, e.g., people on social media were mean to the kid won't change that. Really, it won't, as a matter of law.
One reason we have 12(b)(6) motions is to avoid the (very considerable) expense and time involved with discovery. Many plaintiffs hope to get past that point because they know big entities like the Post will pay out a settlement to avoid the expense and hassle of litigation, even if there is no wrongdoing on their part. (Indeed, some plaintiffs bring lawsuits not with the belief they can ultimately prevail in court, but in the belief they can might get past the motion to dismiss and strong-arm the defendant into a settlement.) And courts have a lot on their plates -- taking the hassle and expense to defendants aside, there's no point in the court investing all that time when, even if the allegations are true, they wouldn't allow the plaintiff to recover. That's why American courts up front will consider "look, do this plaintiff's statements on their face, if they were all true and evidence proved them correct, amount to a violation of the law they allege was violated"? Here, the answer was "no," because whatever additional evidence the kid might bring forward, those statements didn't amount to defamation under Kentucky law. And if documents in the public record or attached to the complaint show that the plaintiff incorrectly stated something or that some element can't be met, the court doesn't need to engage in the fiction that those documents don't exist -- it can consider them. The statements by the Post are what they are -- either they meet the legal standards for a defamation action or they do not. They do not.
And that's why it was dismissed with prejudice (meaning the kid can't refile his suit). No matter what, these statements cannot meet the legal definition of defamation under Kentucky law.
If you google, I think you'll be hard-pressed to find American legal experts saying that this decision was wrongly decided. (I did such a google search, out of curiosity, and all I find protesting the decision are right-wing non-lawyer partisans.) I myself would put money on it standing up on appeal, for whatever that's worth to you. We'll see, obviously.
What I've done so far is easy enough for me to do -- to generally explain what fast-talking guy has wrong from 50 thousand feet, after a single viewing of his videos. As I said, breaking down the videos point-by-point requires me to watch again, stopping and starting to get the parameters of each of his individual points and compare them to the court's decision and with both 12(b)(6) motion standards and Kentucky defamation law. That will take hours! That being the case, I can't guarantee I'll get to it any time soon. But if you have some specific statement that fast-talking guy made that you think was really convincing, bring it forward and I'll address it.
Last Edit: Aug 2, 2019 9:39:38 GMT -5 by CassandraW
I'll add this general observation -- I know some of you find this kid more sympathetic than I do. But if you value free speech, you should want it to be difficult to prevail on a defamation action.
Taking this case aside, there's all kind of speech I deplore but don't want to be legally actionable. I have a hunch that as a general matter, most of you are with me on that point.
And ZOMG, in fast-talking guy's second video, his bringing up the judge's age, bringing up some anecdote about a family judge he dealt with once to imply (if not quite say) that the judge in the Sandmann case was perhaps inexperienced in defamation law, and his throwing in that the guy was appointed by Carter --ugh, no:
1) I'm really tired of ageist crap. There is absolutely zero reason to believe this judge is impaired or otherwise not up to snuff. Read his 36 page opinion. He ain't impaired. But take that aside.
2) This judge does in fact have experience with defamation cases.
3) The fact that he was appointed by Carter is not quite the slam-dunk partisan gotcha point people think it is, especially not at the district court level. Take aside the fact that good judges don't make rulings on a purely partisan basis (you see how Gorsuch sometimes sides with the "liberal" judges?) At the district court level, whether a states reps in the Senate are Democrat or Republican is a factor -- the Senators and president make some sausage on nominees. A dear friend of mine, a moderate Democrat, was nominated by Trump and currently has her nomination pending before the Senate. Would she be nominated for a district court judgeship in a red state? Likely not. But she's in New York. She got through her hearing and she's probably going to be confirmed. Later probably some idiots who don't get how this works will yell "SHE WAS NOMINATED BY TRUMP SO SHE MUST BE ALT-RIGHT." And no. were she a liberal firebrand, she wouldn't have been nominated, but she's no Trumpy conservative. MOST of the judges Trump nominated are pretty conservative, some are ill-qualifyed extremist hacks, none are raving libs. But it is wrong to assume that all nominees by a president (even this one) are crooked unfair partisans. It helps to have some understanding of how this process works in the U.S.
