Sandmann v. N.Y. Times Co.

78 F.4th 319

Nicholas SANDMANN, Plaintiff-Appellant, v. NEW YORK TIMES COMPANY (22-5734);CBS News, Incorporated, ViacomCBS, Incorporated, and CBS Interactive, Incorporated (22-5735);ABC News, Inc., ABC News Interactive, Incorporated, and Walt Disney Company (22-5736);Rolling Stone, LLC and Penske Media Corporation (22-5737);Gannett Company, Inc. and Gannett Satellite Information Network, LLC (22-5738), Defendants-Appellees.

No. 22-5734

No. 22-5735

No. 22-5736

No. 22-5737

No. 22-5738

United States Court of Appeals, Sixth Circuit

Argued: April 26, 2023

Decided and Filed: August 16, 2023

Appeal from the United States District Court for the Eastern District of Kentucky at Covington. No. 2:20-cv-00023—William O. Bertelsman, District Judge.

ARGUED: Todd V. McMurtry, HEMMER DEFRANK WESSELS, Ft. Mitchell, Kentucky, for Appellant. Nathan Siegel, DAVIS WRIGHT TREMAINE LLP, Washington, D.C., for Appellees. ON BRIEF: Todd V. McMurtry, Jeffrey A. Standen, J. Will Huber, HEMMER DEFRANK WESSELS, Ft. Mitchell, Kentucky, for Appellant. Nathan Siegel, Meenakshi Krishnan, DAVIS WRIGHT TREMAINE LLP, Washington, D.C., Robert B. Craig, TAFT STETTINIUS & HOLLISTER LLP, Covington, Kentucky, Dana R. Green, THE NEW YORK TIMES COMPANY, New York, New York, Darren W. Ford, GRAYDON HEAD & RITCHEY LLP, Ft. Mitchell, Kentucky, John C. Greiner, GRAYDON HEAD & RITCHEY LLP, Cincinnati, Ohio, Natalie J. Spears, Gregory R. Naron, DENTONS US LLP, Chicago, Illinois, Jessica Laurin Meek, DENTONS BINGHAM GREENEBAUM LLP, Indianapolis, Indiana, Kevin T. Shook, FROST BROWN TODD LLC, Columbus, Ohio, Ryan W. Goellner, FROST BROWN TODD LLC, Cincinnati, Ohio, Jason P. Renzelmann, FROST BROWN TODD LLC, Louisville, Kentucky, Michael P. Abate, William R. Adams, KAPLAN JOHNSON ABATE & BIRD LLP, Louisville, Kentucky, Michael J. Grygiel, Cynthia E. Neidl, Candra M. Connelly, GREENBERG TRAURIG, LLP, Albany, New York, for Appellees.

Before: GRIFFIN, STRANCH, and DAVIS, Circuit Judges.

STRANCH, J., delivered the opinion of the court in which DAVIS, J., joined. GRIFFIN, J. (pp. 333-45), delivered a separate dissenting opinion.

OPINION

JANE B. STRANCH, Circuit Judge.

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. The district court granted the News Organizations' joint motion for summary judgment, finding that the challenged statements were opinion, not fact, and therefore nonactionable. Sandmann appealed. For the following reasons, we AFFIRM.

I. BACKGROUND

A. Factual Background

1. The January 18, 2019 Encounter

On January 18, 2019, Sandmann attended the March for Life, a political demonstration in Washington, D.C., with over one hundred of his classmates from Covington Catholic High School, an all-boys school located in Kentucky. The group attended the demonstration, bought "Make America Great Again" hats at the White House gift shop, then, at around 5:00 p.m., met on the Lincoln Steps, which lead from the Reflecting Pool to the Lincoln Memorial Plaza and the Memorial itself. The Lincoln Steps rise from the west end of the Reflecting Pool and are a direct exit to the Memorial from that side of the Pool.¹

Other members of the public were in the area as well, including attendees of the Indigenous Peoples March, an unrelated political demonstration that took place in Washington, D.C. the same day. There were also five or six members of the Black Hebrew Israelites proselytizing near the Lincoln Memorial. They insulted various onlookers and passersby, including the Covington students, who received permission from a chaperone to shout school cheers and chants in response to the invective directed at them. One Covington student walked down the steps to the front of the group, took off his shirt, and led the students in loud chants reminiscent of a haka, a ceremonial Māori dance. After he rejoined the group, the students continued chanting briefly and talking amongst themselves.

