Media Giants Collectively Resist Maine’s Plan to Offer Cable Consumers A La Carte Services

Comcast of Maine/New Hampshire, et al. v. Governor of Maine, et al., No. 19-cv-410 (D. Me).  Complaint filed September 6, 2019.


Maine enacted a statute that requires cable service providers to offer single servings of media to consumers.  Media giants, whether in the provision of technology or content, or a mix of both, denounce this plan as an impermissible encroachment on the federal scheme governing media nationally and as an impermissible imposition of content restriction in violation of the corporations’ First Amendment rights.

Cable provider Comcast, joined by news and media networks, has filed an action against Maine and several of its townships to obtain declaratory and injunctive relief.

Preemption Claim.  Federal law governing communications expressly preempts state law in the regulation of cable services.  Even if the state law were not specifically preempted, the Maine law would fail because of conflict preemption.  A carrier cannot comply with the federal scheme, which recognizes the provision of services in ‘tiers’ from basic channels to more enhanced, and comply with the selective services contemplated by Maine.  

First Amendment Claim.  The carriers and providers assert that they negotiate broadcast and copyright and packaging agreements in contemplation of the tiers of service hierarchy.  These choices reflect the exercise of constitutionally recognized and protected First Amendment Speech rights. 

The Maine statute, by compelling compliance with a government scheme for service provision not bargained for or agreed upon by broadcasters and content providers, encroaches upon their exercise of speech rights. 

The statute cannot serve any state interest as the statute is preempted by federal law, plaintiffs aver.  Even if it were not, the state cannot demonstrate any compelling, or even legitimate, interest in mandating enhanced access to programming where currently thousands of choices are available through cable services and through online sources such as Netflix and Amazon Prime Video.  

Where the Maine statute materially and substantially disrupts the conduct of negotiations and contractual obligations as it now exists, Maine cannot demonstrate that its interjection of state law requirements into the federally regulated landscape is sufficiently narrowly tailored to meet the state’s purported end.

Briefing will continue throughout October, with oral argument on the request to enjoin the state to be held on November 1, 2019. 

This case will no doubt be closely watched by both industry, government, and consumer groups, for as the old adage has it, “as Maine goes…..”

Briefing Schedule:

Response to Motion for Preliminary Injunction due October 7, 2019

Reply to Response to Motion for Preliminary Injunction due October 15, 2019

Motion to Dismiss due October 7, 2019

Response to Motion to Dismiss due October 15, 2019

Reply to Motion to Dismiss due October 22, 2019

Defendants’ Responses to Motions for Leave to File Amicus Briefs due October 7, 2019

Plaintiffs’ Responses to Motions for Leave to File Amicus Briefs due October 15, 2019

Replies to Motions for Leave to File Amicus Briefs due October 22, 2019

Comcast v. Maine_Complaint (U.S.D.C. Me.) September 6, 2019

 

 

 

 

 

Judicial Encroachment on Speech Rights Must Be Articulated with Particularity

Bank of Hope v. Chon, No. 18-1567 (3d Cir.) September 17, 2019.


The trial court in this embezzlement case erred in failing to articulate why speech suppression was necessary to the fair and orderly proceeding of the case.  The Court’s order forbidding defendant from contacting bank shareholders to garner support was entered without the court’s stating its reason for so doing, and failed to consider less restrictive alternatives, all in violation of defendant’s First Amendment rights.

Bank of Hope v. Chon (3rd Cir., 2019)

Wrongful Termination Case Cannot Proceed in Federal Court Where No First Amendment Rights Attach to Private Employment Disputes and Defense Cannot Confer Jurisdiction Otherwise Lacking

Cox v. Bishop England High School, et al., No. 2:19-cv-002202 (D. S.C.) September 17 2019.


A First Amendment claim regarding wrongful termination is insufficient to confer federal jurisdiction over the case, as Congress has not extended First Amendment protections to private workplaces.  Under the well-pleaded complaint rule, the assertion of defenses grounded in federal constitutional law will not, without more,transform a state law complaint into a federal one.

Cox v. Bishop England High Sch. (D. S.C., 2019)

Court May Limit Public Access Where Proceedings Involve Minors and Intimate Facts

Jane and John Doe, et al. v. Aberdeen School District, et al., No.  18-cv-00125 (N.D. S.D.) September 17, 2019.


