Nicholas Sandmann v. Rolling Stone, LLC

RECOMMENDED FOR PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 23a0180p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

┐

NICHOLAS SANDMANN,

│

Plaintiff-Appellant, │

│

v. │

> Nos. 22-5734/5735/5736/5737/5738

│

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. ┘

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: April 26, 2023

Decided and Filed: August 16, 2023

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

_________________

COUNSEL

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,

Nos. 22-5734 /5735 Sandmann v. New York Times Co. et al. Page 2

/5736 /5737 /5738

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.

STRANCH, J., delivered the opinion of the court in which DAVIS, J., joined. GRIFFIN,

J. (pp. 20–38), 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

Nos. 22-5734 /5735 Sandmann v. New York Times Co. et al. Page 3

/5736 /5737 /5738

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.

1

See Nat’l Park Serv., Features of the Lincoln Memorial, https://www.nps.gov/linc/learn/historyculture

/memorial-features.htm (last visited June 23, 2023); Nat’l Park Serv., Lincoln Memorial - Maps,

https://www.nps.gov/linc/planyourvisit/maps htm (last visited June 23, 2023).

Nos. 22-5734 /5735 Sandmann v. New York Times Co. et al. Page 4

/5736 /5737 /5738

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

Nos. 22-5734 /5735 Sandmann v. New York Times Co. et al. Page 5

/5736 /5737 /5738

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

published the following statement by Phillips, which he made in that interview:

[Sandmann] just stood in front of me, and when the others were moving aside and

letting me go, he decided that he wasn’t gonna do that. You know, I tried to,

when I was coming up the steps, I seen him start putting himself in front of me, so

I slided [sic] to the right, and he slided [sic] to the right. I slided [sic] to the left

and he slided [sic] to the left – so by the time I got up to him, we were right in

Nos. 22-5734 /5735 Sandmann v. New York Times Co. et al. Page 6

/5736 /5737 /5738

front of him. He just positioned himself to make sure that he aligned himself with

me so that he stopped my exit.2

In the video segment, the reporter explained that a recently viral video had shown “what appears

to be a standoff” between a group of high school students and a Native American man at the

National Mall, but that “more information” was now available to “provide[] better context and

depth to what actually happened.” The reporter outlined the public discussion around the video

and the judgments that people had made about the students’ and Phillips’s intentions. Explaining

that a lengthier video had given more context, the reporter noted that “the context it provides

suggests that the story is not as originally reported,” observing that, for example, the video

showed Phillips “insert[ing] himself into the situation.” Then, the reporter explained that CBS

“wanted to talk to the students, the parents, but also Mr. Phillips.” The reporter then introduced

the interview where Phillips provided his version of events and made the sliding statements. The

broadcast displayed clips of the interaction throughout the interview with Phillips. At the

conclusion of the video, the reporter reiterated that, “again, it’s important to add the original

story was incomplete. Now we hope you have more context . . . the video as we’ve seen shows

Mr. Phillips walking into the group, inserting himself, trying to diffuse the situation between the

students and the Black Hebrew Israelites.” The online article associated with the video cited

both Phillips’s and Sandmann’s explanations of the event, and it quoted from a statement that

Sandmann issued before including the statement Phillips had made in the CBS interview.

ABC News Inc. (ABC) published four articles that were initially the subject of this

action, as well as several broadcasts about the incident that were embedded in those articles. The

first online article, titled “Viral video of Catholic school teens in ‘MAGA’ caps taunting Native

Americans draws widespread condemnation; prompts a school investigation,” was published on

January 20. The article summarized the incident and quoted the blocking statements Phillips had

2

On appeal, Sandmann refers to this as the “sliding” statement and emphasizes its specific language. He

did not address it independently before the district court in opposing summary judgment, even in his supplemental

opposition to CBS’s supplemental memorandum, and he mentioned the statement only briefly in his motion for

partial summary judgment. CBS did not address this statement with any specificity in its motion for summary

judgment either. In general, however, the parties applied the same analysis to this statement as they did to the

blocking statements, and the district court addressed the CBS statement as part of its broader opinion-versus-fact

discussion. We do the same.

Nos. 22-5734 /5735 Sandmann v. New York Times Co. et al. Page 7

/5736 /5737 /5738

made to the Washington Post. Immediately after Phillips’s statement, the article quoted a

statement from an anonymous Covington student providing a different description of the

situation: “[A]n Indigenous American man with a few other men approached the center of the

boys and in particular one boy (who goes to my school but I do not know him). He was beating

his drum and chanting something that I couldn’t understand. The boy from my school didn’t say

anything or move—he just stood there.” The article then quoted a college student present during

the encounter who said that the group of Indigenous Peoples March attendees had been peaceful.

The article then included a statement from Sandmann, who said, “I realized everyone had

cameras and that perhaps a group of adults was trying to provoke a group of teenagers into a

larger conflict. I was not intentionally making faces at the protestor. I did smile at one point

because I wanted him to know that I was not going to become angry, intimidated or be provoked

into a larger confrontation.” And, like, the Times article, the first ABC article reported on

comments made by other public figures.

The second ABC article, also published on January 20, was substantially similar to the

first and again contained the blocking statements. This article primarily reported Sandmann’s

and Phillips’s perspectives and statements on the encounter, along with the joint statement from

the Diocese of Covington and Covington Catholic High School. It began with a section of

Sandmann’s statement, then quoted Phillips’s blocking statements and other statements he had

made to the press, then returned to Sandmann’s statement, noting that he “disputed” Phillips’s

claims. The third and fourth ABC articles, both published on January 21, discussed new

additional videos that offered “a fuller picture” of what precipitated the encounter. Both articles

contained a characterization of Phillips’s blocking statements: “Some students backed off, but

one student wouldn’t let him move, he added.” These articles similarly focused on Sandmann’s

and Phillips’s perspectives, with the third article characterizing them as “dueling accounts” and

the fourth explaining that Sandmann had “shared his side of the story” in his statement. Both

articles also included their own, independent descriptions of the videotaped events.

Rolling Stone published an article on January 22, 2019, titled “Trump Comes to the

Rescue of the MAGA Teens.” The article explained that “in a widely circulated clip, Phillips

was taunted by the teens” but that “Sandmann released a statement alleging otherwise,” linking

Nos. 22-5734 /5735 Sandmann v. New York Times Co. et al. Page 8

/5736 /5737 /5738

to and quoting part of that statement in the article. The article focused on President Trump’s

reaction to the incident and the broader controversy that had come to surround it. It quoted

Sandmann’s statement multiple times and noted that “[a]dditional videos confirm Sandmann’s

claim” that the Covington students were being harassed by the Black Hebrew Israelites. The

article then discussed Phillips’s perspective, noting that he “said he felt threatened” and quoting

the blocking statements. The last sentence noted that Sandmann would “continue to tell his side

of the story when he sits down with Savannah Guthrie of the Today Show[.]”

Finally, Gannett Co. (the Cincinnati Enquirer, Detroit Free Press, Louisville Courier-

Journal, the Tennessean, and USA TODAY, or collectively, Gannett) published nine print and

online articles about the encounter between January 19 and January 30. The Gannett articles all

included the blocking statements or statements of a similar nature, including descriptions of

Phillips “trying” to walk away but being “blocked,” and of Sandmann “[standing] in his way.”

Many of the Gannett articles noted that accounts of the encounter varied. For instance,

an online Cincinnati Enquirer article published on January 19 and updated on January 20 quoted

Sandmann’s statement and explanation that he “believed that by remaining motionless and calm,

[he] was helping to diffuse [sic] the situation,” then reported that a spokesman for the Indigenous

Peoples March said that Phillips had approached the students “in an attempt to defuse the

situation.” The article quoted the blocking statements, followed by a section of Sandmann’s

statement that said he “never felt like [he] was blocking the Native American protestor,” and that

it “was clear to [him] that [Phillips] had singled [him] out for a confrontation.” Similarly, the

first two paragraphs of a Cincinnati Enquirer article published online on January 20 and in print

on January 24 noted that there was “intense debate about how, exactly, the encounter played

out,” and that “the question of each party’s intent has been hotly contested.” The article quoted

Sandmann’s statement multiple times in its description of the events as shown on video, cited

Phillips’s explanation that he was “trying to defuse the situation,” and quoted the blocking

statements. Another Cincinnati Enquirer article published online on January 24 and in print on

January 25 discussed Phillips’s appearance on the “Today” show, which Sandmann had also

appeared on, and described Phillips’s disagreement with Sandmann’s statement. The Detroit

Free Press article on that same “Today” show appearance similarly noted that “[w]hile

Nos. 22-5734 /5735 Sandmann v. New York Times Co. et al. Page 9

/5736 /5737 /5738

Sandmann said he wished the students had walked away, Phillips explained he tried to walk

away and was blocked.”3

B. Procedural History

Sandmann initially sued the Washington Post in February of 2019, then CNN and NBC

shortly thereafter, claiming defamation under Kentucky law based on those outlets’ publication

of allegedly false statements about him. See Sandmann v. WP Company LLC (Washington Post),

No. 2:19-cv-19 (E.D. Ky. 2019); Sandmann v. CNN, No. 2:19-cv-31 (E.D. Ky. 2019); Sandmann

v. NBC, No. 2:19-cv-56 (E.D. Ky. 2019).4 The district court granted the Washington Post’s

motion to dismiss, concluding that some of the challenged statements were not “about”

Sandmann as contemplated by defamation law. See Sandmann v. WP Co. LLC, 401 F. Supp. 3d

781, 791, 797 (E.D. Ky. 2019). Others—including the blocking statements—were statements of

opinion and therefore non-actionable. Id. at 791-93. The district court emphasized that “[f]ew

principles of law are as well-established as the rule that statements of opinion are not actionable

in libel actions.” Id. at 791. And even if the statements were “about” Sandmann or statements of

fact, the court determined, they did not have a defamatory meaning. See id. at 793-97.

