Post<\/em>.<\/li>\n<\/ol>\nNICHOLAS\u2019 STATEMENT AND NBC INTERVIEW<\/strong><\/p>\n\n- On the afternoon of January 20, in an attempt to stem the threats of physical violence being made against him, his family, and his CovCath classmates, Nicholas made public a statement in which he provided a detailed and accurate factual description of the January 18 incident. A copy of Nicholas\u2019 January 20 statement is attached hereto as Exhibit A.<\/li>\n
- On January 23, in a further attempt to stem the threats of physical violence being made against him, his family, and his CovCath classmates, Nicholas gave an interview to Savannah Guthrie on the\u00a0Today\u00a0<\/em>show on NBC, in which he reiterated his detailed and accurate factual description of his encounter with Phillips in the face of accusatory questioning by Guthrie.<\/li>\n<\/ol>\n
AN INVESTIGATION REVEALS THE TRUTH<\/strong><\/p>\n\n- The\u00a0Post<\/em>\u00a0did not conduct a proper investigation before publishing its false and defamatory statements of and concerning Nicholas.<\/li>\n
- A false and defamatory statement of and concerning Nicholas was also published by the Diocese of Covington on January 19 before a proper investigation had been conducted by the Diocese.<\/li>\n
- Subsequently, the Diocese of Covington retained through its counsel a third-party investigative firm, Greater Cincinnati Investigation, Inc. (\u201cGCI\u201d), to formally determine what occurred during the January 18 incident at the National Mall.<\/li>\n
- On February 11, 2019, GCI issued its Final Investigative Report (the \u201cGCI Report\u201d), a true and correct copy of which is attached hereto as Exhibit B.<\/li>\n
- On February 11, 2019, Diocese Bishop Foys released the GCI Report and said in a letter to the Covington Catholic parents that the GCI Report exonerated the students and demonstrated that the students did not instigate the incident at the Lincoln Memorial. A true and correct copy of said letter is attached hereto as Exhibit C.<\/li>\n
- The GCI Report is entirely consistent with all video evidence as well as statements issued by Nicholas and other CovCath students and chaperones.<\/li>\n
- According to the GCI Report, four (4) licensed investigators spent approximately 240 man hours investigating the incident, interviewed 43 students and 13 chaperones, reviewed approximately 50 hours of Internet activity, and attempted to interview Phillips, who failed to respond to phone calls, emails, or investigators who waited outside his home for 6 hours and left a note asking him to contact them.<\/li>\n
- The GCI Report made the following key findings:\n
\n- Nicholas\u2019 January 20 statement accurately reflects the January 18 incident.<\/li>\n
- There was \u201cno evidence that students responded [to the Black Hebrew Israelites] with any offensive or racist statements of their own.\u201d<\/li>\n
- The students asked their chaperones if they could perform school cheers to drown out the Hebrew Israelites\u2019 invective, and upon receiving approval, they performed the same cheers that are commonly performed at football or basketball games.<\/li>\n
- There was \u201cno evidence that the students performed a \u2018Build the Wall\u2019 chant.\u201d<\/li>\n
- Defendant Phillips approached the Covington Catholic students.<\/li>\n
- There was \u201cno evidence of offensive or racist statements by students to Mr. Phillips or members of his group.\u201d<\/li>\n
- The majority, if not all, of the MAGA hats being worn by students were purchased before, during, or after the March for Life.<\/li>\n
- In previous years, some students had purchased \u2018Hope\u2019 hats in support of President Obama.<\/li>\n
- \u201cMr. Phillips\u2019 public interviews contain some inconsistencies. . . .\u201d<\/li>\n<\/ul>\n<\/li>\n<\/ol>\n
PHILLIPS\u2019 INCONSISTENT AND FALSE CLAIMS<\/strong><\/p>\n\n- Phillips is known to have given at least six interviews to mainstream media, including the\u00a0Post<\/em>,\u00a0CNN, The Associated Press, Detroit Free Press, MSNBC, and Democracy Now<\/em>.<\/li>\n
