Case: Doc 47 Filed: 07/26/19 Page: 1 of 36 - Page 444 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF KENTUCKY NORTHERN DIVISION AT COVINGTON CIVIL ACTION NO. 2:19-00019 (WOB-CJS) NICHOLAS SANDMANN PLAINTIFF VS. OPINION AND ORDER WP COMPANY LLC, d/b/a THE WASHINGTON POST DEFENDANT This is a defamation action arising out of events that occurred in our nation?s capital on January 19, 2019, among various groups who were exercising their rights to free assembly and speech. In this age of social media, the events quickly became the subject of posts, squares, tweets, online videos, and - pertinent here w~ statements published by major media outlets. As a result, plaintiff Nicholas Sandmann (?Sandmann?) found himself thrust into the national spotlight. He has filed suit against defendant WP Company LLC d/b/a The Washington Post (?The Post?), alleging that The Post negligently published false statements about him that were defamatory in relation to the events in question.1 This case is currently before the Court on The Post?s motion to dismiss Sandmann?s complaint on several legal grounds. (Doc. 1 Sandmann has also filed suit against the Cable News Network, Inc. (Cov. Case No. 19cv31) and NBC Universal Media, LLC (Cov. Case No. l9cv56). Case: Doc 47 Filed: 07/26/19 Page: 2 of 36 - Page 445 27). This matter is fully briefed, and the Court heard formal oral arguments on July 1, 2019. (Doc. 44). After further study, the Court now issues the following Opinion and Order. Factual and Procedural Background On January 18, 2019, 51 group of students fronl Covington Catholic High School in Park Hills, Kentucky attended the March for Life in Washington, accompanied. by sixteen adults. (Compl. 20). Among the students was plaintiff Nicholas Sandmann, who was wearing a ?Make America Great Again" hat that he had bought as a souvenir. (Id. 22). Sandmann and his classmates were instructed to wait at the steps of the Lincoln Memorial for the buses to arrive for their return trip to Kentucky. (Id. i 21). While the students waited, a group of men fron1 an organization called the Black, Hebrew Israelites began yelling racial epithets and threats of violence towards them. (Id. ii 23, When this yelling had been going on for almost an hour, a third. group of individuals Native Americans who had been attending the Indigenous Peoples March on the National Mall that day began approaching the students, singing and dancing, and recording a video. (Id. 27). At the front of the group was a Native?American activist named Nathan Phillips (Id. ll 3, 26). Phillips was beating a drum and singing. Case: Doc 47 Filed: 07/26/19 Page: 3 of 36 - Page 446 When the Native Americans reached the students, Sandmann was at the front of the student group. Phillips walked very close to Sandmann, beating his drum and singing within inches of Sandmann?s face. (Id. 34?35) Sandmann did not confront Phillips or move toward him, and Phillips made no attempt to go past or around Sandmann. (Id. 1% 37?41, 50). Sandmann remained silent and looked at Phillips as he played his drum and sang. The encounter ended when Sandmann and the other students were told to board their buses. (Id. 48). That evening, Kaya Taitano, a participant in the Indigenous People?s March, posted online two short videos showing portions of the interaction between Sandmann and Phillips. (Id. 52). At 11:13 a Twitter account tweeted a short excerpt from Taitano?s videos with the comment ?This MAGA. loser gleefully bothering a Native American protestor at the Indigenous Peoples March.? (Id. 54). On Saturday, January 19, 2019, one of the Hebrew Israelite members who had been at the demonstration posted on Eacebook a 1?hour, 46?minute video of the incident with Sandmann and Phillips, which Sandmann alleges accurately depicts those events. (Id. i 63). That same day, the Post published the first of seven articles that Sandmann alleges were defamatory in various respects: one article on January 19; four on January 20; and two on January 21. Case: Doc 47 Filed: 07/26/19 Page: 4 of 36 - Page 447 (Doc. 3% 111?162; Doc. 1w5 through Doc. 1?11). The Post also published three Tweets on its Twitter page on January 19 which Sandmann alleges were likewise defamatory. (Doc. 1 ii 158?161). On January 20, 2019, Sandmann made a public statement describing his version of the events concerning Phillips. (Doc. 1 69). Three days later, Sandmann gave an interview to Savannah Guthrie on the Today show on NBC, again relating his version of the encounter with Phillips. (Id. 70).2 Sandmann filed suit against The Post on February 19, 2019, alleging 51 single cause action. for defamation and. seeking compensatory damages of $50,000,000.00 and punitive damages of $200,000,000.00. (Doc. 1 at 37?38). The Court must now determine whether Sandmann?s allegations state a viable claim for relief. These are purely questions of law that bear no relation to the degree of public interest in the underlying? events or t?ma political. motivations that some ihave attributed to them. Analysis A. Rule 12 (6) On a motion to dismiss under Fed. R. Civ. this Court must ?construe the complaint in the light most favorable to the nonmoving party, accept the well?pled factual allegations as 2 The Complaint contains many other allegations, but the Court will not lengthen this Opinion by recounting them because the Court does not find them to be relevant to the legal issues presented by The Post?s motion. 4 Case: Doc 47 Filed: 07/26/19 Page: 5 of 36 - Page 448 true, and determine whether the moving party' is entitled. to judgment as a matter of law." Commercial Money Ctr., Inc. v. Ill. Union Ins. Co., 508 F.3d. 327, 336 (6th. Cir. 2007) (internal quotation marks and citation omitted). The Court need not, however, ?accept the plaintiff?s legal conclusions or unwarranted factual inferences as true." Id. ?To state ea valid claim, a complaint must contain direct or inferential allegations respecting all the material elements under some viable legal theory.? Id. court may consider exhibits attached to the complaint, public records, items appearing in the record of the case, and exhibits attached to defendant?s motion to dismiss, so long as they are referred.to in the complaint and are central to the claims contained therein, without converting the motion to one for summary judgment." Stein v. hhgregg, Inc., 873 F.3d 523, 528 (6th Cir. 2017) (citation omitted). Thus, ?if a plaintiff references or quotes certain documents, or if public records refute a plaintiff's claim, a defendant may attach those documents to its motion to dismiss, and a court can then consider them in resolving the Rule 12(b)(6) motion . . . Fairness and efficiency require this practice.? In re Omnicare, Inc. Sec. Litig., 769 F.3d 455, 466 (6th Cir. 2014). Where an exhibit ?contradicts allegations in the complaint to which it is attached, the exhibit trumps the allegations." See, Kreipke v. wayne State Univ., 807 F.3d Case: Doc 47 Filed: 07/26/19 Page: 6 of 36 - Page 449 768, 782 (6th Cir. 2015) (citation and internal quotation marks 2 JAMES Una. MOORE ET AL., FEDERAL PRACTICE 12.134(2) (Matthew Bender 3d ed. 2018) {hereinafter ?Momnfs?]. Accordingly, in ruling on The Post?s motion, the Court may consider the seven articles, the Tweets, and the two YouTube videos because these materials are either referenced in or attached to the Complaint and. Sandmann. relies on thenl in support of his defamation claim. The Court excludes all other materials attached to the parties' briefs. 2B.Kentuoky Defamation Law3 In Kentucky, a cognizable claim for defamation requires: a false and defamatory statement concerning another; an unprivileged publication to a third party; fault amounting at least to negligence on the part of the publisher; and either actionability of the statement irrespective of special harm or the existence of special harm caused by the publication. Toler V. sud?Chemie, Inc., 458 276, 282 (Ky. 2014) (internal footnote omitted) (quoting 558 (AM. LAW INST. 1977)) (hereafter But a ?defamation claim against 51 media defendant cannot derive from. ?a statement. of opinion relating to matters of public concern [that] does not contain a provably false factual connotation?? unless ?the 3 Because this Court ?is sitting in diversity, we apply the law of the forum state." Croce V. The New York Times Co., No. 18-4158, 2019 WL 3214077, at *2 (6th Cir. July 17, 2019) (citing Himmel v. Ford Motor Co., 342 F.3d 593, 598 (6th Cir. 2003)). Case: Doc 47 Filed: 07/26/19 Page: 7 of 36 - Page 450 challenged statement connotes actual, objectively verifiable facts.? Compuware Corp. v. Mendy?s Inv?rs Servs., 499 F.3d 520, 529 (6th. Cir. 2007) (alteration 111 original) (emphasis added) (quoting Milkovich v. Lorain JOurnal Co., 497 0.8. l, 20 (1990)). The Court notes that the present motion does not require the Court to address the elements of truth/falsity, publication (which is not disputed), or negligence. At issue are only whether the statements are about Sandmann, whether they are fact or opinion, and whether they are defamatory. Before turning to the merits, the Court must first discuss these important legal principles in more detail. 1. ?About? or ?Of and Concerning? the Plaintiff The first element of a defamation claim requires that the challenged statements be ?about" or ?concerning? the plaintiff. Stringer v. Wal?Mart Stores, Inc., 151 781, 793 (Ky. 2004), overruled on other grounds by Toler v. S?d~Chemie, Inc., 458 276 (Ky. 2014); see also Rosenblatt V. Baer, 383 0.8. 