Sandmann moved for reconsideration of that ruling and for leave to file an amended

complaint. He argued that the district court had prematurely resolved the issue of whether

statements were opinion or fact and that the factual record needed further development. See

Washington Post R. 49-1, R. 60. The district court granted Sandmann’s motion as to three

statements “to the extent that [they] state that plaintiff ‘blocked’ Nathan Phillips and ‘would not

allow him to retreat.’” Washington Post R. 64, PageID 861. Finding that the three statements

“pass[ed] the requirement of ‘plausibility,’” after discovery as to those statements and their

3

In providing its summary of the at-issue news coverage, the dissent emphasizes that many of the articles

mentioned a statement by Phillips that he heard the students chanting “build that wall,” a phrase referring to

President Trump’s plan to build a wall between the United States and Mexico. The phrase cannot be heard on audio

of the incident, and, as some of the News Organizations reported, Sandmann said that he did not hear any students

chant it. Whether Phillips’s statement about the chanting is true or not, it is not at issue. Sandmann’s lawsuit is

about the blocking statements and the statement Phillips made in his CBS interview.

4

Unless otherwise specified, all lower-court citations are to Sandmann v. The New York Times Company,

2:20-cv-23 (E.D. Ky. 2020). Citations beginning with “CBS” refer to case number 2:20-cv-24, which was also filed

in the Eastern District of Kentucky in 2020.

Nos. 22-5734 /5735 Sandmann v. New York Times Co. et al. Page 10

/5736 /5737 /5738

context, the court would “consider them anew” at summary judgment. Id. The court entered

companion rulings in the CNN and NBC cases. CNN R. 43; NBC R. 43. The Washington Post,

CNN, and NBC cases all eventually settled without a final determination by the district court on

the merits. Washington Post R. 81; CNN R. 69; NBC R. 83.

In March of 2020, Sandmann filed the five at-issue lawsuits against the Appellees, again

alleging defamation under Kentucky law. The district court denied the News Organizations’

motions to dismiss, holding that its rulings in Washington Post applied equally to Sandmann’s

new lawsuits. E.g., R. 27. The parties agreed to narrow and bifurcate discovery and summary

judgment practice, with the first phase of the case to focus on “the facts pertaining to the

encounter” between Sandmann and Phillips, specifically “whether Nathan Phillips’ statements

that Plaintiff ‘blocked’ him or ‘prevented him from retreating’ . . . are true or substantially true,

or otherwise not actionable based on the undisputed facts developed during initial discovery and

the issues defined in the Court’s prior decisions.” R. 38, PageID 303-04. After the first phase of

discovery, Sandmann moved for partial summary judgment on the issue of falsity, and the

Appellees jointly cross-moved for summary judgment.

In 2022, the district court granted the News Organizations’ motion. “[A]pply[ing] the

same analysis” to all the statements at issue, the court concluded that the challenged statements

were objectively unverifiable and therefore unactionable opinion. The court explained that

Phillips’s statements relied on assumptions about both his and Sandmann’s state of mind, and

that a reasonable reader would understand that Phillips was “conveying his view of the

situation.” The court did not reach Appellees’ alternative argument that the challenged

statements were substantially true, and mooted Sandmann’s cross-motion for partial summary

judgment. Sandmann timely appealed in each case, and all five appeals were consolidated.

II. ANALYSIS

On appeal, Sandmann raises two arguments: (1) the district court erred in not applying

the law of the case doctrine because, before ruling on the parties’ summary judgment motions, it

had already determined that the statements were fact, not opinion, and (2) the district court

incorrectly determined that the challenged statements were opinion rather than fact.

Nos. 22-5734 /5735 Sandmann v. New York Times Co. et al. Page 11

/5736 /5737 /5738

Appellees urge affirmance on the basis of the statements’ opinion status or on any of three

additional, alternative grounds.

A. Law of the Case

Before we reach the heart of Sandmann’s appeal, a brief discussion of the law of the case

doctrine is in order. As the name of the doctrine suggests, “findings made at one point in the

litigation become the law of the case for subsequent stages of that same litigation.” United States

v. Moored, 38 F.3d 1419, 1421 (6th Cir. 1994). So that litigants are treated consistently, where

an issue is “actually decided,” “the same issue presented a second time in the same case in the

same court should lead to the same result.” Howe v. City of Akron, 801 F.3d 718, 739 (6th Cir.

2015) (emphasis omitted) (quoting Sherley v. Sebelius, 689 F.3d 776, 780 (D.C. Cir. 2012)). We

review district courts’ application of this doctrine for abuse of discretion. Rouse v.

DaimlerChrysler Corp., 300 F.3d 711, 715 (6th Cir. 2002).

Sandmann claims that, because the district court reconsidered its opinion dismissing the

blocking statements as opinion, it “reversed itself” and determined that those statements

provided a basis for liability (i.e., were fact). He relies on the companion orders in Washington

Post, CNN, and NBC, which concluded that the blocking statements sufficiently “pass[ed] the

requirement of ‘plausibility’” and thus survived the motions to dismiss of the News

Organizations. He also cites the court’s discovery order in the five cases before us, which

instructed the parties to focus on “whether Nathan Phillips’ statements that Plaintiff ‘blocked’

him or ‘prevented him from retreating’ . . . are true or substantially true, or otherwise not

actionable based on the undisputed facts developed during initial discovery and the issues

defined in the Court’s prior decisions.” Without an implied ruling that the statements were

factual, Sandmann argues, the court’s directive to determine their truth or falsity would be

“incomprehensible.”

The Washington Post order did not establish any law of the case as to the statements’

opinion or factual nature. In that order, the court deemed the statements plausible enough to

overcome a motion to dismiss, but it also explained that it would “consider [the issues] anew on

Nos. 22-5734 /5735 Sandmann v. New York Times Co. et al. Page 12

/5736 /5737 /5738

summary judgment” and in fact never ultimately issued an order on the merits before

Washington Post, CNN, and NBC settled.

The discovery order in the five cases at hand is similarly inconclusive. In addition to

contemplating discovery specifically related to the truth of the statements, it also instructed the

parties to conduct discovery about whether the statements are “otherwise not actionable.” Given

that opinions may be nonactionable under Kentucky defamation law, the district court’s directive

therefore left open the question of whether the statements were opinion or fact. Moreover, the

order’s language was identical to language in the parties’ jointly submitted report about the scope

of contemplated discovery. We find no merit to Sandmann’s suggestion that all five defendants

silently agreed to limit discovery in a way that implicitly conceded an element essential to the

case. The law of the case doctrine does not apply, and the district court did not abuse its

discretion in resolving the opinion issue at summary judgment.

B. Summary Judgment

We review the district court’s grant of summary judgment de novo, drawing all

reasonable inferences in favor of the nonmoving party. SunAmerica Hous. Fund 1050 v.

Pathway of Pontiac, Inc., 33 F.4th 872, 878 (6th Cir. 2022). Summary judgment is appropriate

when the moving party shows that there are no genuine disputes of material fact and that it is

entitled to judgment as a matter of law. Id.; Fed. R. Civ. P. 56(a). “[W]here, as here, there is ‘a

videotape capturing the events in question,’ the court must ‘view[ ] the facts in the light depicted

by the videotape.’” Green v. Throckmorton, 681 F.3d 853, 859 (6th Cir. 2012) (quoting Scott v.

Harris, 550 U.S. 372, 378, 381 (2007)) (second alteration in Green).

1. Opinion Versus Fact

Because Sandmann invoked diversity jurisdiction, Kentucky substantive law applies. See

Himmel v. Ford Motor Co., 342 F.3d 593, 598 (6th Cir. 2003). In Kentucky, a cognizable claim

for defamation requires:

Nos. 22-5734 /5735 Sandmann v. New York Times Co. et al. Page 13

/5736 /5737 /5738

(a) a false and defamatory statement concerning another;

(b) an unprivileged publication to a third party;

(c) fault amounting at least to negligence on the part of the publisher; and

(d) either actionability of the statement irrespective of special harm or the

existence of special harm caused by the publication.5

Toler v. Süd-Chemie, Inc., 458 S.W.3d 276, 282 (Ky. 2014) (internal footnote omitted) (quoting

Restatement (Second) of Torts § 558 (Am. L. Inst. 1977) [hereinafter Restatement]). The crux of

this appeal is the challenged statements’ actionability. “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.” Cromity v. Meiners, 494 S.W.3d 499, 504 (Ky. Ct. App.