- The accusations of Phillips and his companions, as published by the\u00a0Post<\/em>\u00a0and the others identified above are remarkable in their inconsistency with each other.<\/li>\n
- According to the first\u00a0Post<\/em>\u00a0print article, Phillips stated that the students \u201csuddenly swarmed around him as he and other activists were wrapping up the march.\u201d<\/li>\n
- According to\u00a0The Associated Press<\/em>, Phillips stated that \u201che felt compelled to get between two groups with his ceremonial drum to defuse a confrontation.\u201d<\/li>\n
- According to the first\u00a0Post<\/em>\u00a0online article, Phillips said he was trying to \u201cexit out of this situation and finish my song at the Lincoln Memorial.\u201d<\/li>\n
- According to the second\u00a0Post\u00a0<\/em>print article, \u201cPhillips said he was trying to reach the top of the memorial, where friends were standing.\u201d<\/li>\n
- According to\u00a0Democracy Now!<\/em>, Phillips stated that \u201cI wasn\u2019t focusing on anybody except taking the youth out of there, the Indigenous youth that was with me, out of that situation, and that\u2019s when Mr. Sandmann stood in front of me and blocked my path.\u201d<\/li>\n
- According to the first\u00a0Post<\/em>\u00a0print article, Phillips stated that it \u201cwas getting ugly\u201d and he needed to find \u201can exit out\u201d of there, but Nicholas \u201cblocked [his] way and wouldn\u2019t allow me to retreat.\u201d<\/li>\n
- But according to the second\u00a0Post<\/em>\u00a0print article, Phillips queried \u201cwhy should I go around him?\u201d<\/li>\n
- Despite Phillips\u2019 claim that the students yelled \u201cbuild that wall,\u201d \u201cgo back to Africa,\u201d and \u201cgo back to the reservation,\u201d no video evidence exists substantiating this accusation.<\/li>\n
- Despite an attorney for the Lakota People Law Project, Chase Iron Eyes\u2019, claim as reported in the first\u00a0Post<\/em>\u00a0print article that the incident \u201cended when Phillips and other activists walked away\u201d and Phillips\u2019 claim that he was trying to reach the top of the steps, the incident ended only when Nicholas left for his bus and Phillips then turned away from the top of the stairs and celebrated his perceived \u201cwin\u201d with his companions.<\/li>\n
- Despite Phillips\u2019 claims that the students left because they were \u201crunning from the police,\u201d the video evidence and statements of witnesses demonstrate that the students left to catch their buses.<\/li>\n
- Although Phillips has previously claimed to have served in Vietnam, it is now evident that though Phillips was in the Marines, he was never deployed overseas.<\/li>\n<\/ol>\n
THE\u00a0POST<\/em>\u00a0COVERAGE<\/strong><\/p>\n\n- The\u00a0Post\u00a0<\/em>rushed to lead the mainstream media to assassinate Nicholas\u2019 character and bully him, publishing their first article no later than 1:37 p.m. January 19. This story was not \u201chot\u201d or \u201cbreaking news.\u201d\u00a0 To the extent the\u00a0Post<\/em>\u00a0performed any investigation at all into what occurred, its unreasonable investigation did not take long, and contrary information did not stop it from publishing its first story in its Sunday newspaper the next day.\u00a0 One of the reporters on the story first retweeted the video approximately four hours before receiving credit for the\u00a0Post\u2019s<\/em>\u00a0first article.\u00a0 In the intervening time, the\u00a0Post<\/em>\u00a0apparently managed to track down and interview Phillips, write a story, and fan the flames of the social media mob into a mainstream media frenzy of false attacks and threats against Nicholas.<\/li>\n
- In the\u00a0Post\u2019s<\/em>\u00a0own words \u2013 albeit a far cry from the true scope of the false and defamatory accusations it made against Nicholas \u2013 the readers of the\u00a0Post\u2019s<\/em>\u00a0coverage were \u201clicensed to conclude that the students saw [Phillips] from afar, targeted him and advanced.\u201d Of course, the\u00a0Post\u2019s<\/em>\u00a0readers were also licensed to falsely conclude that Nicholas physically and verbally assaulted Phillips while blocking his egress from a mob of students who were similarly engaged in racist conduct.<\/li>\n
