Opinion vs. Libel

A Washington Post article describes court action in a $250 libel suit a Kentucky high school student brought against the Washington Post. This illustrates how fuzzy the line between libel and opinion can be.

U.S. District Judge William O. Bertelsman ruled that seven Post articles and three of its tweets bearing on Nicholas Sandmann — who was part of a group of Catholic students from Kentucky who came to Washington to march against abortion — were protected by the First Amendment. In analyzing the 33 statements over which Sandmann sued, the judge found none of them defamatory; instead, the vast majority constituted opinion, he said.

“Few principles of law are as well-established as the rule that statements of opinion are not actionable in libel actions,” Bertelsman wrote, adding that the rule is based on First Amendment guarantees of freedom of speech. “The statements that Sandmann challenges constitute protected opinions that may not form the basis for a defamation claim.”

Sandmann’s parents, who brought the suit on their son’s behalf, said they would appeal. “I believe fighting for justice for my son and family is of vital national importance,” Ted Sandmann said in a statement. “If what was done to Nicholas is not legally actionable, then no one is safe.”

In his suit, Nicholas Sandmann claimed that the “gist” of The Post’s first article, on Jan. 19, was that he “assaulted” or “physically intimidated Phillips” and “engaged in racist conduct” and taunts.

“But,” the judge wrote, “this is not supported by the plain language in the article, which states no such thing.”

What is the standard for libel?: WaPo writes that “the judge’s opinion cited case law noting that statements must be ‘more than annoying, offensive or embarrassing’. They must expose the allegedly libeled party to public hatred, ridicule and contempt, among other damaging elements. ‘And while unfortunate, it is further irrelevant that Sandmann was scorned on social media’, the judge wrote.”

One can see at least one basis for an appeal in the judge’s comment that Sandmann was scorned on social media. These days, polarized people tend to react or over react on social media. That arguably amounts to exposure to public hatred, ridicule and/or contempt. The Supreme Court, being the polarized political beast it is now, could rule 5-4 against the WaPo, arguing that the scorn Sandmann was subject to on social media amounted to libel.

The WaPo’s defense, i.e., everything it reported was either true, was opinion and/or was not directed at Sandmann, will be seen through the eyes of partisan Supreme Court judges. Being human, judges cannot help but see truth and non-truth through their own personal filters. When political partisans are picked for judges, one gets partisan result s based on partisan versions of facts, non-facts, truth and non-truth.

Just how thick or thin is the ice that America's free press skates on? Maybe this case will shed some light on that in a couple of years. If President Trump has his way, the WaPo would lose and be sued into oblivion. Will Trump judges feel the same way? That’s the interesting question.

B&B orig: 7/27/19