“statements that plaintiff ‘blocked’ Phillips or did not allow him to retreat, if false, meet the test of being libelous per se”

On October 28, 2019, we reported on a stunning development in Nicholas Sandmann’s previously dismissed lawsuit against The Washington Post, Judge Reopens Nicholas Sandmann lawsuit against Washington Post.

See that post for background on the case, and the judge’s ruling. I noted:

While on the surface a relatively narrow ruling, reopening only a limited number of factual claims, it is in fact a big win for Sandmann. His attorneys now get to take discovery on the WaPo process that went into the story. That inquiry will not be limited to the three factual statements, because the process by which those statements made it into the WaPo reporting is the same process by which all the dismissed statements were reported. The entire process will be subject to depositions and document discovery. Sandmann’s attorneys likely will find facts to bolster a number of their claims, so expect a Second Amended Complaint with the results of the discovery process.

The same judge has ruled in similar cases against CNN and NBC, and allows the cases to move forward on the same basis as the WaPo case. (Click for pdfs. the CNN Order and NBC Order.)

As to CNN, the Court ruled:

As in the Washington Post case, the Court believes that discovery is necessary to determine what happened in the unfortunate events which give rise to this litigation, and, to determine whether defendant accurately reported them, and, if it failed to do so, whether the failure was due to negligence or malice. Naturally, following a sufficient period for discovery, these issues will again be reviewed at the summary judgment phase under a more stringent standard.

As to NBC, the Court ruled:

Therefore, as in the two related cases, the Court finds that the statements that plaintiff “blocked” Phillips or did not allow him to retreat, if false, meet the test of being libelous per se under the definition quoted above.

As can be seen, in all three cases the only surviving claim is as to the allegation that Sandmann blocked Phillips. That’s a narrow issue on the surface, but it’s an issue Sandmann’s lawyers could drive a truck through because they get discovery of the entire news process that led up to the reporting — and who knows what they might find that would allow for trying to reinstate the other claims.

Sandmann’s lawyer, Lin Wood, touted the rulings on Twitter:

As predicted, today Judge Bertelsman entered an order allowing the Nicholas Sandmann case against NBCUniversal to proceed to discovery just as he had earlier ruled with respect to WaPo & CNN cases. Huge, huge win! — Lin Wood (@LLinWood) November 21, 2019