- The\u00a0Post<\/em>, whose coverage emphasized that Nicholas was wearing a \u201cMAGA\u201d hat, contributed to the rampant cyber-assault and cyber-bullying suffered by Nicholas in the aftermath of its initial reporting which was also undertaken in mass by the mob of other bullies made up of other members of the mainstream media, individuals tweeting on Twitter, church officials, celebrities, and politicians.<\/li>\n
- Even the Twitter platform itself jumped into the bully pulpit and was influenced by early media coverage of the\u00a0Post<\/em>, as demonstrated when its \u201cmoment\u201d feature falsely accused Nicholas and his classmates of \u201cmocking\u201d Phillips. According to reports, a Twitter spokesperson stated \u201cTwitter Curation strives to fairly and accurately contextualize the nature of large conversations on the platform \u2026 The original Covington video appeared on Friday night.\u00a0 However, the Curation team did not compile a Moment until additional news media reporting emerged to provide context to the video \u2013 this included a source video interview with Nathan Phillips, which was featured in the Moment.\u201d<\/li>\n<\/ol>\n
PARTIES, JURISDICTION, AND VENUE<\/strong><\/p>\n\n- Nicholas Sandmann and his parents reside in Kenton County, Kentucky.<\/li>\n
- Nicholas is a 16-year old 11th<\/sup>\u00a0grade student who attends CovCath, an all-male Catholic high school in Park Hills, Kentucky.<\/li>\n
- The\u00a0Post\u00a0<\/em>is a foreign corporation existing under the laws of the State of Delaware with its principal place of business being located at 1301 K. Street NW, Washington, D.C. 20071. The\u00a0Post<\/em>\u00a0may be served by delivery of a copy of the summons and complaint to its duly-appointed registered agent, C T Corporation System, 1015 15th Street NW, Suite 1000, Washington, D.C. 20005.<\/li>\n
- There exists complete diversity of citizenship between Plaintiffs and the\u00a0Post<\/em>.<\/li>\n
- The amount in controversy greatly exceeds Seventy-Five Thousand Dollars ($75,000.00), exclusive of interests, costs, and attorneys\u2019 fees, as required to sustain subject-matter jurisdiction in this Court.<\/li>\n
- This Court has subject-matter jurisdiction over this matter pursuant to 28 U.S.C. \u00a7 1332(a).<\/li>\n
- The\u00a0Post<\/em>\u00a0has one of the largest print circulations and number of online subscribers in the country.<\/li>\n
- The\u00a0Post<\/em>\u00a0transacts business in the State of Kentucky, including through the sale of print newspapers and online subscriptions, and committed the tortious acts identified herein in the State of Kentucky.<\/li>\n
- The\u00a0Post<\/em>\u00a0published the print and online articles identified herein in the State of Kentucky.<\/li>\n
- The\u00a0Post<\/em>\u00a0has intentionally sought and obtained benefits from their tortious acts in the State of Kentucky.<\/li>\n
- The\u00a0Post<\/em>\u00a0directed its unlawful and bullying conduct at Nicholas, a citizen of Kentucky.<\/li>\n
- Nicholas suffered substantial reputational and emotional harm in this District.<\/li>\n
- There is a reasonable and direct nexus between the\u00a0Post\u2019s<\/em>\u00a0tortious conduct in Kentucky and the harm suffered by Nicholas in Kentucky and beyond.<\/li>\n
- The\u00a0Post<\/em>\u00a0is subject to the jurisdiction of this Court pursuant to KRS 454.210.<\/li>\n
- Venue is proper in this District pursuant to 28 U.S.C. \u00a7 1391(b) because the\u00a0Post<\/em>\u00a0is subject to personal jurisdiction in this District and\/or a substantial part of the events giving rise to this claim occurred in this District, including publication and injury.<\/li>\n<\/ol>\n
CAUSE OF ACTION FOR DEFAMATION<\/strong><\/p>\n\n- Nicholas reasserts and incorporates by reference paragraphs 1 through 110 of this Complaint as if fully restated herein.<\/li>\n
- The\u00a0Post<\/em>\u00a0published to third parties without privilege no less than six false and defamatory articles of and concerning Nicholas, including two in its print newspaper and four online. This number does not include those articles that the\u00a0Post<\/em>\u00a0updated and changed after initial publication.<\/li>\n
