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Elizabeth Warren Beats Covington Students’ Defamation Suit

Sept. 3, 2020, 7:40 PM

Sen. Elizabeth Warren (D-Mass.) and Rep. Deb Haaland (D-N.M.) shook off defamation claims by a group of Catholic high school students from Kentucky over tweets related to a January 2019 incident on the National Mall, after the Sixth Circuit held they are immune from the lawsuit.

The legislators are immune from suit as federal employees under an amendment to the Federal Tort Claims Act, because they were acting within the scope of their employment when they sent the allegedly defamatory tweets, the U.S. Court of Appeals for the Sixth Circuit said Thursday.

Applying Kentucky law and ruling on an issue of first impression in the circuit, the court said “it is clear that the tweets were made in furtherance of the interests of defendants’ employers.”

The tweets “were calculated to serve the interests of defendants’ constituents (i.e., employers) by informing them of defendants’ views regarding a topical issue and related legislation,” the court said.

The suit stems from an interaction between the students, who attended Covington Catholic High School in Park Hills, Ky., and Native American activist Nathan Phillips near the Lincoln Memorial.

The students allege Phillips joined them “as they engaged in school cheers,” including renditions of the Haka—a traditional Maori dance—and the “sports chant of the Florida State Seminoles and the Atlanta Braves, with their famous tomahawk chop,” the court said.

The plaintiffs claim that in doing so they “joined with Phillips"—who was beating a drum and chanting a traditional Native American song, the court said.

Some early reactions to Phillips’ interaction with the students had accused the students of being disrespectful to Phillips, including the lawmakers’.

Haaland tweeted that “The students’ display of blatant hate, disrespect, and intolerance is a signal of how common decency has decayed under this administration. Heartbreaking.”

Warren tweeted, “Omaha elder and Vietnam War veteran Nathan Phillips endured hateful taunts with dignity and strength, then urged us all to do better. Listen to his words.”

In separate litigation, plaintiff Nick Sandmann, a then-16-year-old Covington student highlighted in a viral video of the incident standing face-to-face with Phillips, sued The Washington Post, CNN, and other outlets for defamation. The cases against CNN and the Post both ended in undisclosed settlements.

Judge Eric L. Clay wrote the opinion, joined by Judges Helene N. White and Chad A. Readler.

Barnes Law LLP represented the plaintiffs. The Office of General Counsel U.S. House of Representatives represented Haaland. Perkins Coie LLP represented Warren.

The case is Doe v. Haaland, 6th Cir., No. 19-06347, 9/3/20.

To contact the reporter on this story: Peter Hayes in Washington at PHayes@bloomberglaw.com

To contact the editor responsible for this story: Rob Tricchinelli at rtricchinelli@bloomberglaw.com