2015) (citing Yancey v. Hamilton, 786 S.W.2d 854, 857 (Ky. 1989); Biber v. Duplicator Sales &

Serv., Inc., 155 S.W.3d 732 (Ky. 2004)).

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.” Milkovich v. Lorain J. Co., 497 U.S. 1, 20, 22

(1990) (quotation marks and alterations omitted). See Counterman v. Colorado, 143 S.Ct. 2106,

2115 (2023) (quoting Gertz v. Robert Welch, Inc., 418 U.S. 323, 340 (1974)) (“False and

defamatory statements of fact, we have held, have ‘no constitutional value.’”) In other words, “a

viable defamation claim exists only where a reasonable factfinder could conclude that the

challenged statement connotes actual, objectively verifiable facts.” Compuware Corp. v.

Moody’s Inv. Services, Inc., 499 F.3d 520, 529 (6th Cir. 2007). See also Milkovich, 497 U.S.

at 21 (statement not opinion where it “is sufficiently factual to be susceptible of being proved

true or false” based on “objective evidence”).

Kentucky law similarly protects opinion statements from having a defamatory meaning

but adopts the Restatement (Second) of Torts’ approach to distinguishing between “pure” and

“mixed” opinion. Yancey, 786 S.W.2d at 857. Pure opinion is absolutely privileged and is based

on disclosed facts or on facts known or assumed by both parties to the communication. Id. The

5

The parties agree that because Kentucky has rejected the doctrine of “neutral reportage,” a newspaper may

still be held liable for quoting “newsworthy statements” of third parties. McCall v. Courier-Journal & Louisville

Times Co., 623 S.W.2d 882, 886-87 (Ky. 1981).

Nos. 22-5734 /5735 Sandmann v. New York Times Co. et al. Page 14

/5736 /5737 /5738

Restatement explains that a pure opinion “may be ostensibly in the form of a factual statement if

it is clear from the context that the maker is not intending to assert another objective fact but only

his personal comment on the facts which he has stated.” Restatement § 566 cmt. b. An opinion

may, however, be defamatory and actionable if it is mixed, i.e., “if it implies the allegation of

undisclosed defamatory fact as the basis for the opinion.” Yancey, 786 S.W.2d at 857 (quoting

Restatement § 566). The allegedly defamatory statement is to be “construed as a whole,” id.

(quoting McCall v. Courier-Journal & Louisville Times Co., 623 S.W.2d 882, 884 (Ky. 1981)),

and “in the sense in which the readers to whom it is addressed would ordinarily understand it,”

id. at 858 (quoting Gearhart v. WSAZ, Inc., 150 F. Supp. 98, 109 (E.D. Ky. 1957)).

The opinion-versus-fact inquiry thus typically involves two steps under Kentucky law.

First, the court determines whether a statement is fact or opinion. If the statement is factual, the

analysis ends there; the statement is considered capable of defamatory meaning. But if the

statement is one of opinion, the court then determines whether that opinion is based on

undisclosed defamatory facts. If so, the statement is capable of defamatory meaning; if not, it is

protected opinion. Here, the district court held that the blocking statements “did not imply the

existence of any nondisclosed defamatory facts,” and Sandmann does not challenge that aspect

of its holding. So, if the blocking statements are opinion, they are protected by the Constitution

and by Kentucky law.

The way a statement is presented or worded affects the ultimate legal determination of

whether it is a fact or opinion. For example, “loose” or “figurative” language can “negate the

impression” that the speaker was “seriously maintaining” an assertion of fact. Milkovich, 497

U.S. at 21. So can “the general tenor” of an article. Id. Kentucky courts have found statements

to be opinion where those statements were couched in qualifying terms, see Williams v.

Blackwell, 487 S.W.3d 451, 453, 455-56 (Ky. Ct. App. 2016); sufficiently subjective, see

Cromity, 494 S.W.3d at 503-04; or clearly intended to be opinion when “evident from the

totality” of their context, see Seaman v. Musselman, No. 2002-CA-001269-MR, 2003 WL

21512489, at *4 (Ky. Ct. App. July 3, 2003). The inquiry is setting-specific: that a statement

may be capable of objective verification in some contexts does not make it an objectively

Nos. 22-5734 /5735 Sandmann v. New York Times Co. et al. Page 15

/5736 /5737 /5738

verifiable fact in every context. Contrary to Sandmann’s claim, there is no bright-line rule that

statements based on sensory perceptions are necessarily factual.

Start with Phillips’s statement to the Washington Post. First, he explained that his goal

was to “find . . . an exit out of this situation.” Having articulated that aim, he then described

himself and Sandmann as at an “impasse,” a term that can be literal or figurative. See Oxford

English Dictionary, Impasse (Noun), https://www.oed.com/view/Entry/92128 (last visited June

22, 2023). Then, based on Phillips’s perception of Sandmann’s reaction to his attempt to leave

the area, he said that Sandmann “blocked” him and would not “allow” him to retreat. Whether

or not a video shows Phillips attempting to move around or away from Sandmann—or indeed

any active movement—does not help us ascertain or objectively verify whether Phillips

accurately interpreted Sandmann’s actions as purposefully “prevent[ing]” his “passage” away

from the crowd to the Lincoln Memorial or refusing to “approve” his exit. Oxford English

Dictionary, Block (Verb), https://www.oed.com/view/Entry/20348 (last visited August 9, 2023);

Oxford English Dictionary, Allow (Verb), https://www.oed.com/view/Entry/5460 (last visited

August 9, 2023). And “retreat” need not literally mean to move backwards. The word also

means to “withdraw” or “back down” figuratively. Oxford English Dictionary, Retreat (Verb),

https://www.oed.com/view/Entry/164427 (last visited August 9, 2023).

As the district court noted, Sandmann and Phillips never spoke to each other during the

encounter. It is unclear whether Sandmann knew that students behind him had stepped aside as

Phillips approached, which made him the single person standing between Phillips and the

Memorial—or whether Phillips knew that Sandmann might have been unaware of that fact. The

lack of clarity as to Sandmann’s understanding of the situation makes the blocking statements all

the more subjective in nature: based on the fact that Sandmann “stood in [Phillips’s] way,”

Phillips felt that he was “blocking” him and not “allowing” his retreat. There is no way to

determine what Sandmann’s intent was from the videos of the encounter, which approximate the

information available when Phillips made the blocking statements. See Cromity, 494 S.W.3d at

503-04 (defendant’s contention that he was not speeding was not provable as false where the

evidence available was defendant’s “word against” plaintiff’s).

Nos. 22-5734 /5735 Sandmann v. New York Times Co. et al. Page 16

/5736 /5737 /5738

The blocking statements are comparable to those in Macineirghe v. County of Suffolk,

No. 13-cv-1512, 2015 WL 4459456 (E.D.N.Y. July 21, 2015). There, the police were following

a man and his son, and the man fell down in front of a police car, which prevented the police

from pursuing the car his son was in. Id. at *3-4. A defendant who was present later provided a

witness statement that said, “[t]he older individual then blocked the police vehicle from

attempting to chase the [car]. I then saw the older man throw himself to the ground in an attempt

to fake being struck by a police car.” Id. at *7. Applying New York law (which, like Kentucky,

protects pure opinion but not mixed opinion), the court found as a matter of law that the

defendant’s assertion—“falling to the ground” was “an attempt to ‘block’ the car”—was pure

opinion based on the defendant’s observations of the man’s actions. Id. at *14; see Sandmann v.

WP Co., 401 F. Supp. 3d 781, 792-93 (E.D. Ky. 2019) (citing Macineirghe in initial grant of the

Washington Post’s motion to dismiss Sandmann’s defamation claim). Like the Macineirghe

statement, the blocking statements here reflect Phillips’s perception of Sandmann’s intent as

Sandmann stood on the Lincoln Steps.

The statement Phillips made to CBS is of a similar nature. Even if we assume that

Sandmann’s physical movements left or right are objectively verifiable, Phillips described those

movements as support for his conclusion that Sandmann “decided” he would not move aside and

“positioned himself to make sure that he aligned himself with [Phillips] so that he stopped [his]

exit.” Here, too, Phillips ascribed subjective intent to Sandmann’s conduct. See Restatement

§ 566 cmt. b (“[Pure opinion] occurs when the maker of the comment states the facts on which

he bases his opinion of the plaintiff and then expresses a comment as to the plaintiff’s

conduct[.]”).