- On January 19, 2019, the\u00a0Post<\/em>\u00a0published online its first false and defamatory article entitled \u201c\u2018It was getting ugly\u2019: Native American drummer speaks on MAGA-hat wearing teens who surrounded him\u201d (the \u201cFirst Article\u201d). A true and correct copy of the First Article is attached hereto as Exhibit D.<\/li>\n
- The First Article features Nicholas prominently by publication of the @2020fight and\/or Taitano Videos and emphasizing his alleged involvement as the \u201cone standing about a foot from the drummer\u2019s face wearing a relentless smirk.\u201d<\/li>\n
- The First Article communicated the false and defamatory gist that Nicholas instigated a confrontation with Phillips and subsequently engaged in racist conduct.<\/li>\n
- The First Article communicated the false and defamatory gist that Nicholas assaulted and\/or physically intimidated Phillips.<\/li>\n
- The First Article communicated the false and defamatory gist that Nicholas engaged in racist taunts.<\/li>\n
- In its First Article, the\u00a0Post<\/em>\u00a0published or republished the following false and defamatory statements:\n
\n- The headline \u201c\u2018It was getting ugly\u2019: Native American drummer speaks on the MAGA-hat wearing teens who surrounded him.\u201d<\/li>\n
- \u201cIn an interview Saturday, Phillips, 64, said he felt threatened by the teens and that they suddenly swarmed around him as he and other activists were wrapping up the march and preparing to leave.\u201d<\/li>\n
- \u201cPhillips, who was singing the American Indian Movement song of unity that serves as a ceremony to send the spirits home, said he noticed tensions beginning to escalate when the teens and other apparent participants from the nearby March for Life rally began taunting the dispersing indigenous crowd.\u201d<\/li>\n
- \u201cA few people in the March for Life crowd began to chant \u2018Build that wall, build that wall,\u2019 he said.\u201d<\/li>\n
- \u201c\u2018It was getting ugly, and I was thinking: \u2018I\u2019ve got to find myself an exit out of this situation and finish my song at the Lincoln Memorial,\u2019 Phillips recalled. \u2018I started going that way, and that guy in the hat stood in my way and we were at an impasse.\u00a0 He just blocked my way and wouldn\u2019t allow me to retreat.\u2019\u201d<\/li>\n
- \u201c\u2018It clearly demonstrates the validity of our concerns about the marginalization and disrespect of Indigenous peoples, and it shows that traditional knowledge is being ignored by those who should listen most closely,\u2019 Darren Thompson, an organizer for the [Indigenous Peoples Movement], said in the statement.\u201d<\/li>\n
- \u201cChase Iron Eyes, an attorney with the Lakota People Law Project, said the incident lasted about 10 minutes and ended when Phillips and other activists walked away.\u201d<\/li>\n
- \u201c\u2018It was an aggressive display of physicality. They were rambunctious and trying to instigate a conflict,\u2019 he said.\u00a0 \u2018We were wondering where their chaperones were.\u00a0 [Phillips] was really trying to defuse the situation.\u2019\u201d<\/li>\n
- \u201cPhillips, an Omaha tribe elder who also fought in the Vietnam war, has encountered anti-Native American sentiments before . . . .\u201d<\/li>\n<\/ul>\n<\/li>\n
- On January 20, the\u00a0Post<\/em>\u00a0updated its Second Article (the \u201cSecond Article\u201d). A true and correct copy of the Second Article is attached hereto as Exhibit E.<\/li>\n
- The Second Article, as updated and in addition to the gists identified above in the First Article, communicated the false and defamatory gist that Nicholas\u2019 behavior violated the fundamental standards of his religious community and violated the policies of his school such that he should be expelled.<\/li>\n
- In its false and defamatory Second Article, in addition to those identified in the First Article, the\u00a0Post<\/em>\u00a0published or republished the following false and defamatory statements:Exhibit A\n