Fast-talking guy seems smart, but he may or may not understand that. (Or, um, he may be playing a bit to a partisan audience who won't understand that, just saying.) This judge is in Kentucky, which has been Republican since before the Carter years. The odds he's a liberal firebrand are slim, whoever appointed him.
Last Edit: Aug 2, 2019 10:50:26 GMT -5 by CassandraW
A federal judge has reopened the $250 million defamation case filed by a Covington Catholic High School student against The Washington Post.
The lawsuit was thrown out in July.
The lawsuit can move forward but the focus is much more specific. In the lawsuit, Nick Sandmann accuses The Washington Post of libel, saying stories written about the January incident in Washington, D.C., shed a negative light on him, which led to him being disgraced on social media.
Attorneys Lin Wood and Todd McMurtry filed the lawsuit on behalf of Sandmann and his family. It was the first in a series of lawsuits filed against several media outlets.
The lawsuit claims that the Post "wrongfully targeted and bullied Nicholas because he was the white, Catholic student wearing a red 'Make America Great Again' souvenir cap on a school field trip to the January 18 March for Life in Washington, D.C."
Bertelsman said in the order that he stands by his decision that 30 of the 33 statements Sandmann's lawyers argued were libelous were not, but that "justice requires" further review of three of the statements.
"These three statements state that (Sandmann) 'blocked' Nathan Phillips and 'would not allow him to retreat,'" the order reads.
Bertelsman said the amended complaint also argues that Phillips "deliberately lied" and "had an unsavory reputation." The new complaint also states the Washington Post should have known about Phillips due to the previous coverage of him.
So discovery will proceed...
Honestly, I think it would be better if it was all dropped. I don't think Sandmann or others will be well-served by this going forward, even of they were to somehow win a judgment (unlikely, imo).
I don't see massive settlements in his future. I think that for the newspapers, a front page story about how they'd gotten the original story wrong would have been the way to go at the start. Unfortunately for Nick, nothing will ever convince some people that he didn't block Phillips, that he wasn't a smug teen who started the entire thing, as opposed to a teen who had some guy start beating a drum in his face and stood there refusing to back down with a smug smile.
I think he'd have better luck against Kathy Griffin who wanted to dox them. You'd think we'd seen this song and dance enough times for people to not jump on the bandwagon of "This person should be destroyed" until all the facts are in.
CNN has reached a settlement agreement with Nick Sandmann, the Covington Catholic High School student who was wrongly portrayed in the media as having racially harassed toward a Native American man on the steps of the Lincoln Memorial in 2019.
The incident was caught on video and widely circulated. The media's collective condemnation of Sandmann and his classmates was deafening, but subsequent video footage showed that the Native American man, Nathan Phillips, had misrepresented the situation in his public statements to news outlets. Reason was among the first to criticize the media's rush to judgment.
Sandmann has sued CNN, The Washington Post, and NBC Universal for $800 million, and his lawyers have promised that additional suits are forthcoming. They had asked for $250 million from CNN: The amount of the settlement was not disclosed.
As usual, these lawsuits that settle will probably include a nondisclosure order. It would be nice if part of the settlement included CNN actually acknowledging that what they got wrong and how going forward, they'll be more careful before tarnishing a teenagers reputation without proof.
I'm curious if anyone here wants to take a guess as to the other orgs sued settling or taking it to court. '
My guess right now, they'll settle. Once the lawsuit was allowed to proceed to discovery, the corps involved probably realized as bad as they were on air, or in print, there was probably worse stuff in internal communications. Someone saying, 'hey, new video is out, should be acknowledge that we've branded a kid a racist while he was being attacked verbally by one group, and while Philips decided to bang a drum in his face, or just double down on the lie." I could be wrong.