Nathan Phillips had participated in the Indigenous Peoples March and was in the area by the Reflecting Pool waiting for friends. He saw the interaction between the Covington students and Black Hebrew Israelites and was concerned that it would escalate. Phillips wanted to try and calm the situation through song, so he borrowed a drum from a musician standing nearby and began to sing a traditional Native song that expresses unity. He initially sang off to the side of the Lincoln Steps, some distance away from the two groups, then decided to walk up and stand in front of the students to put himself between them and the Black Hebrew Israelites. He approached the Covington group, drumming and singing. Over the next minute or so, students and onlookers gathered around Phillips, and the Covington students responded to his singing by jumping, chanting, whooping, and in at least one student's case, performing a "tomahawk chop" (a movement of the forearm that mimics a tomahawk axe chopping).

As the space around Phillips filled in, he became concerned for his own safety and that of others with him. He tried to exit the situation by walking up the steps towards the Lincoln Memorial, and as he began moving forward, students moved out of his way—until he reached Sandmann, who did not move. The two stood face to face as Phillips played his drum and sang. Other Covington students behind Sandmann moved aside, clearing the steps behind Sandmann that led to the Memorial for about a minute. Then, one of the students behind Sandmann appeared to wave or signal with his hand, and students who had moved aside filled back in. For the next several minutes, Phillips drummed and sang; Sandmann continued to stand there, smiling and wearing a "Make America Great Again" hat. Neither changed his position during the encounter. When asked "What made you stand in front of the Indian guy?" Sandmann responded that "the whole thing with the black people calling us things and the guy moving through the crowd trying to intimidate us" made him "want to stand up for the school." R. 74-1, Sandmann Dep. Tr., PageID 2156-57. He explained: "I figured [it was] time for someone to plant their foot and stand there where I had been and just face up. And to me, that was standing up for the school, because I wasn't going to move." Id., PageID 2158.

A chaperone then arrived and told the students to leave, and Sandman walked away. Phillips concluded his song by raising the drum, turning in a circle, and walking back toward the Reflecting Pool.

2. Media Coverage

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." We begin by describing the News Organizations' coverage, which recounted the events of January 18, 2019, and articulated their contested nature. The online articles at issue embedded, linked to, or referenced some version of the videos, and the print articles referenced the videos as well. The dissent characterizes the News Organizations' articles as "embracing" Phillips's version of events. The articles do not: rather, they describe a contentious encounter, the meaning of which was hotly disputed by participants and witnesses.

The New York Times (the Times) published an article both online and in print on January 19. The Times issued two almost identical versions of the article; the first was headlined "Boys in 'Make America Great Again' Hats Mob Native Elder at Indigenous Peoples March," and the second "Viral Video Shows Boys in 'Make America Great Again' Hats Surrounding Native Elder.' " The only other difference between the articles was a disclaimer at the beginning of the second version, which read: "Interviews and additional video footage have offered a fuller picture of what happened in this encounter, including the context that the Native American man approached the students amid broader tensions outside the Lincoln Memorial." Both versions of the online article embedded a video of the incident immediately below the headline. The article, which did not mention Sandmann by name, described the January 18 events as seen in viral video footage and situated them within a broader political and historical context. It included a statement from the Diocese of Covington and Covington Catholic High School condemning the students' behavior and apologizing to Phillips, as well as comments from organizers of the Indigenous Peoples March and other political and public figures. The blocking statements that Phillips had made to the Washington Post were included in a part of the article that explained who he was and described the Indigenous Peoples March in the words of its organizers and a statement from the Indigenous Peoples Movement.

CBS News Inc. (CBS) published an eight-minute-long broadcast including an interview with Phillips, as well as an associated online article embedding the video segment, both on January 20. During the broadcast, a reporter asked Phillips to recount his experience. CBS...