75, 81 (1966). Generally, ?the plaintiff need not be specifically identified in the defamatory matter itself so long as it was so reasonably understood by plaintiffs ?friends and acquaintances . . . familiar with the incident.?? Stringer, 151 at 794 (alteration in original) (emphasis added) (quoting E. W. Scripps Co. v. Cholmondelay, 569 700, 702 (Ky. Ct. App. 1978)). But this Case: Doc 47 Filed: 07/26/19 Page: 8 of 36 - Page 451 rule is limited by the principle, now memorialized in the Restatement,4 that ?where defamatory statements are made against an aggregate body of persons, an individual member not specially imputed or designated. cannot maintain an action. See, Louisville Times v. Stivers, 68 411, 412 (Ky. 1934) (citation omitted). For an individual plaintiff to bring a defamation action based on such comments, the Kentucky Supreme Court has instructed that ?the statement must be applicable to every member of the class, and if the words used contain no reflection upon any particular individual, no averment can make them defamatory." Kentucky Fried Chicken, Inc. V. Sanders, 563 8, 9 (Ky. 1978). This determination should.be made ?in the context of the whole article.? Id. 2. The ?Falsity? Requirement is Met Only Where the Words Used State verifiable Facts, Not Opinions The first element of a defamation claim also requires that the allegedly libelous statement be objectively false. Under Kentucky law, a statement in the form of an opinion can be defamatory, but it is ?actionable only if it implies the allegation of undisclosed defamatory facts as the basis for the opinion.? 4 Rm?u 2d 564A cmt. a (?no action lies for the publication of defamatory words concerning a large group or class of persons? and ?no individual member of the group can recover for such broad and general id. at cmt. (?the assertion that one man out of a group of 25 has stolen an automobile may not sufficiently defame any member of the group, while the statement that all but one of a group of 25 are thieves may cast a reflection upon each of them?). 8 Case: Doc 47 Filed: 07/26/19 Page: 9 of 36 - Page 452 Yancey V. Hamilton, 786 854, 857 (Ky. 1989) (quoting REEL 2d 566).5 In R?lkovich v. Loraine Journal Co., however, the Supreme Court subsequently held that statement of opinion relating to matters of public concern which does not contain a provably false factual connotation will receive full constitutional protection? and that ?statements that cannot reasonably [be] interpreted as stating actual facts, are not actionable.?" Jelliff v. N.L.R.B., 513 F.3d. 600, 610 (6th Cir. 2008) (internal quotation marks omitted) (quoting Milkovich v. Lorain JOurnal Co., 497 U.S. 1, 20 (1990)). Here, The Post?s articles concern groups of citizens who were assembled in the nation?s capital to support or oppose various causes of importance to them. This is inherently a Hatter of public concern.6 Thus, ?the falsity requirement is met only if the statement in question makes an assertion of fact?that is, an assertion that 5 The Kentucky Supreme Court, in Yancey, 786 at 857, expressly adopted the Restatement?s ?factwopinion distinction? almost a year before Milkovich was decided. Under the Restatement, defamatory communication may consist of a statement in the form of an opinion, but . . . only if it implies the allegation of undisclosed defamatory fact as the basis for the opinion.? Id. (quoting Rama 2d 566). 6 ?Speech deals with matters of public concern when it can be fairly considered as relating 1x3 any matter (If political, social, other concern 1x3 the community or when it is a subject of legitimate news interest; that is, a subject of general interest and of value and concern to the public." Snyder v. Phelps, 562 U.S. 443, 453 (2011) (internal citations and quotation marks omitted); of. Friends of the Vietnam veterans Mem. V. Kennedy, 116 F.3d 495, 496 (D.C. Cir. 1997) (noting that the Mail?s ?location in the heart of the nation's capital makes it a prime location for demonstrations.") 9 Case: Doc 47 Filed: 07/26/19 Page: 10 of 36 - Page 453 is capable of being proved objectively incorrect,? Clark v. Viacom Int?l, Inc., 617 F. App?x 495, 508 (6th Cir. 2015) (emphasis added) (citing Milkovich, 497 U.S. at 20), or otherwise ?connotes actual, objectively verifiable facts.? Compuware Corp., 499 F.3d at 529. Kentucky Courts adhere to ??lkovich?s ?provable as false" standard. See, welch v. American Publ?g Co., 3 724, 730 (Ky. 1999); Williams v; Blackwell, 487 451, 454 (Ky. Ct. App. 2016); Cromity v. Meiners, 494 499, 503?04 (Ky. Ct. App. 2015). In addition, Kentucky has rejected the doctrine of ?neutral reportage"; that is, a newspaper may still be held liable for quoting ?newsworthy statements? of third parties. MbCall V. Courier?JOurnal Louisville Times Co., 623 882, 886w87 (Ky. 1981). 3. The Publication, Evaluated as a Whole, Must be Defamatory, Not Merely False Lastly, to satisfy the first element of a defamation claim, the language in question must ?be both false and defamatory. A statement that is false, but not defamatory is not actionable; a statement that true ix; not actionable even :tE defamatory.? Dermody v. Presbyterian Church U.S.A., 530 467, 472m73 (Ky. Ct. App. 2017) (emphasis added).7 7 Kentucky law has long distinguished between two categories of actionable statements: libel per se and libel per guod. Stringer, 151 at 794-95 (citing Hill V. Evans, 258 917, 918 (Ky. Ct. App. 1953)). ?In the former class, damages are presumed and the person defamed may recover without 10 Case: Doc 47 Filed: 07/26/19 Page: 11 of 36 - Page 454 Sandmann alleges that the challenged statements are defamatory per se, as they are libelous on their face without resort to additional facts.? (Compl. 207). ?[Kentucky] common lj?l treats ?1 broadl] class (If written defamatory statements as actionable per se." Stringer, 151 at 794?95. But in order for a defendant?s written statement to be ?actionable jper se jjustifying e1 recovery*?without. averments of special damages,? it must be more than annoying, offensive, or embarrassing; the words must ?tend to expose the plaintiff to public hatred, ridicule, contempt or disgrace, or to induce an I evil opinion of him in the minds of people,? Digest Publ'g Co. v. Perry Publ?g Co., 284 832, 834 (Ky. 1955), or the statement must ?impugn one?s competence, capacity, or fitness in the performance of his profession," welch, 3 at 735.8 allegation or proof of special damages. In the latter class, recovery may be sustained only upon an allegation and proof of special damages." Hill, 258 at 918 (emphasis added). Thus, with libel per quod, in order to satisfy the fourth element a plaintiff must plead_and ultimately prove, special damages. Toler, 458 at 282; Dermody, 530 at 475; Rich V. Ky. Country Day Inc., 793 832, 837?38 (Ky. Ct. App. 1990). ?Special damages are those beyond.mere embarrassment which support actual economic loss; general damages relate to humiliation, mental anguish, etc.? Columbia Sussex Corp., Inc. V. Hay, 627 270, 274 (Ky. Ct. App. 1981) (emphasis added). Here, ?there is no allegation of special damages, and [so] unless the publication may be considered as actionable per se," the Court must dismiss the action. Hill, 258 at 918; Dermody, 530 at 475); Bell V. Courier? JOurnal Louisville Times Co., 402 84, 86 (Ky. 1966). 3 With written statements, ?it is not necessary that the words imply a crime or impute a violation of laws, or involve moral turpitude or immoral conduct.? Digest Publ?g Co., 284 at 834; Stringer, 151 at 795. ll Case: Doc 47 Filed: 07/26/19 Page: 12 of 36 - Page 455 The Restatement explains that what constitutes actionable defamation is not subject to the whims of those in society who are faint of heart: Although defamation is not a question of majority opinion, neither is it a question of the existence of some individual or individuals with views sufficiently peculiar to regard as derogatory what the vast majority of persons regard as innocent. The fact that a communication tends to prejudice another in the eyes of even a substantial group is not enough if the group is one whose standards are so anti?social that it is not proper for the courts to recognize them. Rmm. 2d 559 cmt. e. ?[Tlhe fact that a person who is prone to think. evil of others, hearing ?words obviously intended txy be innocent, by an ?unreasonable construction attaches to them. a derogatory meaning, does not render the language defamatory." RESL 2d 563 cmt. c. ?In determining whether a writing is libelous per se [under Kentucky law], courts must stay within the four corners of the written communication." Roche v. Home Depot U.S.A., 197 F. App?x 395, 398 (6th Cir. 2006) (emphasis added) (citations and internal quotation marks omitted). ?The words must be given their ordinary, natural meaning as defined by the average lay person. The face of the writing must be stripped of all innuendoes and explanations." Id.; Dermody, 530 at 475.9 9 A publication is considered libelous per quod if one must resort to ?extrinsic evidence of context or circumstances" in order to comprehend the defamatory nature of the written words. Stringer, 151 at 7'95; Disabled Am. Veterans, Dep?t of Ky., Inc. V. Crabb, 182 541, 547 (Ky. Ct. App. 2005). 12 Case: Doc 47 Filed: 07/26/19 Page: 13 of 36 - Page 456 Finally, the Court must ?analyze the article in its entirety and determine if its gist or sting is defamatory.? MCCall, 623 at 884; Biber V. Duplicator Sales Serv;, 155 732, 738 (Ky. Ct. App. 2004). CL The Post Articles As noted, the Complaint in this matter challenges seven articles and three Tweets. In total, these publications contain thirty?three statements that Sandmann alleges are defamatory. A chart setting forth the statements, drawn from the Complaint, is attached for reference. This discussion will refer to the statements by their number on the chart. 1.Article One The first three articles that Sandmann challenges have in common nine statements: statements 1?3, 8, 10, 13, and 15?17.lC a.Statements Not ?About" Sandmann The First Article does not mention Sandmann by name, there is no identifiable description of him, and there is no picture of Sandmann in the article. Instead, statement numbers le3, 8, 13, 15, and 16 refer to ?hat wearing' teens?; ?the teens"; ?teens and other apparent participants"; few jpeople?; ?those who should listen most closely?; and ?They." These statements are not actionable because Statement 17 requires no discussion as it does not refer to Sandmann or the events in question. 13 Case: Doc 47 Filed: 07/26/19 Page: 14 of 36 - Page 457 they are not about Sandmann. See Sanders, 563 at 9 (affirming dismissal of defamation complaint where newspaper published derogatory statements about gravy because there was ?nothing jj1 the present article which identified? made ?direct reference to" plaintiff?s particular restaurant location); Stivers, 68 at 411~12 (holding that plaintiff?s defamation claim should have been dismissed. because statement that the ?Stivers clan? had been involved in ?fist fights and gun battles? was toward a group or class and not actionable as a matter of law); O?Brien v. Williamson Daily News, 735 F. Supp. 218, 220 (E.D. Ky. 1990) (dismissing defamation claims of teachers not identified in an article that mentioned ?teachers having affairs with students? because the article referred to ?no identifiable group member and does not impugn the reputation of any specific member"), aff?d, 931 F.2d 893 (6th Cir. 1991). Like the statements about groups or classes suCh as ?the Stivers clan?; Kentucky Fried Chicken restaurants; and ?teachers,? statements such as ?hat wearing teens," are clearly ?made against an aggregate body of_persons,? Stivers, 268 at 412, and thus ?an individual member not specially imputed or designated cannot maintain an] action.? Id. Sandmann jiS not specifically mentioned i1} the article. Therefore, because ?W?me words used contain no reflection upon any particular individual, no averment can make them defamatory.? Sanders, 563 at 9. l4 Case: Doc 47 Filed: 07/26/19 Page: 15 of 36 - Page 458 These statements are also not actionable for other reasons, discussed below. 13.0pinion versus Fact Few principles of law are as well?established as the rule that statements of opinion are not actionable in libel actions. This rule is based on the right to freedom of speech in the First Amendment to the United States Constitution. See David A. Elder, Kentucky Tort Law: Defamation and the Right of Privacy 2.04 (1983); 13 David J. Leibson, Kentucky Practice (Tort Law) 15:2 (1995). This Court has had occasion to address this issue several times. See Loftus v. Nazari, 21 F. Supp.3d 849, 853?54 (E.D. Ky. 2014) (holding that patient?s statements regarding allegedly poor results of plastic surgery were protected opinion); Lassiter V. Lassiter, 456 F. Supp. 2d 876, 881?82 (E.D. Ky. 2006) (holding that woman's statement that her ex?husband had committed adultery was protected opinion because the facts on which she based that statement were a?J_ disclosed ij1 the publication ij1 question), aff?d, 280 F. App?x 503 (6th Cir. 2008). In Lassiter, this Court quoted Leibson on this point: Pure opinion . . . occurs where the commentator states the facts on which the opinion is based, or where both parties to the communication know or assume the exclusive facts on which the comment is based. Lassiter, 456 F. Supp. 2d at 881 (alteration in original) (quoting 15 Case: Doc 47 Filed: 07/26/19 Page: 16 of 36 - Page 459 13 David J. Leibson, Kentucky Practice (Tort Law) 15:2 at 449 (1995)). Under these authorities, the statements that Sandmann challenges constitute protected opinions that may not form the basis for a defamation claim. First, statements lm3, 10, 13, 16, are not actionable because they do not state or imply ?actual, objectively verifiable facts." Compuware Corp., 499 F.3d at 529; Yancey, 786 at 857. Instead, these statements contain terms such. as ?ugly," ?swarmed,? ?taunting,? ?disrespect," ?ignored," ?aggressive,? ?physicality,? aumi ?rambunctious.? These are: all examples