Nick Sandmann v. Washington Post: The defendant countersues

Just under the 30-day limit for filing a response, the Washington Post has filed its response to Nick Sandmann's defamation complaint.  He alleged they defamed him; now they claim they didn't and, in fact, printed a front-page Editor's Note that absolves themselves.

We should expect relatively little additional comment from WaPo, since the traditional response to inquiries by corporate lawyers is "we do not comment on pending litigation."

As a thought experiment, not necessarily based on fact, let us explore where this matter might go.

For all their protestations about the noble mission of the mainstream media, we note that collectively, the press does not provide much detail to the public.  The most informative story I found in an internet search comes from the Washington Times.

This brings us to the first notable fact: that the WaPo has filed its response in federal court in Washington, D.C. (AKA "The Swamp").  Sandmann's complaint was filed in state court in Kentucky.  That suggests they think they have a better defense under the First Amendment to the U.S. Constitution in Washington than they do under the state defamation laws in Kentucky.  Ordinarily, a defendant would file his response in the same court where the plaintiff filed his complaint.  We can expect a bit of dispute about the proper venue for the dispute.  We can also assume that the WaPo's highly paid lawyers will enjoy the "billable hours."

Screen shot from shareable YouTube video from the Washington Post.

You should read the Washington Times story!  It deserves the clicks for providing the basic facts.  I offer three observations:

The core of the dispute is about the respective reputations of the two parties.  Nick Sandmann is a 16-year-old high school student.  The WaPo sells itself as the such an important company that it can run Super Bowl ads touting itself and its reputation.  The WaPo needs to be held to much, much higher editorial standards than, say, what President Trump might call a "failing newspaper," the New York Times.  Note that the Times was the plaintiff in New York Times v. Sullivan, the countersuit to Sullivan v. New York Times.  This is familiar ground for defamation lawsuits.

The next court action we are likely to see will be in the Kentucky court, but expect a hush from Big Media.  They don't want to give heart to local citizens.  They prefer a façade of invincibility.

The second point I would make about WaPo's argument is how closeted it is.  These people seek to excuse their actions by saying their story did include some facts that were arguably true, so being partially truthful is the same as telling "the truth, the whole truth and nothing but the truth."  By the nonexistent standards of modern "journalism" in The Swamp, they may have a point.  But they are not in The Swamp anymore; they are in Kentucky.

Consider this argument quoted by the Washington Times:

In a 45-page motion filed Tuesday, the Post denied that it defamed the Kentucky teen in its reporting on his Jan. 18 encounter with Omaha Nation elder Nathan Phillips.  The 16-year-old wore a red Make America Great Again ball cap in the viral confrontation.

Now substitute "Jeff Bezos" for "The 16-year-old" and ask if that statement would be found defamatory in The Swamp.

That might come across a little differently at the White House Correspondents' Dinner from how it does in Covington, Kentucky.

My third observation comes from a career of selling industrial equipment to a knowledgeable customer base, many of whom are engineers and will use your product in the Real World to do Real Things.  If I ever made the kind of claims WaPo does and then the claims turned out to be false, I would expect to be sued for the defects.  The lawyers call it an implied warranty of merchantability and fitness.  It is a part of the Universal Commercial Code, which is a federal law.  Let us not forget that the WaPo still owns printing presses.  It is a manufacturing company.

Who knows?  Maybe someday Nick Sandmann will have his own physical printing plant.  And we know that the current owner paid $250 million to buy it.

Go get them, Tiger!

Image credit: Screen shot from Washington Post shareable video via YouTube.

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