\n- \u201c\u2018We [Bishop Foys and the Diocese of Covington] condemn the actions of the Covington Catholic High School students towards Nathan Phillips specifically, and Native Americans in general,\u2019 the statement said. \u2018The matter is being investigated and we will take appropriate action, up to and including expulsion.\u2019 \u2026 The diocese\u2019s statement expressed regret that jeering, disrespectful students from a Catholic school had become the enduring image of the march.\u201d<\/li>\n<\/ul>\n<\/li>\n
- On January 20, 2019, the\u00a0Post<\/em>\u00a0published in print its third false and defamatory article entitled \u201cMarcher\u2019s accost by boys in MAGA caps draws ire\u201d (the \u201cThird Article\u201d). A true and correct copy of the Third Article is attached hereto as Exhibit F.<\/li>\n
- The Third Article was published in the\u00a0Post\u2019s\u00a0<\/em>Sunday edition of its newspaper.<\/li>\n
- The Third Article referenced the viral @2020fight and\/or Taitano Videos that had gone viral, prominently featuring Nicholas, and emphasized Nicholas\u2019 alleged involvement as the \u201cone standing about a foot from the drummer\u2019s face wearing a relentless smirk.\u201d<\/li>\n
- The Third Article communicated the false and defamatory gist that Nicholas instigated a confrontation with Phillips and subsequently engaged in racist conduct.<\/li>\n
- The Third Article communicated the false and defamatory gist that Nicholas assaulted and\/or physically intimidated Phillips.<\/li>\n
- The Third Article communicated the false and defamatory gist that Nicholas\u2019 behavior violated the fundamental standards of his religious community.<\/li>\n
- The Third Article communicated the false and defamatory gist that Nicholas\u2019 behavior violated the policies of his school such that he should be expelled.<\/li>\n
- In its Third Article, the\u00a0Post<\/em>\u00a0published or republished the following false and defamatory statements:\n
\n- The headline \u201cMarcher\u2019s accost by boys in MAGA caps draws ire.\u201d<\/li>\n
- \u201cIn an interview Saturday, Phillips, 64, said he felt threatened by the teens and that they suddenly swarmed around him as he and other activists were wrapping up the march and preparing to leave.\u201d<\/li>\n
- \u201cPhillips, who was singing the American Indian Movement song that serves as a ceremony to send the spirits home, said he noticed tensions beginning to escalate when the teens and other apparent participants from the nearby March for Life rally began taunting the dispersing indigenous crowd.\u201d<\/li>\n
- \u201cA few people in the March for Life crowd began to chant \u2018Build that wall, build that wall,\u2019 he said.\u201d<\/li>\n
- \u201c\u2018It was getting ugly, and I was thinking: \u2018I\u2019ve got to find myself an exit out of this situation and finish my song at the Lincoln Memorial,\u2019 Phillips recalled. \u2018I started going that way, and that guy in the hat stood in my way and we were at an impasse.\u00a0 He just blocked my way and wouldn\u2019t allow me to retreat.\u2019\u201d<\/li>\n
- \u201c\u2018It clearly demonstrates the validity of our concerns about the marginalization and disrespect of Indigenous peoples, and it shows that traditional knowledge is being ignored by those who should listen most closely,\u2019 Darren Thompson, an organizer for the [Indigenous Peoples Movement], said in the statement.\u201d<\/li>\n
- \u201c\u2018We [Bishop Foys and the Diocese of Covington] condemn the actions of the Covington Catholic High School students towards Nathan Phillips specifically, and Native Americans in general,\u2019 the statement said. \u2018The matter is being investigated and we will take appropriate action, up to and including expulsion.\u2019\u201d<\/li>\n
- \u201cChase Iron Eyes, an attorney with the Lakota People Law Project, said the incident lasted about 10 minutes and ended when Phillips and other activists walked away.\u201d<\/li>\n
- \u201c\u2018It was an aggressive display of physicality. They were rambunctious and trying to instigate a conflict,\u2019 he said.\u00a0 \u2018We were wondering where their chaperones were.\u00a0 [Phillips] was really trying to defuse the situation.\u2019\u201d<\/li>\n
- \u201cIn that role, he [Phillips] has encountered anti-Native American sentiment before . . . .\u201d<\/li>\n<\/ul>\n<\/li>\n
- On January 20, 2019, the\u00a0Post<\/em>\u00a0published online its fourth false and defamatory article entitled \u201cOpposed to the dignity of the human person\u2019: Kentucky Catholic diocese condemns teens who taunted vet at March for Life\u201d (the \u201cFourth Article\u201d). A true and correct copy of the Fourth Article is attached hereto as Exhibit G.<\/li>\n
- The Fourth Article referenced the viral @2020fight and\/or Taitano Videos that had gone viral, prominently featuring Nicholas, and emphasized Nicholas\u2019 alleged involvement as being the \u201cteen, shown smirking at him in the video, was blocking him from moving.\u201d<\/li>\n
- The Fourth Article communicated the false and defamatory gist that Nicholas instigated a confrontation with Phillips and engaged in racist conduct.<\/li>\n
- The Fourth Article communicated the false and defamatory gist that Nicholas assaulted Phillips.<\/li>\n
- The Fourth Article communicated the false and defamatory gist that Nicholas\u2019 behavior violated the fundamental standards of his religious community.<\/li>\n
- The Fourth Article communicated the false and defamatory gist that Nicholas\u2019 behavior violated the policies of his school such that he should be expelled.<\/li>\n
- In its Fourth Article, the\u00a0Post<\/em>\u00a0published or republished the following false and defamatory statements:\n
\n- The headline \u201cOpposed to the dignity of the human person\u2019: Kentucky Catholic diocese condemns teens who taunted vet at March for Life.\u201d<\/li>\n
- \u201cA viral video of a group of Kentucky teens in \u2018Make America Great Again\u2019 hats taunting a Native American veteran on Friday \u2026\u201d<\/li>\n
- \u201cA few of the young people chanted \u2018Build that wall, build that wall,\u2019 the man said, adding that a teen, shown smirking at him in the video, was blocking him from moving.\u201d<\/li>\n
- \u201c\u2018We condemn the actions of the Covington Catholic high school students towards Nathan Phillips specifically, and Native Americans in general,\u2019 a statement by the Roman Catholic Diocese of Covington and Covington Catholic High School read. \u2018We extend our deepest apologies to Mr. Phillips. This behavior is opposed to the Church\u2019s teachings on the dignity and respect of the human person. The matter is being investigated and we will take appropriate action, up to and including expulsion.\u2019\u201d<\/li>\n<\/ul>\n<\/li>\n
- On January 20, 2019, the\u00a0Post<\/em>\u00a0published online its fifth false and defamatory article entitled \u201cMost young white men are much more open to diversity than older generations\u201d (the \u201cFifth Article\u201d). A true and correct copy of the Fifth Article is attached hereto as Exhibit H.<\/li>\n
- The Fifth Article emphasized Nicholas\u2019 alleged involvement by stating that \u201cone of their [the students\u2019] members appeared to physically intimidate Nathan Phillips \u2026\u201d<\/li>\n
- The Fifth Article communicated the false and defamatory gist that Nicholas instigated a confrontation with Phillips and subsequently engaged in racist conduct.<\/li>\n
- The Fifth Article communicated the false and defamatory gist that Nicholas assaulted and\/or physically intimidated Phillips.<\/li>\n
- In its Fifth Article, the\u00a0Post<\/em>\u00a0published or republished the following false and defamatory statements:\n
\n- \u201cFriday\u2019s incident near the Lincoln Memorial in which a group of high school boys confronted an elderly Native American man sent a ripple of fear and anger across the country. The image of a group of high school boys clad in \u2018Make America Great Again\u2019 hats, smirking and laughing as one of their members appeared to physically intimidate Nathan Phillips resurfaced tensions that have been simmering since President Trump\u2019s campaign began.\u201d<\/li>\n
- \u201cAt one point, some reportedly chanted, \u2018Build the wall!\u2019\u201d<\/li>\n
- \u201cIt\u2019s clear from Friday\u2019s incident on the Mall that the young men who confronted the Native American protester had somehow internalized that their behavior was acceptable.\u201d<\/li>\n<\/ul>\n<\/li>\n
- On January 21, 2019, the\u00a0Post<\/em>\u00a0published in print its sixth false and defamatory article entitled \u201cFuller view emerges of conflict on Mall\u201d (the \u201cSixth Article\u201d). A true and correct copy of the Sixth Article is attached hereto as Exhibit I.<\/li>\n
- The Sixth Article was published in the\u00a0Post\u2019s\u00a0<\/em>Monday edition of its newspaper.<\/li>\n
- The Sixth Article references Nicholas by name.<\/li>\n
- The Sixth Article communicated the false and defamatory gist that Nicholas instigated a confrontation with Phillips and subsequently engaged in racist conduct.<\/li>\n
- The Sixth Article communicated the false and defamatory gist that Nicholas assaulted and\/or physically intimidated Phillips.<\/li>\n
- The Sixth Article communicated the false and defamatory gist that Nicholas\u2019 behavior violated the fundamental standards of his religious community.<\/li>\n
- The Sixth Article communicated the false and defamatory gist that Nicholas\u2019 behavior violated the policies of his school such that he should be expelled.<\/li>\n
- In its Sixth Article, the\u00a0Post<\/em>\u00a0published or republished the following false and defamatory statements:\n
\n- \u201cThe Israelites and students exchanged taunts, videos show. The Native Americans and Hebrew Israelites say some students shouted, \u2018Build the wall!\u2019\u201d<\/li>\n
- \u201cWhen I took that drum and hit that first beat \u2026 it was a supplication to God,\u201d said Nathan Phillips, a member of the Omaha tribe and a Marine veteran. \u2018Look at us, God, look at what is going on here; my America is being torn apart by racism, hatred, bigotry.\u2019\u201d<\/li>\n
- \u201cWhile the groups argued, some students laughed and mocked them . . . . \u2018They were sitting there, mocking me as I was trying to teach my brothers, so yes the attention turned to them,\u2019 Israel told The Washington Post.\u201d<\/li>\n
- \u201cPhillips said he and his fellow Native American activists also had issues with the students throughout the day. \u2018Before they got centered on the black Israelites, they would walk through and say things to each other, like, \u2018Oh, the Indians in my state are drunks or thieves,\u2019 the 64-year-old said.\u201d<\/li>\n
- \u201cPhillips said he heard students shout, \u2018Go back to Africa!\u2019\u201d<\/li>\n
- \u201c\u2018They were mocking my ancestors in a chant \u2026\u2019 he said.\u201d<\/li>\n
- \u201cJon Stegenga, a photojournalist who drove to Washington on Friday from South Carolina to cover the Indigenous Peoples March, recalled hearing students say \u2018build the wall\u2019 and \u2018Trump 2020.\u2019 He said it was about that time that Phillips intervened.\u201d<\/li>\n
- \u201cMost of the students moved out of his way, the video shows. But Sandmann stayed still.\u00a0 Asked why he felt the need to walk into the group of students, Phillips said he was trying to reach the top of the memorial, where friends were standing.\u00a0 But Phillips also said he saw more than a teenage boy in front of him.\u00a0 He saw a long history of white oppression of Native Americans.\u00a0 \u2018Why should I go around him?\u2019 he asked.\u00a0 \u2018I\u2019m just thinking of 500 years of genocide in this country, what your people have done.\u00a0 You don\u2019t even see me as a human being.\u2019\u201d<\/li>\n
- \u201c\u2018He [Phillips] was dealing with a lot of feelings, as he was being surrounded and not being shown respect,\u2019 the photographer said.\u201d<\/li>\n
- \u201cSchool officials and the Catholic Diocese of Covington released a joint statement Saturday condemning and apologizing for the students\u2019 actions. \u2018The matter is being investigated and we will take appropriate action, up to and including expulsion,\u2019 the statement said.\u201d<\/li>\n<\/ul>\n<\/li>\n
- On January 21, 2019, the\u00a0Post<\/em>\u00a0published online its seventh false and defamatory article entitled \u201cViral standoff between a tribal elder and a high schooler is more complicated than it first seemed\u201d (the \u201cSeventh Article\u201d). A true and correct copy of the Seventh Article is attached hereto as Exhibit J.<\/li>\n
- The Seventh Article references Nicholas by name.<\/li>\n
- The Seventh Article communicated the false and defamatory gist that Nicholas instigated a confrontation with Phillips and subsequently engaged in racist conduct.<\/li>\n
- The Seventh Article communicated the false and defamatory gist that Nicholas assaulted Phillips.<\/li>\n
- The Seventh Article communicated the false and defamatory gist that Nicholas\u2019 behavior violated the fundamental standards of his religious community.<\/li>\n
- The Seventh Article communicated the false and defamatory gist that Nicholas\u2019 behavior violated the policies of his school such that he should be expelled.<\/li>\n
- In its Seventh Article, the\u00a0Post<\/em>\u00a0published or republished the following false and defamatory statements:\n
\n- \u201cThe Israelites and students exchanged taunts, videos show. The Native Americans and Hebrew Israelites say some students shouted, \u2018Build the wall!\u2019\u201d<\/li>\n
- \u201cWhen a Native American elder intervened, singing and playing a prayer song, scores of students around him seem to mimic and mock him, a video posted Monday shows.\u201d<\/li>\n
- \u201cThe Kentucky teens\u2019 church apologized on Saturday, condemning the students\u2019 actions.\u201d<\/li>\n
- \u201c\u2018When I took that drum and hit that first beat \u2026 it was a supplication to God,\u2019 said Nathan Phillips, a member of the Omaha tribe and a Marine veteran. \u2018Look at us, God, look at what is going on here; my America is being torn apart by racism, hatred, bigotry.\u2019\u201d<\/li>\n
- \u201cWhile the groups argued, some students laughed and mocked them . . . .\u201d<\/li>\n
- \u201c\u2018They were sitting there, mocking me as I was trying to teach my brothers, so, yes, the attention turned to them,\u2019 Israel told The Washington Post.\u201d<\/li>\n
- \u201cPhillips said he and his fellow Native American activists also had issues with the students throughout the day. \u2018Before they got centered on the black Israelites, they would walk through and say things to each other, like, \u2018Oh, the Indians in my state are drunks or thieves,\u2019 the 64-year-old said.\u201d<\/li>\n
- \u201cPhillips said he heard students shout, \u2018Go back to Africa!\u2019\u201d<\/li>\n
- \u201c\u2018They were mocking my ancestors in a chant . . . .\u2019 he said.\u201d<\/li>\n
- \u201cJon Stegenga, a photojournalist who drove to Washington on Friday from South Carolina to cover the Indigenous Peoples March, recalled hearing students say \u2018build the wall\u2019 and \u2018Trump 2020.\u2019 He said it was about that time that Phillips intervened.\u201d<\/li>\n
- \u201cMost of the students moved out of his way, the video shows. But Sandmann stayed still.\u00a0 Asked why he felt the need to walk into the group of students, Phillips said he was trying to reach the top of the memorial, where friends were standing.\u00a0 But Phillips also said he saw more than a teenage boy in front of him.\u00a0 He saw a long history of white oppression of Native Americans.\u00a0 \u2018Why should I go around him?\u2019 he asked.\u00a0 \u2018I\u2019m just thinking of 500 years of genocide in this country, what your people have done.\u00a0 You don\u2019t even see me as a human being.\u2019\u201d<\/li>\n
- \u201c\u2018He [Phillips] was dealing with a lot of feelings, as he was being surrounded and not being shown respect,\u2019 the photographer said.\u201d<\/li>\n
- \u201cSchool officials and the Catholic Diocese of Covington released a joint statement Saturday condemning and apologizing for the students\u2019 actions. \u2018The matter is being investigated and we will take appropriate action, up to and including expulsion,\u2019 the statement said.\u201d<\/li>\n<\/ul>\n<\/li>\n
- The First, Second, Third, