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CNN Defends Reporting on Covington Catholic, Tribal Elder Clash

May 16, 2019, 3:51 PM

CNN fired back at the Kentucky teenager who sued the network for $275 million over its reporting on his confrontation with an American Indian elder.

Nicholas Sandmann, who was wearing a Make America Great Again hat during the widely viewed incident, has accused CNN of “vilifying and bullying him” to push an anti-Trump agenda. The network recklessly advanced the false story that he was the ringleader of a racist mob of white students chanting “build that wall,” the lawsuit claims. The chant is a favorite at President Donald Trump’s rallies.

CNN defended its reporting in a May 15 motion to dismiss the suit.

“It is not defamatory to say that Sandmann expressed support for the president or that he echoed a signature slogan of a major political party,” the motion said.

Sandmann, a Covington Catholic High School student who was on a school trip to the anti-abortion March for Life event, has also sued the Washington Post for $250 million and NBC for $275 million.

According to CNN, 40 of the 53 statements cited in Sandmann’s complaint are not about him at all, and the others are either true or opinions that can’t form the basis of a defamation claim.

“Characterizing a young man’s ‘tomahawk chop’ toward a Native American as mockery cannot give rise to a defamation claim,” the dismissal motion said. Saying he “smirked” at the elder, Nathan Phillips, also isn’t actionable “because whether Sandmann was ‘smirking’ or ‘smiling’ is beyond adjudication,” the network said.

Although CNN ran editorial content calling Sandmann a racist, courts have repeatedly held that “racist” is a subjective label that’s not defamatory because it can’t be proven true or false, according to the motion. And a report that the Covington Catholic group “surrounded” Phillips simply stated a fact, CNN said.

According to Sandmann’s complaint, due diligence would have shown that he and his classmates were only performing school chants to drown out heckling by a nearby group of Black Hebrew Israelites. Phillips approached the group on his own and “proceeded to target Nicholas,” the suit says.

CNN challenged those claims. The network reported on the hecklers, Sandmann’s public statements defending himself, and statements supporting the students issued by Covington Catholic, the motion said.

Sandmann’s public defense also included false statements, according to the dismissal motion. For instance, he denied making the tomahawk chop gesture, but video footage shows him making it, CNN said.

Moreover, most of the statements cited in the lawsuit are about Covington Catholic students generally, and Kentucky law doesn’t recognize “group defamation,” the network said.

Sandmann is represented by L. Lin Wood PC and Hemmer DeFrank Wessels PLLC. CNN is represented by Keating Muething & Klekamp and Ballard Spahr LLP.

The case is Sandmann v. Cable News Network Inc., E.D. Ky., No. 19-cv-31, motion to dismiss filed 5/15/19.

To contact the reporter on this story: Mike Leonard in Washington at mleonard@bloomberglaw.com

To contact the editors responsible for this story: Jo-el J. Meyer at jmeyer@bloomberglaw.com; Steven Patrick at spatrick@bloomberglaw.com

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