Caselaw underscores the importance of considering Phillips’s statements in their totality

and in the context of the available evidence. Consider Milkovich, where a former Ohio high

school wrestling coach alleged defamation by a newspaper and reporter. 497 U.S. at 3-4. The

reporter had authored an article in a local newspaper claiming that the coach had lied under oath

at a state board proceeding. Id. at 4-5. On review, the Supreme Court held, in part:

[T]he connotation that petitioner committed perjury is sufficiently factual to be

susceptible of being proved true or false. A determination whether petitioner lied

Nos. 22-5734 /5735 Sandmann v. New York Times Co. et al. Page 17

/5736 /5737 /5738

in this instance can be made on a core of objective evidence by comparing, inter

alia, petitioner’s testimony before the [] board with his subsequent testimony

before the trial court.

Id. at 21 (emphasis added). The defamatory language in question was “an articulation of an

objectively verifiable event.” Id. at 22 (quoting Scott v. News-Herald, 496 N.E.2d 699, 707

(Ohio 1986)). We have interpreted Milkovich to stand for the proposition that “a viable

defamation claim exists only where a reasonable factfinder could conclude that the challenged

statement connotes actual, objectively verifiable facts.” Compuware, 499 F.3d at 529 (citing

Milkovich, 497 U.S. at 21). Here, videos showed Phillips walking forward into a crowded area,

multiple people moving out of his path, and Sandmann standing in front of Phillips. But whether

Sandmann “blocked” Phillips, did not “allow” him to retreat, or “decided” that he would not

move aside and “positioned himself” so that he “stopped” Phillips are all dependent on

perspective and are not “susceptible” of being proven true or false under the circumstances.6

Unlike the testimony in Milkovich, there is no “core of objective evidence” that allows us to

discern Sandmann’s intentions during the encounter.

Also consider Croce v. Sanders, 843 F. App’x 710 (6th Cir. 2021). There, Sanders

contacted the New York Times about statistical inaccuracies in scientific articles authored by

Croce. Id. at 712-13. The resulting New York Times article explained that Sanders “has made

claims of [Croce’s] falsified data and plagiarism directly to scientific journals.” Id. at 714. The

article then quoted Sanders, who said, “It’s a reckless disregard for the truth.” Id. Also, in the

process of his investigation, the journalist who authored the article had written a letter to Croce

and his university. That letter included a sentence with two allegedly defamatory statements:

“Dr. Sanders argues—because in his observation [1] the image fabrication, duplication and

mishandling, and plagiarism in Dr. Croce’s papers is routine . . . —that [2] Dr. Croce is

knowingly engaging in scientific misconduct and fraud.” Id. at 714-15 (emphasis omitted).

We held that Sanders’s quote in the article expressed his opinion because it used the term

“reckless,” an “imprecise” adjective which “signal[ed] to the listener that the speaker is

6

Phillips was not required to use qualifying terms to signal that he was relaying his perception of the

encounter. A statement that uses such terms “may still imply a false assertion of fact.” Milkovich, 497 U.S. at 19.

Nos. 22-5734 /5735 Sandmann v. New York Times Co. et al. Page 18

/5736 /5737 /5738

expressing a subjective point of view.” Id. at 714. As for the statements in the letter, we

explained that “[t]o say something is routine is to make an imprecise characterization that ‘lacks

a plausible method of verification.’” Id. at 715 (quoting Vail v. The Plain Dealer Publ’g Co.,

649 N.E.2d 182, 186 (Ohio 1995)). “[T]here is no objective line” that determines “[h]ow many

problems make something routine.” Id. “Instead, the line varies from speaker to speaker and

from context to context.” And, even though the second statement may have “look[ed] like a

statement of fact standing alone, the full sentence [made] clear that this statement [was] an

expression of Sanders’s opinion.” Id. (emphasis added). The statement, which was based on

Sanders’s observations, was “neither an assertion of fact nor a conclusion that follows

incontrovertibly from asserted facts as a matter of logic.” Id. It was “instead a subjective take

that is up for debate.” Id. The statement’s “broader context” reinforced that conclusion. Id. at

717.

As in Croce, Phillips’s statements that Sandmann “decided” he would not move aside,

“blocked” Phillips, would not “allow” him to retreat, and “positioned himself” so that he

“stopped” him are contextual and subjective, not “a conclusion that follows incontrovertibly

from asserted facts.” Id. at 716. Phillips’s statements expressed his subjective understanding of

the situation and of Sandmann’s intent, an understanding informed by the pair’s proximity, the

other students’ movement, and the lack of communication during the encounter.

Moreover, the statements appeared in stories that provided multiple versions and

descriptions of the events, putting a reasonable reader on notice that Phillips’s statements were

merely one perspective among many. The online articles at issue embedded or linked to some

version of the video, effectively disclosing the facts upon which Phillips’s opinion was based;

readers were able to determine for themselves whether they interpreted the encounter as

Sandmann deciding to block Phillips, positioning himself to stop him, or not allowing him to

retreat. And Gannett’s print articles also presented Phillips’s statements in a way that clearly

framed his statements as his own perspective of the incident. The Kenton Recorder, for instance,

explained that “[a]ccounts of the episode vary widely and the question of each party’s intent has

been hotly contested,” and that the “[initial] video alone only tells part of the story.” The article

then recounted the encounter in detail and provided accounts from both Sandmann and Phillips.

Nos. 22-5734 /5735 Sandmann v. New York Times Co. et al. Page 19

/5736 /5737 /5738

The other two print articles did not even include the allegedly defamatory statements, only

Phillips’s statement that he had tried to walk away.

Phillips’s statements are opinion, not fact. In making this finding, we are not engaging in

speculation or reading improper inferences into Phillips’s statements, as the dissent suggests.

Rather, we are engaging in the task required of us: a legal interpretation of Phillips’s statements

in their context within the News Organizations’ articles. The statements’ opinion-versus-fact

status is “not a question for the jury.” Cromity, 494 S.W.3d at 504.

Because the statements are opinion, they are protected by both the Constitution and

Kentucky law, and they are nonactionable. The district court did not err in so concluding.

2. Appellees’ Alternative Grounds

Appellees raise three alternative grounds for affirmance: (1) the statements are

substantially true; (2) the statements are not defamatory; and (3) Sandmann’s lawsuits are barred

by the Kentucky statute of limitations. Because the statements are nonactionable, we need not

address these grounds.

III. CONCLUSION

For the foregoing reasons, we AFFIRM the district court’s judgment.

Nos. 22-5734 /5735 Sandmann v. New York Times Co. et al. Page 20

/5736 /5737 /5738

_________________

DISSENT

_________________

GRIFFIN, Circuit Judge, dissenting.

These cases raise classic claims of defamation. Through their news reporting, defendants

portrayed plaintiff Nicholas Sandmann as a racist against Native Americans. Their

characterization of Nicholas was vicious, widespread, and false. Defendants’ common narrative

was readily accepted and effective to the extent that, on national television, NBC’s1 Today Show

host Savannah Guthrie asked the 16-year-old if he thought he “owe[d] anybody an apology” for

his actions and if he saw his “own fault in any way.”2 Moreover, the false portrayal of Nicholas

caused the Diocese of Covington to issue an apology for its parishioner’s actions. An apology

that was later retracted once the Diocese learned the truth.

The truth is depicted on eighteen stipulated videos of the incident, which unequivocally

show that 16-year-old Nicholas Sandmann did nothing more than stand still and smile while

confronted by a stranger.3

These cases should be submitted to a jury to decide the factual issue of whether each

defendant exercised reasonable care in its reporting. I disagree that summary judgment is

appropriate. In this regard, the majority opinion affirms the summary judgment granted in favor

of all defendants, not on the basis that their reporting was substantially true or that plaintiff was a

public figure necessitating a claim of malice, but on the ground that all the news articles were

opinion, not fact. I disagree and would reverse and remand for further proceedings.

1

Previously, NBC, CNN, and the Washington Post settled Sandmann’s defamation cases against them

following the denial on reconsideration of their motions to dismiss. Case No. 2:19-cv-19 (E.D. Ky.), R. 47, 64, 81

(Washington Post); Case No. 2:19-cv-31 (E.D. Ky.), R. 44–45, 69 (CNN); Case No. 2:19-cv-56 (E.D. Ky.), R. 43,

83 (NBC).

2

Case No. 2:19-cv-56 (E.D. Ky.), R. 23, ID 324; @TODAYshow, TWITTER

(Jan. 22, 2019, 5:36 PM), https://twitter.com/TODAYshow/status/1087841570479632384; Nick Sandmann speaks

out on viral encounter with Nathan Phillips, TODAY (Jan. 23, 2019), https://www.today.com/video/nick-sandmann-

speaks-out-on-viral-encounter-with-nathan-phillips-1430461507922.

3

The eighteen videos are accessible at https://www.opn.ca6.uscourts.gov/media/mediaopn.php.

Nos. 22-5734 /5735 Sandmann v. New York Times Co. et al. Page 21

/5736 /5737 /5738

In my view, the statements that Sandmann blocked Nathan Phillips’s ascension to the

Lincoln Memorial; prevented Phillips from retreating; and impeded Phillips’s movements by

stepping to his left and stepping to his right, were actions capable of objective verification.

Thus, because these events can be objectively verified, I would hold that the opinion exception to

the laws of defamation does not apply.

I.

Defendants are media entities that covered the incident at the Lincoln Memorial; none of

the reporters who wrote the news articles at issue witnessed the event. Many of the defamatory

statements are reprintings of the following statement Phillips gave 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.

Case No. 2:20-cv-23 (E.D. Ky.), R. 53-2, ID 729 (Affidavit of Nathan Phillips); Cleve

R. Wootson Jr., Antonio Olivo, and Joe Heim, ‘It was getting ugly’: Native American

drummer speaks on his encounter with MAGA-hat-wearing teens, THE WASHINGTON POST

(January 22, 2019) https://www.washingtonpost.com/nation/2019/01/20/it-was-getting-ugly-

native-american-drummer-speaks-maga-hat-wearing-teens-who-surrounded-him/. The articles

share a common narrative. Each title sets the tone and vilifies Sandmann; meanwhile, the

contents cast him in a negative light while often praising Phillips and embracing his version of

events as authoritative and factually accurate.

A.

Sandmann alleges that two versions of a January 19, 2019, article by the New York

Times Company were defamatory. The original headline was “Boys in ‘Make America Great

Again’ Hats Mob Native Elder at Indigenous Peoples March,” and the revised headline was

“Viral Video Shows Boys in ‘Make America Great Again’ Hats Surrounding Native Elder.” The

only other difference between them was a disclaimer at the beginning of the revised version:

“Interviews and additional video footage have offered a fuller picture of what happened in this

Nos. 22-5734 /5735 Sandmann v. New York Times Co. et al. Page 22

/5736 /5737 /5738

encounter, including the context that the Native American man approached the students amid

broader tensions outside the Lincoln Memorial. Read the latest article here.”

The article began with a video of Phillips facing Sandmann; its caption reported

Phillips’s false claim that the students chanted “build that wall” when he was in their midst and

editorialized that “[t]he episode . . . was widely condemned.”4 Without explaining that Phillips

approached the students, the article described an “unsettling encounter” with “a throng of

cheering and jeering high school boys, predominantly white and wearing [red] ‘Make America

Great Again’ gear, surrounding a Native American elder.” After noting that the students could

face school discipline up to expulsion, the article politicized the standoff: “In video footage that

was shared widely on social media, one boy, wearing the red hat that has become a signature of

President Trump, stood directly in front of the elder, who stared impassively ahead while playing

a ceremonial drum.”5

Next, the article quoted a statement by the Diocese of Covington and Covington Catholic

High School (where Sandmann was a student), apologizing for the incident. It then characterized

the event as “the latest touchpoint for racial tensions in America,” and stated that “[t]he episode

drew widespread condemnation from Native Americans, Catholics and politicians alike.” The

article then identified Phillips, quoted his Washington Post statement, and reiterated his claim

that the students chanted “build that wall.” After briefly discussing the Indigenous Peoples

March (an event to celebrate Native Americans and raise awareness as to that community’s

issues, which Phillips attended), the article closed by quoting the Kentucky Secretary of State,

who called the incident a “horrific scene[].”

4

Phillips gave an interview near the Lincoln Memorial Reflecting Pool after Sandmann walked away.

During the interview, Phillips claimed the Covington Catholic High School students chanted “build that wall.”

However, the audio of the video evidence demonstrates that the students did not make such a chant. “Build the

wall” is a reference to President Trump’s vow to secure the southern border by building a wall between the United

States and Mexico. Defendant New York Times has characterized “build the wall” as a “racist chant.” Case No.

2:20-cv-23 (E.D. Ky.), R. 1, ID 35; Jamelle Bouie, Trump’s Wall of Shame, THE NEW YORK TIMES (Jan. 24, 2019),

https://www.nytimes.com/2019/01/24/opinion/trump-wall-shutdown.html. The “build that wall” chant is not at

issue on appeal.

5

Sandmann bought his “Make America Great Again” hat that day as a souvenir after he and his classmates

visited the White House.

Nos. 22-5734 /5735 Sandmann v. New York Times Co. et al. Page 23

/5736 /5737 /5738

B.

Sandmann alleges that four articles by ABC News, Inc. were defamatory.

1.

ABC published its first article on January 20, 2019, with the headline “Viral video of

Catholic school teens in ‘MAGA’ caps taunting Native Americans draws widespread

condemnation; prompts a school investigation.” The article opened with the assertion that

“[o]utrage spread across the political spectrum” about the confrontation and stated that the

students “appeared to mock and chant over the voices of a small group of Native Americans.”

“The most jarring of several viral videos,” it proclaimed, showed Sandmann “stand[ing]

motionless and smirking for more [than] three minutes” at Phillips. It continued: “Phillips

remain[ed] outwardly placid and composed throughout the viscerally distressing confrontation.”

Focusing on Phillips, the article quoted his statement that students chanted “build that

wall,” followed by a picture of Sandmann captioned: “[a] diocese in Kentucky apologized” for

“a student in a ‘Make America Great Again’ hat mocking Native Americans outside the Lincoln

Memorial.” The article then reprinted the Washington Post statement before quoting an

unnamed student who stated that Phillips approached the students and Sandmann “didn’t say

anything or move—he just stood there.” It also stated that one witness claimed, “no one from

the Native American group instigated the episode.” Only then did the article mention that

Sandmann had released a written statement, noting that he “defended” his actions and he did not

hear “any students chant ‘build that wall’ or anything hateful or racist at any time.” The article

omitted the portion of Sandmann’s statement asserting that he did not block Phillips.

After describing reactions and “[f]ury” over the confrontation, the article included a

picture with an editorial caption: “students mock[ed] Native Americans outside the Lincoln

Memorial.” Next, a “conservative commentator[’s]” reaction was highlighted, calling the

students “#MAGA brats” whose behavior was in contrast with “the calm dignity and quiet

strength of Mr. Phillips.” The ABC article then compared the confrontation at the Lincoln

Memorial to an incident earlier in the week in which President Trump tweeted about “the

Wounded Knee Massacre and the Battle of Little Bighorn” and the negative reactions that

Nos. 22-5734 /5735 Sandmann v. New York Times Co. et al. Page 24

/5736 /5737 /5738

followed President’s Trump’s tweet. Finally, the article concluded with a quote from a journalist

“covering Native American issues,” who noted that Phillips had “been the subject of racism and

ridicule many times in his life” and “to see him stand there and maintain his composure and

resolve was just an incredible testament to his heart and his ability to be a warrior.”

2.

The same day, ABC published a second article with the headline “Teen accused of

taunting Native American protesters in viral video says he’s receiving death threats.” The

subheading stated “Sandmann was accused of mocking a Native American protester on Friday.”

A video at the top of the article was captioned: “The teens seen appearing to mock a group of

Native Americans that drew widespread condemnation revealed what allegedly happened before

and after the incident.”

The article’s body first quoted part of Sandmann’s statement, in which he said he had

“been falsely accused,” he “never interacted” with Phillips, and he “was startled and confused as

to why [Phillips] approached [him].” It then switched to Phillips’s version of events, noting that

he “said the teens yelled derogatory comments at him before the stare down took place.” The

article repeated Phillips’s false claim that students chanted “build that wall” and reprinted the

Washington Post statement. The article then noted that Sandmann refuted these claims, quoting

portions of his statement that no students chanted “build that wall” and no one tried to block

Phillips. After noting that Sandmann and his parents had received death threats because of the

confrontation, the article included an excerpt from the statement by the Diocese of Covington

and Covington Catholic condemning the students. The article concluded by returning to

Sandmann’s statement, noting that he “defended his actions” and “planned to cooperate with the

school’s ongoing investigation.”

3.

The next day, ABC published a third article, this time with the headline “Videos show

fuller picture of DC clash between high school students, Native Americans.” The article noted

that additional video showed the leadup to the confrontation with a group of Black Hebrew

Israelites (a religious group that advocates for racial separatism and views African Americans as

Nos. 22-5734 /5735 Sandmann v. New York Times Co. et al. Page 25

/5736 /5737 /5738

descendants from the Hebrews in the Bible; it was proselytizing loudly in the area with

aggressive and derogatory language). And it linked to Sandmann’s statement before quoting

Phillips as saying, “I realized I had put myself in a really dangerous situation.” Directly below

that quote, the article embedded a video with a caption noting that Phillips was “mocked and

taunted by a group of young men.” The article continued, stating that Sandmann “claim[ed] he

was the one trying to deescalate the situation.” It also noted that Sandmann thought the adults—

not the students—were to blame; yet the article asserted the video of the incident “gave many

who watched it a different impression.” The article then repeated Phillips’s claim that students

chanted “build that wall” and that Sandmann “wouldn’t let [Phillips] move.” After this, the

article switched back to Sandmann’s version of events, quoting him as saying that he “did not

see anyone try to block [Phillips’s] path.” The article concluded by noting that the Diocese of

Covington “apologized for the incident” and “promised to take ‘appropriate action, up to and

including expulsion.’”

4.

The fourth ABC article was also published on January 20, 2019, with the headline

“Students in ‘MAGA’ hats taunt indigenous elder, demonstrators in Washington: VIDEO.” A

video captioned “Jarring videos show a crowd of teenage boys sporting ‘Make America Great

Again’ hats as they seemingly intimidate and mock a group of Native Americans at the

Indigenous Peoples March in Washington, D.C.” appears before the article’s text. The article

itself opens by stating that Phillips “was seen in online video being taunted outside the Lincoln

Memorial.” After explaining that Phillips was trying to deescalate the conflict between the

Black Hebrew Israelites and the Covington Catholic students, the article noted that video showed

the students and Black Hebrew Israelites “taunt[ing]” each other. It then turned to Sandmann,

noting that video showed him “stand[ing] directly in front of and star[ing] at Phillips.” The

article reprinted part of Sandmann’s statement saying he was trying “to diffuse [sic] the

situation” by “remaining motionless and calm,” and that he “never felt like [he] was blocking”

Phillips. But the article also quoted another Native American protester who claimed he and

Phillips were attempting “to defuse the situation” by approaching the students. After quoting

Phillips’s claims that the students chanted “build that wall” and that he was blocked, it returned

Nos. 22-5734 /5735 Sandmann v. New York Times Co. et al. Page 26

/5736 /5737 /5738

to the other protester, who stated that he “feared the crowd could turn ugly,” although the

students eventually changed from “mocking [the Native Americans] and laughing” at them to

“singing with [them].” Right after this, the article quoted the unnamed student who claimed that

Sandmann “didn’t say anything or move—he just stood there. As time went on the man with the

drum got closer to his face.” The article concluded with the statement from the Diocese of

Covington apologizing to Phillips, criticizing the students, and stating that students could be

expelled.

C.

Sandmann alleges that a news clip and an article by CBS News, Inc. were defamatory.

1.

The January 20, 2019, CBS news clip opens with the anchor stating:

If you’ve been anywhere near your social media this weekend, checking in on

your phone, you may have seen a video that shows a group of high school

students in what appears to be a standoff with a Native American man on the

National Mall in Washington, D.C. The problem is the story as originally

reported is incomplete. We have more information that provides better context

and depth to what actually happened.

* * *

The problem is this video inflamed people who said, “How disrespectful of this

young man and the students.” There was a report that the students were chanting

“build the wall.”

The problem is there was another video nearly two hours in length, most of which

we have seen. And the context it provides suggests that the story is not as

originally reported.

We never heard the students saying, “Build that wall.” What we heard was a

chant among the students that appeared to be a sports chant, right? High school

students chanting as they were standing in front of this man who was beating his

drum.

Native American man seen in viral video of confrontation speaks out, CBS NEWS

(Jan. 20, 2019), https://www.cbsnews.com/video/native-american-man-seen-in-viral-video-of-

confrontation-speaks-out/.

Nos. 22-5734 /5735 Sandmann v. New York Times Co. et al. Page 27

/5736 /5737 /5738

He then interviewed Phillips, who stated:

[Sandmann] just stood in front of me, and when the others were moving aside and

letting me go, he decided that he wasn’t going to do that. You know, I tried to,

when I was coming up the steps, I seen [sic] him start putting himself in front of

me, so I slided [sic] to the right, and he slided [sic] to the right. I slided [sic] to

the left and he slided [sic] to the left—so by the time I got up to him, we were

right in front of him. He just positioned himself to make sure that he aligned

himself with me, so that sort of stopped my exit.

Id. (This will be called the “sliding statement” for ease of reference.) Phillips claimed that the

interaction lasted about three minutes and it ended when Sandmann walked away. As the

interview concluded, the anchor stated that Sandmann would likely “be disciplined” after

returning to school; Phillips said he thought the chaperones were responsible for the incident and

that he wanted Sandmann to “forgive himself,” which the anchor repeated and said was “a very

powerful statement.” Id. After the interview with Phillips ended, the anchor reiterated that the

original story was incomplete, the students might be “disciplined, possibly even expelled,” and

that Phillips inserted himself in the group of students to try to defuse tensions with the Black

Hebrew Israelites. Id.

2.

CBS also published an article the same day with the headline “Native American veteran

in viral video of confrontation speaks out.” The article opened with Phillips’s statement that he

“inserted himself between the students and a small group of African American protesters, known

as the [B]lack Hebrew Israelites, to diffuse [sic] the situation.” It then included a portion of

Sandmann’s statement asserting that the students performed school chants in response to the

Black Hebrew Israelites and noted that, according to Sandmann, he “didn’t speak to Phillips, nor

did anyone block [Phillips’s] path.” Next, the article quoted Phillips’s sliding statement and

noted that Phillips thought the chaperones were responsible for the event. It then noted that

“[t]he Diocese of Covington and Covington Catholic High School said the incident is being

investigated and they would ‘take appropriate action, up to and including expulsion.’” The

article concluded with Phillips’s statement that he hoped Sandmann could forgive himself.

Nos. 22-5734 /5735 Sandmann v. New York Times Co. et al. Page 28

/5736 /5737 /5738

D.

Sandmann alleges that nine articles published by affiliates of Gannett Co., Inc., were

defamatory: two print and three online articles by The Cincinnati Enquirer, one print and one

online article by The Detroit Free Press, and a single online article each by The Louisville

Courier-Journal and The Tennessean.

1.

The first online article by The Cincinnati Enquirer was published on January 19, 2019,

and updated on January 20, 2019, with the headline “NKY Catholic school faces backlash after

video of incident at Indigenous Peoples March surfaces.” The article began by stating that the

students “surrounded, intimidated and chanted over Native Americans” during the confrontation.

It then noted that Sandmann “stood nearby [Phillips] and stared at him” during the incident,

before including part of Sandmann’s statement asserting that he “never interacted with” Phillips

and that “by remaining motionless and calm, [Sandmann believed he] was helping to diffuse

[sic] the situation.”

After this opening, the article stated, “Phillips initially approached the students in an

attempt to defuse the situation.” “But he was quickly swarmed.” The article then quoted the

Washington Post statement, which was immediately followed by part of Sandmann’s statement

saying he did not block Phillips. Following these statements, the article quoted Phillips’s false

claim that students chanted “build that wall.”

It then included part of the Diocese of Covington’s statement apologizing to Phillips and

saying that it would investigate and potentially expel the students. Next, the article mentioned

President Trump’s then-recent tweet about the Wounded Knee Massacre and the Battle of Little

Bighorn and concluded with a lengthy discussion of reactions to the incident on social media,

which all unflinchingly criticized Sandmann and the other students. This included a reaction

from a Mohawk tribe member noting that Phillips “has been the target of racial animosity in the

past.”

Nos. 22-5734 /5735 Sandmann v. New York Times Co. et al. Page 29

/5736 /5737 /5738

2.

The second online article by The Cincinnati Enquirer was published on January 20, 2019,

and was essentially identical to the first print article by The Cincinnati Enquirer, published four

days later on January 24, 2019. The print article’s headline was “Video being analyzed from

incident in Washington, DC,” and the online headline was “Analysis: What the video from the

incident at the Indigenous Peoples March tell us about what happened.”

The online version6 began by stating that videos of the standoff had “sparked intense

debate” and noting that “The Enquirer has reviewed video, shot from different angles, and paired

it with interviews and other information to help bring clarity to what transpired.” The article

characterized Phillips as “the indigenous man surrounded by students in the video that sparked

the outcry” and linked to Sandmann’s statement. It then addressed videos of the event,

explaining that “[t]he initial video” showed Sandmann “in a ‘Make America Great Again’ hat,

standing very close to and staring at Phillips while Phillips played the drum and chanted,” while

“[t]hey were surrounded by a larger group of students whose chants drowned out” Phillips. But

then the article noted that the “[initial] video alone only tells part of the story” because additional

video showed the prior interaction between the students and the Black Hebrew Israelites.

Phillips was then quoted, explaining that he approached the students because they were

“attacking” the Black Hebrew Israelites. The article immediately refuted that claim: “[n]one of

the videos show students attacking the Black Hebrew Israelites.” Turning to the confrontation

itself, the article stated that “the crowd of students” “circled [Phillips] and began clapping and

cheering” as Sandmann “stood in front of Phillips with a smirk on his face, . . . [with the two]

nearly touching as Phillips sang and beat his drum.” Part of the Washington Post statement was

then included, which was immediately followed by Sandmann’s statement that he did not block

or interact with Phillips. The article then stated that the crowd began to separate after Sandmann

walked away. It concluded by noting some final interactions between the students and the Black

Hebrew Israelites.

6

In this and similar situations, I will focus on the online articles to avoid unnecessary repetition.

Nos. 22-5734 /5735 Sandmann v. New York Times Co. et al. Page 30

/5736 /5737 /5738

3.

The third online article by The Cincinnati Enquirer was published on January 24, 2019,

and its corresponding second print article was published the next day. The print headline was “I

still have forgiveness in my heart,” and the online headline was “Nathan Phillips on ‘Today’

show: ‘I still have forgiveness in my heart.’”

These articles related to an interview Phillips gave on the Today Show the day after

Sandmann’s corresponding Today Show interview. The online article began by stating that

Phillips approached the students to defuse the situation with the Black Hebrew Israelites before

noting that, despite his anger at the event, he would forgive the students. After this introduction,

the article stated that Phillips believed Sandmann should apologize; continued to claim that the

students chanted “build that wall”; and explained that he was “trying” to walk away from the

confrontation but that Sandmann “stood in his way.” The article continued by stating that

Phillips “felt that [Sandmann’s] statement was coached and lacked sincerity and responsibility,”

and quoted Phillips as saying that he “believe[d] there [were] intentional falsehoods in his

testimony,” although it is unclear whether this refers to Sandmann’s statement or his appearance

on the Today Show. The article next cited Sandmann’s Today Show statement that he was “not

sorry for standing in front of Phillips, with what some have characterized as a smirk on his face.”

It concluded by quoting Phillips saying that Sandmann “needs to put out a different statement”

because he “didn’t accept any responsibility.”

4.

The Detroit Free Press published an online article on January 24, 2019, and an essentially

identical print version the next day. The online article’s headline was “Nathan Phillips on

‘Today’ show: Student’s explanation felt insincere”; the print headline was “Phillips on ‘Today’

show: Student seemed insincere.”

These articles were about Phillips’s interview with the Today Show. Before addressing

the encounter, the online article noted that Sandmann’s interview “upset” Phillips. It explained

that Phillips approached the students following their interaction with the Black Hebrew Israelites

and that he “described [that] encounter as threatening.” The article stated that, “[w]hile

Nos. 22-5734 /5735 Sandmann v. New York Times Co. et al. Page 31

/5736 /5737 /5738

Sandmann said he wished . . . the students had walked away, Phillips explained he tried to walk

away and was blocked.” After explaining Phillips’s version of how he was blocked in more

detail, the article concluded by stating that, “although [Phillips] is upset about the issue, he has

forgiveness for the students and even the chaperones who were there.”

5.

The Louisville Courier-Journal article was published on January 19, 2019, and was

primarily about a reaction from Stormy Daniels to the incident.7 Headlined “Stormy Daniels

calls out ‘disgusting punks’ from Covington Catholic,” the article reported:

Daniels weighed in Saturday on the incident involving Covington Catholic High

students after video surfaced showing a young man in a “Make America Great

Again” cap trying to intimidate a Native American elder. Dozens of Covington

students can be seen jeering and chanting along.

“I’m suddenly in favor of building a wall . . . around Covington Catholic High in

KY,” wrote Daniels, legally known as Stephanie Clifford, on Twitter. “And let’s

electrify it to keep those disgusting punks from getting loose and creating more

vileness in society.”

The article then noted that the Diocese of Covington “condemned the actions of the students

against” Phillips “after millions of people viewed videos of incident [sic], many expressing their

outrage on social media.” It concluded with the Washington Post statement.

6.

The Tennessean article was published on January 30, 2019, with the headline “Covington

school kids intimidated Native Americans. Who taught them that? | Opinion,” and the

subheading “The confrontation between Covington Catholic High School students and a Native

American elder exposed ignorance and blatant racism.”

The article criticized the students, calling them a “mob” of “young villains” who engaged

in “loathsome conduct” when they “shout[ed] and chant[ed] at Phillips” and performed “racist,

mock Indian dances.” It also specifically targeted Sandmann, editorializing that he had “a

7

Stormy Daniels is a former adult film actress who alleges that she had an affair with Donald Trump

sixteen years ago.

Nos. 22-5734 /5735 Sandmann v. New York Times Co. et al. Page 32

/5736 /5737 /5738

disgusting smirk” during the confrontation. Sandmann, according to an eyewitness, “refused to

let [the Native American protesters] pass” while they were, in the article’s eyes, “surrounded by

a sea of white youth.” The article stated people must “disbelieve their own eyes” and be

“blinded by racism” to “defen[d] the indefensible”—meaning Sandmann’s actions. It concluded

by stating that, “If anything, perhaps this episode will help to expose and root out that bevy of

racism that is Covington Catholic. This school is emblematic of the social malignancy that is a

festering sore on the body politic of America.”

E.

The Rolling Stone, LLC, article was published on January 22, 2019, with the headline

“Trump Comes to the Rescue of the MAGA Teens” and the subheading “Right-wing media is

using confusion over what exactly happened to paint the Covington Catholic teenagers as

victims.”

The article described the confrontation as Sandmann “standing face-to-face with Phillips”

amid “a rowdy group of students” who were “taunt[ing]” Phillips. It then noted that, after

Sandmann released his statement, “[t]he media ate it up, walking back previous headlines in

deference to the narrative put forth by Sandmann.” Next, the article focused on President

Trump’s response to the event and its media coverage before paraphrasing Sandmann’s

statement and his claim that Phillips approached him; the article did not mention Sandmann’s

assertion that he did not see anyone block Phillips. The article then stated that Phillips “disputed

Sandmann’s account, as have other videos of the incident showing Covington students circled

around Phillips, who said he felt threatened.” Phillips’s Washington Post statement was then

quoted, before the article stated that the videos “show a bunch of teens in #MAGA gear

aggressively mocking a Native American” and criticized the “[r]ight-wing media” for siding with

the students in the incident, which it hypothesized was because the students were “predominantly

white.” The article then included three tweets critical of sympathy toward Sandmann and the

other students before concluding by saying the students would hopefully “live to regret their

behavior,” but that this was unlikely in “Trump’s America.”

Nos. 22-5734 /5735 Sandmann v. New York Times Co. et al. Page 33

/5736 /5737 /5738

II.

Sandmann filed separate—but substantially similar—complaints against defendants the

New York Times, ABC, CBS, Gannett, Rolling Stone, and their affiliates. He alleged that

defendants defamed him by falsely reporting that he blocked Phillips’s ascension to the Lincoln

Memorial and prevented Phillips from retreating from the encounter. In addition, Sandmann’s

complaint against CBS included a claim that CBS falsely reported that Sandmann impeded

Phillips’s movements by stepping to his left and stepping to his right. The district court granted

summary judgment in defendants’ favor, ruling that all the news articles were opinion, not

statements of fact, and therefore exempt from the laws of defamation. Sandmann has appealed.8

III.

Sandmann argues that the blocking, retreating, and sliding statements were objectively

verifiable and, therefore, factual statements capable of defamatory meaning. I agree.

We review de novo the district court’s grant of summary judgment. Wilmington Tr. Co.

v. AEP Generating Co., 859 F.3d 365, 370 (6th Cir. 2017). Summary judgment is appropriate

only if “the movant shows that there is no genuine dispute as to any material fact and the movant

is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). We view the record in the light

most favorable to the nonmovant. Wilmington Tr. Co., 859 F.3d at 370. Furthermore, where

there is “undisputed video evidence,” such evidence can be used to disregard other statements

that are “blatantly and demonstrably false.” Boykin v. Family Dollar Stores of Mich., LLC, 3

F.4th 832, 842 (6th Cir. 2021).

8

Three additional issues raised in this appeal are without merit. First, I agree with the majority opinion that

the law-of-the-case doctrine does not apply. Second, although not addressed by the majority, the statute of

limitations does not bar Sandmann’s claims because it was tolled while Sandmann was a minor. See Ky. Rev. Stat.

Ann. § 413.140(1)(d); Ky. Rev. Stat. Ann. § 413.170(1); Fann v. McGuffey, 534 S.W.2d 770, 778 (Ky. 1975);

Hammers v. Plunk, 374 S.W.3d 324, 331 (Ky. Ct. App. 2011) (en banc). Finally, the eighteen videos of the incident

demonstrate defendants’ reporting was not true, and the truth of the incident is too integral to the videos for the

substantially true doctrine to apply. See Ky. Kingdom Amusement Co. v. Belo Ky., Inc., 179 S.W.3d 785, 791–92

(Ky. 2005); Bell v. Courier-J. & Louisville Times Co., 402 S.W.2d 84, 87 (Ky. 1966).

Nos. 22-5734 /5735 Sandmann v. New York Times Co. et al. Page 34

/5736 /5737 /5738

“[S]tatements that cannot reasonably be interpreted as stating actual facts about an

individual” are statements of opinion, not fact, and are exempt from the laws of defamation.

Milkovich v. Lorain J. Co., 497 U.S. 1, 20 (1990) (internal quotation marks and brackets

omitted). The use “of loose, figurative, or hyperbolic language . . . [can] negate the impression

that the writer was seriously maintaining” a factual assertion, as can an article’s “general tenor.”

Id. at 21. “Put differently, a viable defamation claim exists only where a reasonable factfinder

could conclude that the challenged statement connotes actual, objectively verifiable facts.”

Compuware Corp. v. Moody’s Inv. Servs., Inc., 499 F.3d 520, 529 (6th Cir. 2007); see also

Milkovich, 497 U.S. at 21 (statement that the plaintiff committed perjury was not opinion

because it was “sufficiently factual to be susceptible of being proved true or false” based on

“objective evidence”).

Under Kentucky law, “[a] defamatory communication may consist of a statement in the

form of an opinion, but a statement of this nature is actionable only if it implies the allegation of

undisclosed defamatory fact as the basis for the opinion.” Yancey v. Hamilton, 786 S.W.2d 854,

857 (Ky. 1989) (quoting Restatement (Second) of Torts § 566 (1977)). While “[p]ure opinion”

is “absolutely privileged,” a mixed fact-and-opinion statement is not, as long as the statement

“may reasonably be understood to imply the assertion of undisclosed facts which may justify the

expressed opinion about the undisclosed facts.” Id. (citation omitted). By contrast, factual

statements are always capable of defamatory meaning. See id. at 857–58. We must consider the

statements in “context” and construe them “as a whole” when considering whether they are facts

or opinions. Id. at 857 (citation omitted).

Caselaw establishes a few helpful guideposts for this fact-intensive analysis. For

example, a statement couched in qualifying terms suggests that it is an opinion. See Williams v.

Blackwell, 487 S.W.3d 451, 453, 455–56 (Ky. Ct. App. 2016) (holding that the statements “it

appears that the current reimbursement policy is excessive and a poor use of public funds” and

“the possible profit that the Sheriff received from managing his office vehicle fleet could be

interpreted to be in excess of his statutory maximum salary limit” are opinions). Meanwhile,

some statements are so subjective that they need not be couched in such terms to be opinion

statements. See Cromity v. Meiners, 494 S.W.3d 499, 503–04 (Ky. Ct. App. 2015) (concluding

Nos. 22-5734 /5735 Sandmann v. New York Times Co. et al. Page 35

/5736 /5737 /5738

that statements alleging that “[the plaintiff] is a liar” was an opinion); Biber v. Duplicator Sales

& Serv., Inc., 155 S.W.3d 732, 737–38 (Ky. Ct. App. 2004) (saying that the plaintiff’s conduct

“was throwing up red flags,” an employee for the defendant “felt like he had been conned by the

world’s greatest con man,” and the company “would be straightened out as soon as we get rid of”

the plaintiff were all opinions (internal quotation marks omitted)).

That a third party (Phillips) made the statements also does not shield defendants from

liability for its reporting. The Kentucky Supreme Court has rejected the neutral reportage

doctrine—which would grant defamation immunity to publishers for reprinting “newsworthy

statements.” McCall v. Courier-J. & Louisville Times Co., 623 S.W.2d 882, 886–87 (Ky. 1981)

(per curiam) (quotation marks omitted). Even though Phillips—a non-party in this litigation—

made the “blocking,” “retreating,” and “sliding” statements, defendants may be liable for

republishing those false statements.

These cases are commonsense applications of a simple question: are the statements

objectively verifiable? Reading fairly the blocking, retreating, and sliding statements leads to an

unequivocal “yes.” Begin and end by reviewing the videos. The videos show that, while

Nicholas Sandmann was standing still, Phillips walked up to him, played his drum, and sang

inches from Sandmann’s face. The 16-year-old’s only reaction to this unexpected approach by

an adult whom he did not know was to smile. During the roughly six-minute encounter initiated

by Phillips, a gap in the crowd developed through which Phillips could have walked past or away

from Sandmann had he chosen to do so. Phillips did not do so; instead, he remained where he

chose to confront the 16-year-old boy only inches from his face.

Next, consider what the statements are about: the physical positioning of Phillips and

Sandmann. Then ask whether physical positioning is objectively verifiable. It certainly is. And

here, the video evidence conclusively demonstrates that Phillips’s narrative is indeed “blatantly

and demonstrably false.” Boykin, 3 F.4th at 842.

Nos. 22-5734 /5735 Sandmann v. New York Times Co. et al. Page 36

/5736 /5737 /5738

The majority opinion holds that the blocking, retreating, and sliding statements were

likely Phillips’s subjective impressions of Sandmann’s intent. Such speculation is contrary to the

text of the news stories, which do not state that they are reports of Phillips’s perception of

Sandmann’s intent.

These are three statements that the majority holds are opinion:

1. “I started going that way, and that guy in the hat [Sandmann] stood in my way

and we were at an impasse . . . .”

2. “He [Sandmann] just blocked my way and wouldn’t allow me to retreat.”

3. “I seen [sic] him start putting himself in front of me, so I slided [sic] to the

right, and he slided [sic] to the right. I slided [sic] to the left and he slided

[sic] to the left—so by the time I got up to him, we were right in front of him.

He just positioned himself to make sure that he aligned himself with me, so

that sort of stopped my exit.”

Rather than construing the text of these statements with their plain meaning, the majority

rewrites these news articles as if defendants had reported that Phillips perceived that Sandmann

intended to block his way, intended to prevent his retreat, and intended to slide to his left and

right. The majority’s creative journalism is apparently based on its inference that defendants

meant to report that Phillips was recounting his perceptions of Sandmann’s intentions.

In the words of the majority opinion, “Phillips felt that he [Sandmann] was ‘blocking’

him and not ‘allowing’ his retreat. There is no way to determine what Sandmann’s intent was

from the videos of the encounter, which approximate the information available when Phillips

made the blocking statements.” However, contrary to the majority’s rewrite, the articles do not

report Phillips’s feelings or perceptions. Rather, the articles report a factual encounter as recited

by Phillips.

Similarly, the majority rewrites the reporting of Sandmann’s actions of sliding to the right

and sliding to the left as Phillips’s perception of Sandmann’s intent. (“Here, too, Phillips

ascribed subjective intent to Sandmann’s conduct.”). Again, the news stories do not cabin their

factual recitations as being Phillips’s perceptions or feelings.

Nos. 22-5734 /5735 Sandmann v. New York Times Co. et al. Page 37

/5736 /5737 /5738

In my view, the inferences created by the majority are not reasonable and are inconsistent

with the plain wording of the text of defendants’ news reports. Moreover, such inferences are

contrary to our summary judgment rule that provides that all reasonable inferences must be

construed in favor of the nonmoving party—Sandmann—not in favor of the moving party—

defendants. Wilmington Tr. Co., 859 F.3d at 370. The majority’s divergent approach—reading

inferences into Phillips’s statements—wrongly views the record evidence on summary judgment

in defendants’ favor.

When describing Sandmann’s physical actions, Phillips never used qualifying terms like

“I think” or “it seemed” or “I felt” that would have suggested he was relaying his perceptions,

feelings, or opinions. Cf. Blackwell, 487 S.W.3d at 453, 455–56. Instead, he recited, and

defendants reported, a straightforward factual account of events: Phillips approached Sandmann;

thereafter Sandmann moved to his left and his right, blocked him, and prevented his retreat.

Whether Sandmann did so is objectively verifiable.

The majority’s further reliance on distinguishable and nonbinding caselaw is not

persuasive. For example, in Macineirghe v. County of Suffolk, a district court ruled that a

defendant’s statement that a man “blocked” a police car to prevent it from pursuing a fleeing

suspect was an opinion. No. 13-cv-1512, 2015 WL 4459456, at *13–14 (E.D.N.Y. July 21,

2015). But that court never addressed whether that statement was objectively verifiable and,

therefore, did not engage with the analysis at issue here. Id. at *10, 13–15. Similarly unhelpful

is our unpublished opinion in Croce v. Sanders, 843 F. App’x 710 (6th Cir. 2021). At issue there

were statements about whether the plaintiff had engaged in dishonest research. Id. at 712–13.

But honesty is determined by an inherently subjective value judgment, not an objective factual

inquiry like physical positioning. The statements in Croce are fundamentally different from

those here. Neither case engaged in a materially similar fact-versus-opinion analysis as we have

here, so neither is persuasive nor applicable.

In sum, facts matter. The video evidence shows that Phillips initiated an encounter with a

16-year-old boy. In response to this action from a stranger, Nicholas Sandmann did nothing

more than stand still and smile. At bottom, the blocking, retreating, and sliding statements

Nos. 22-5734 /5735 Sandmann v. New York Times Co. et al. Page 38

/5736 /5737 /5738

reported by defendants were “sufficiently factual to be susceptible of being proved true or false”

based on “objective evidence,” Milkovich, 497 U.S. at 21, and thus statements of fact. Moreover,

the statements were not qualified to the effect that they were Phillips’s perceptions of

Sandmann’s intent. On the contrary, the text of the statements reported by defendants were that

Sandmann had so acted.

IV.

For these reasons, I respectfully dissent. I would reverse the grant of summary judgment

and remand for further proceedings.