The First Amendment requires that judicial proceedings be open to the public, the Rules of Federal Procedure require identification of the parties before the court.  Nonetheless, courts may permit pseudonymous proceedings where the totality of the circumstances indicate there is a substantial privacy right that permits limitations of access rights. Courts may consider whether the government is being challenged,  whether intimate facts are involved in the case, whether criminal prosecution may ensue, and, in the Sixth Circuit, whether minor children are plaintiffs.  As the facts in the case are both intimate and involve children, the court will permit pseudonymous proceedings.

Doe v. Aberdeen Sch. Dist. (D. S.D., 2019)

Compelling Convict to Disclose Sexual History Within State Interest in Public Safety

State v. Alvarez, No. No. 35567-5-III, Wash. Ct. App., September 17, 2019. (Unpublished).


Alvarez, convicted of rape of a child, cannot prevail on a his claim that the requirement that he notify the state of his current sexual partners and disclose his sexual crimes to partners violates his First Amendment rights. The state may impose restrictions in order to accomplish lawful ends.  Alvarez is not restricted in his freedom of association, although his privacy is affected.  That privacy interest may be compromised where the state has a legitimate interest in alerting the public about potentially dangerous individuals.  The disclosures required reasonably serve that end.

State v. Alvarez (Wash. App., 2019)

Litigants’ Agreement Cannot Limit Public Access to Courts

Kentucky v. Marathon Petroleum Company, No. 3:15-cv-354 (W.D. Ky.) September 17, 2019.


First Amendment and common law rights of access cannot be waived by any party’s failure to object to a motion to seal or by the parties’ consent to place records under seal. Access rights rest with the public and may be limited in the court’s discretion for good cause, including the potential of disclosure of corporate agreements to impede corporate contract negotiations.

Kentuchy v. Marathon Petroleum Co. (W.D. Ky., 2019)

 

 

“Fake” News, Real Consequences: Circus of Suits Against Media Concerning Seth Rich Murder March Along

Joel Rich and Mary Rich v. Fox News Network, LLC, Malia Zimmerman, and Ed Butowsky, No. 18-2321-cv (2nd Cir.).  District Court reversed and case remanded September 13, 2019; Ed Butowsky v. Folkenflik, NPR, Inc., NPR.ORG, et al, No. 4:18-cv-0442 (E.D.Tex.).  Magistrate’s Recommendation to Deny Motion to Dismiss adopted August 7, 2019; Wheeler v. Twenty-First Century Fox, et al., No. 17-cv-5807, 322 F. Supp. 3d 445 (S.D.N.Y. 2018).


News, and News and Speculation About the News. The murder of Democratic National Committee (DNC) staff member Seth Rich in 2016 precipitated an explosion of rumors about Rich’s death, including speculation that he had divulged DNC emails and strategies to non-mainstream media entity WikiLeaks.  

Mainstream media joined in the fray, exploring and elaborating in ways that Rich’s parents assert caused them emotional damage.  Fox News and its reporter and commentator approached Rich’s grieving and aggrieved parents, who were disturbed that their son’s death would sully his name, and induced  the Riches to hire private investigator Ed Wheeler, recommended and paid for by Butowsky.  

As a condition of his engagement, Wheeler promised not to disclose any information about his investigation absent the Riches’ consent.

Nonetheless it is alleged that Butowsky and Wheeler worked together, meeting with high level Washington communications staff and promising to keep the White House informed of their investigation.  

In anticipation of publication, Fox messaged Wheeler about intelligence sources and pressures to publish, urging Wheeler to become the public source of the WikiLeaks story.  Fox not only published a story using Wheeler as a source, but Fox also recounted Wheeler’s breach of his agreement with the distraught parents. Wheeler next said that his sources were Fox reporter Malia Zimmerman and Ed Butowsky.  

Butowsky is said to have continued to contact the Riches, allegedly to inform them that Zimmerman had located their son’s killer.  Butowsky appeared in the media with commentary about the WikiLeaks allegations.

The New York Litigation. The Riches sued Fox, its reporters and its commentator in the Southern District of New York.  The Second Circuit Court of Appeals recently reinstated the Riches’ claims, holding that it is of no consequence that the parents’ action for intentional infliction of emotional distress can be seen as a proxy for the defamation action that died with their son.  

Seriatim As Serious as Single Incident Harm. The federal appellate court rejected the notion that the intentional infliction of emotional distress must be established by a single incident:  harms that unfold serially, perhaps not sufficient individually to reach the high bar of harm required to establish intentional infliction of emotional distress, may cumulatively be so damaging as to be legally cognizable. 

As the known existence of a valid contract between Wheeler and the Riches was not contested, interference occurring before and continuing after formation of the agreement does not preclude establishing but-for causation.  

Privilege Preclusion Inapt. The court declined to opine on whether newsgathering and its exigencies could excuse interference with contractual relations, observing that what the court perceived as a malicious act — providing an investigator ostensibly for the bereaved but in reality for the media — would not be susceptible to establishing a justification for interference in the Rich – Wheeler contract. 

More to Come. Media fascination with the death of Seth Rich and its sequelae did not end with the circular accounts issued by Fox, its reporter and commentator, and its investigator.  

Wheeler, threatened with suit by the Riches, sued multiple media defendants and associates for defamation, including Butowsky, and in particular alleged that Fox’s reporter published fabricated quotations attributed to Wheeler.  Wheeler did not meet with success:  his case in the Southern District of New York was dismissed at the pleading stage.

The Texas Litigation. Butowsky sued National Public Radio (NPR) and its reporter.   Butowsky did not pursue the media law firm and Wheeler’s counsel, who Butowsky avers is engaged in a legal campaign against Fox. 

Butowsky’s complaint elaborates upon allegations in the Rich complaint that interest and involvement in the investigation of Rich’s death reached the highest levels of the executive branch. 

Butowsky points to NPR’s reporter’s participation in an interview that offered the reporter’s views on the stories, including noting Fox’s retraction and offering journalistic lessons from the story.

Dismissal Not Warranted Where Privilege May Not Be Present. A magistrate, and later a judge in the U.S.D.C. for the Eastern District of Texas denied the media defendants’ motion to dismiss, observing that the fair report and/or fair comment privileges that y serve as a defense to defamation would not permit dismissal as a matter of law, particularly where the privilege cannot be conferred by the media of its own accord by commenting on its own reporting.  Not only is this form of self-insulation not permissible, where there is malice, the protections of these reporting privileges may be lost.

The Heart of the Matter Is What is at Stake. The magistrate observed that while the burden remains on the plaintiff to establish that any report was false, this may be done by establishing not that each statement published was false but that in the aggregate or in the manner of presentation, the “gist” of the publication was not substantially true.

Opinion Not a “Get Out of Jail Free” Card. Defamation may be intrinsic or extrinsic, explicit or implicit, and the assertion that opinion is not defamatory will not prevail if the underlying statements said to support the opinion are false or recklessly published. 

The Magistrate underscored the limitations on the opinion exemption from defamation, observing that implications from false assertions of fact are not insulated simply because an opinion is wrapped around them.

Impressions Count. Although a publisher cannot be liable for every inference that might be drawn from a story, that principle does not hold where a publication in its entirely creates a particular communicative impression.  The arrangement and presentation of information factors into the analysis.

No Doubt About Who They Had in Mind. It does not matter that the subject of a defamatory statement is not explicitly mentioned if it is inescapable that the defamed person is the subject of the report.

Public Figure or Limited Public Figure Status Not Yet Established. The Magistrate was not persuaded that on motion to dismiss that the defendants could establish that Butowsky, a well known financial expert and media commentator in his own right, is a limited public figure for purposes of application of the higher standards of proof that apply to such a person.  Nonetheless, the complaint provides allegations sufficient to plead malice.

Investigation, Failure to Investigate, and Bias. Plaintiff’s assertion that NPR adopted and published a media lawyers’ narrative without verification and with information that would cast that narrative in doubt, could establish malice. 

The Magistrate stressed that a failure to investigate alone would not establish malcie, but turning a blind eye to pertinent information could.  This might be shown by preselecting information conforming to a particular story, having preconceived, ideas, repetition of known false ideas, or other conduct proceeding from doubtful material in purposive avoidance of the truth.

Failure to Demand Retraction Will Not Defeat Claim.The Magistrate rejected the assertion that the state’s Defamation Mitigation Act precludes recovery.  The act’s requirement that plaintiff demand retraction before suing for defamation is a limitation on punitive damages, not a bar suit, particularly if the sense is that damage is so extensive that retraction would be unavailing. 

The Story Continues in Courts.  Seth Rich’s surviving parents and Butowsky’s cases proceed in New York and Texas at this writing.  Wheeler’s case against Twenty First Century Fox was dismissed in August, 2018, and there is no record of appeal having been taken.  The Southern District of New York found that Wheeler had no claim for defamation, as none of the statements in issue could be shown to be demonstrably false. 

Rich v. Fox News Network, LLC, et al. (2nd Cir.)

Butowsky v. Folkenflik, NPR, at al. (E.D. Tex.)

Wheeler v. Twenty-First Century Fox, 322 F.Supp.3d 445 (S.D. N.Y., 2018)

Non-Theists Haven’t Got a (Legislative) Prayer, Third Circuit Holds

Fields, et al. v. Speaker of the House of Pennsylvania Representatives, No. 18-2974 (August 23, 2019).  Mandate issued September 16, 2019.


The Pennsylvania legislature invites only theists as guest chaplains to open sessions with prayer.  The Third Circuit found no constitutional infirmity in this practice.

The federal appellate court observed that prayer presupposes a higher power and that only theistic prayer is consonant with the historic tradition of invoking divine guidance in lawmaking.  

Legislative prayer is government speech, particularly where the government is both speaker and listener, and is not susceptible to First Amendment and Equal Protection challenges.  Signage and the speaker’s request that guests stand during prayer is not coercive.

Looking to History and Tradition. Supreme Court precedent looks to historic tradition to evaluate Establishment Clause challenges, whether with respect to public prayer or public monuments.  As legislative prayer has been a traditional practice, having both religious and secular significance, it works no constitutional harm.  

Prayer Definitionally Involves Divinity. Because by its very nature prayer presupposes a divine power, only theists prayer can achieve all the purposes of legislative prayer.  To confine prayer traditions to theistic prayer does not, notwithstanding prayer’s inherently religious nature, institute religious orthodoxy.

Religious Status Not Compelling. The non-theists’ challenge is not improved because of their recognition as religions, for that status does not change the nature of the prayer’s permissibility.  

Historic Conformity, Contemporary Neutrality. Because the Pennsylvania legislature has conformed to history in its choice of chaplains, because non-theists cannot offer the sort of prayer tradition contemplates, and because the legislature does not direct the content of prayer, Pennsylvania has not impermissibly preferenced one religion over another.  

A non discriminatory and inclusive practice of selecting theistic chaplains to lead prayer is acceptable under Town of Greece v. Galloway, 512, U.S. 565 (2014) under the Third Circuit’s view that prayer invokes divine guidance and presupposes a higher power.  Pennsylvania’s invitation program lends itself to greater constitutional acceptability than is a practice of selecting a single permanent chaplain from one denomination.

Not Must, But May. The Third Circuit noted that the Pennsylvania legislature need not exclude nontheists from legislative prayer, only that it is not impermissible to exclude non theists.  

Inclusiveness Has Limits. The court continued that an unbounded focus on “non-discrimination” could wreak havoc with selections, essentially creating a “heckler’s veto” on fringe groups.  

Another Voice Raised in Dissent.  A dissenting justice questioned the congruence with history that the other two members of the panel handily found.  Even if history were satisfied, the dissent perceived that the legislature has established a religious orthodoxy that violates the Establishment Clause. 

Where Judges Fear to Tread. The dissent criticized the majority for venturing into the very areas that the Establishment Clause forbids: courts are not to address questions such as the nature of prayer, what is divine, and so forth.

Consider the Outcome, Not Its Rationale. The dissent perceived the permissible “theistic” limitation to be so much obfuscation:  the real practice of the legislature is to exclude from guest chaplaincy certain religious groups and certain religious beliefs.

Tradition As It Was, Not As It Is Imagined to Have Been. The tradition embraced by the Founders is not one of exclusion but of inclusion. Early debate on the appointment of a chaplain ended in favor of doing so, and no faith was excluded and no faith was favored.  The notion that the Framers would not understand atheism as a faith distorts the historical inclusiveness that is central to the examination of history and would preclude inclusion of all manner of established traditions.

Tradition Has Its Limits. The dissent cautioned against finding too great a constitutional comfort in history, as history offers no justification for contemporary violation of constitutional guarantees.

Guarantees Not Honored. The promises of the Establishment Clause are governmental neutrality and non-discrimination.  The Pennsylvania practice falls short of the mark, demanding that guest chaplains assert a belief in God and permitting only those who do believe to serve.

Fields v. Speaker of Pa. House of Representatives (3rd Cir., 2019)

Ill Gotten? No Problem! First Amendment Protects Publication of Purloined Democratic National Committee Information, Southern District of New York Concludes

Democratic National Committee v. Russian Federation, et al, No. 18-cv-3501 (JGK) (S.D.N.Y. July 30, 2019).


There are few — if any — freedoms more deeply cherished in the United States than that of the press to publish, as the New York Times has avowed since 1897, “All the News That’s Fit to Print.” In matters of public interest, unless a publisher has knowingly participated in theft of information, no criminal or civil liability may attach.  To hold otherwise, the Supreme Court has held, would be an unconstitutional prior restraint upon the press. This is so, the Court has held, even if the publisher is aware that the material provided to it was not come by honestly.  Bartnicki v Vopper, 532 U.S. 514 (2001); The Florida Star v. B.J.F., 491 U.S. 524 (1989); Smith v. Daily Mail Publishing Company., 443 U.S. 97 (1979); New York Times Company v. United States United States v. Washington Post Company, 403 U.S. 713 (1971)

Settled law in unsettling times.  The recent reiteration of these principles by the United States District Court for the Southern District of New York was occasioned by a suit by the Democratic National Committee (DNC) against Donald J. Trump For President, Inc. ; Donald J. Trump, Jr.; Paul J. Manafort, Jr.; Jared C. Kushner; George Papadopoulos; and Richard W. Gates, III; Roger J. Stone, Jr.; the Russian Federation; Aras Iskenerovich Agalarov; Emin Araz Agalarov; Joseph Mifsud; WikiLeaks; and Julian Assange.

The DNC alleged, and the court on motion to dismiss assumed to be true, that the Russian Federation hacked into the computers of the DNC, siphoned substantial numbers of significant documents.  The Russian Federation next engaged in a minuet with the Trump campaign and its various principals as well as with Wikileaks and Assange, which resulted in disclosures of the DNC’s theretofore private information. 

The DNC alleged that the Trump campaign welcomed and was benefited by the Russian Federation’s actions and that publication of DNC’s stolen information was unlawful. 

The Southern District of New York rejected the DNC’s contentions because the Russian Federation, as sovereign, cannot be sued in the United States courts by private entities, because the First Amendment protects publishers of unlawfully obtained information, and because the defendants could not be civilly liable for  conspiracy, if one were found to exist, to achieve the lawful end of the election of a presidential candidate.  

The court observed that the Supreme Court has been plain in its view that “state action to punish the publication of truthful information seldom can satisfy constitutional standards.” Smith v. Daily Mail Publishing Co.,, 443 U.S. 97, 102 (1979).  (Opinion, p. 33-34). The law distinguishes the publication of stolen information from the act of theft. Bartnicki v Vopper, 532 U.S. 514 (2001) (Opinion, p. 34) . 

The federal court was aided in its determination by amicus submissions by The Knight First Amendment Institute at Columbia University, the Reporters Committee for Freedom of the Press, and the American Civil Liberties Union.  

The upshot: getting to the truth may involve some discomfort, and may not always be pristine. Leaving aside for a moment the catnip of campaign hi-jinx, it may strike some as far from reasonable to extend the insulation afforded by the First Amendment as far as it has been here, and perhaps as far as it has been historically.  Others would argue that the occasional publication of tainted information is but a small price to pay to ensure the continuous flow of information about matters of public concern that is held to be central to a free society.  

The future. Whether appeal will ensue is not known at this writing. 

Source Material. The opinion of the Southern District of New York, the principal Supreme Court cases relied upon, and the amicus submission presented to the court are provided below.  

Democratic Nat’l Comm. v. Russian Fed’n (S.D. N.Y., 2019)

Bartnicki v Vopper, 532 U.S. 514 (2001)

The Florida Star v. B.J.F., 491 U.S. 524 (1989)

Smith v. Daily Mail Pub. Co.. 443 U.S. 97 (1979)

New York Times Company v. United States United States v. Washington Post Company, 403 U.S. 713 (1971)

DNC v. Russian Federation et al Amici Curaie Brief

 

 

 

 

 

 

A Matter of Opinion: Federal Court in Kentucky Dismisses High School Student’s Defamation Case Against the Washington Post Stemming from Reporting of Charged Encounter on the National Mall

Nicholas Sandmann v. WP Company, LLC, d/b/a The Washington Post, No. 2-019-00019 (WOB-CJS).  Opinion and Order of Dismissal with Prejudice, July 26, 2019 (E.D. Ky.)


An encounter between a high school student and a Native American activist on the National Mall in January, 2019, was videotaped and widely distributed on the internet.

The day having been one of several groups’ gathering to exercise First Amendment freedoms, the appearance of conflict between an adolescent wearing a MAGA (“Make America Great Again”) hat and a drumming Native American was undoubtedly newsworthy and of public interest.

Interaction among students from a Catholic High School who had traveled to Washington to engage in pro-life activity and a Native American participating in an Indigenous Peoples’ March could only be catnip to those inclined to perceive any encounter between persons of differing demographic groups as a manifestation of one form of social ill or another.

Upon posting of the video, the internet blew up, and the commentariat raged apace, in general denouncing the adolescent Sandmann and applauding the Native American Nathan Phillips.

Some days hence, questions arose as to the bona fides of the initial accounts of the exchange, which questions were buttressed by disclosure of additional video.

Religious superiors affiliated with Sandmann’s high school condemned the incident, a position from which retrenchment was necessitated upon disclosure of additional information.

Interviews and talk show appearances ensued.  Sandmann was interviewed, as was Phillips.  Pundits weighed in and editorialists opined. The public shared its views and the Twitterverse was alive with chatter about this alleged confrontation between individuals presumed to be from different worlds.

Counsel volunteered to help Sandmann, who had been thrust into the public spotlight at an early age, to address the consequences of perceptions of his activity.  As a result, multiple lawsuits have been filed against major media.

On July 26, 2019, the United States District Court for the Eastern District of Kentucky dismissed Nicholas Sandmann’s complaint against the Washington Post with prejudice.

The federal district court has concluded that, as a matter of law, Sandmann had not stated a claim of defamation under Kentucky law.

The court enumerated the elements of defamation under state law and referred to Supreme Court precedent establishing that opinions on matters of public concern are not actionable without provably false factual statements.  Opinion is fully constitutionally protected,  and there can be no legal remedy for statements  that cannot reasonably be seen to be stating facts.  Milkovich v. Loraine Journal Co., 497 U.S. 1 (1990).

The court found that some statements in the seven articles published by the Washington Post were not specific to Sandmann, and were not identifiable to Sandmann, and thus were not actionable.

The court also found that statements made by Phillips that Sandmann “blocked” him from moving and that Phillips felt fear were statements of opinion which, n the absence of demonstrable underlying factual falsity, were not actionable.

Additionally, the court found the statements challenged were not defamatory.  It is not enough,the court observed, that an allegedly defamatory statement is “annoying, offensive, or embarrassing.”  (Op. at 11).  The statements must expose the claimant to “public hatred, ridicule, contempt or disgrace,” or induce in others a bad opinion (Id.)

The court turned to the defamatory nature of the statements published, which Sanamann alleged indicated that he assaulted or intimidated Phillips, uttered taunts, or engaged in racist conduct.   The court concluded that the published articles said no such things.

The court offered that, it analyzing the case as one of libel per se, the court was precluded from venturing beyond the plain meaning of what was actually published or to engage in explanation, enlargement or innuendo to add to the words allegedly libelous effect (Op. at 20-21).

Any consequences allegedly suffered by Sandmann– such as social media scorn — were without significance to the court, as extrinsic evidence would make the case one of libel per quod, which was not, in the court’s view, the claim before the court, which was one of libel per se.

A published account indicating that  a public encounter was heated or tense would not be sufficient to meet the elements of defamation, nor would rhetorical headline hyperbole be found defamatory.

Phillips’ subjective account of his experience of fear was not defamatory nor could assigning political affiliation to Sandmann subject Sandmann to the sort of social contempt required for statements to be libelous per se.  Neither Sandmann’s statement of his subjective intent nor Phillips’ description of his subjective emotional state are  susceptible to objective verification.  As such, these accounts cannot be actionable in defamation.

The court observed that shielding opinion from civil liability serves to protect First Amendment speech and press interests.

Prognostication: Impossible.  As noted above, Sandmann’s case against the Washington Post is but one of several cases in which he seeks to recover for alleged harm suffered as a result of the media firestorm that ensued from his encounter with Phillips.  If the decision here is any indication, subsequent cases may be intensively fact driven.  Whether the breadth of construction of statements of perception such as “blocked,” which is arguably a verifiable and measurable matter, will be accorded in other cases remains to be seen.  Of equal significance is whether other cases will be limited to consideration of libel per se.

Sandmann v. Washington Post, Opinion and Order of Dismissal July 26, 2019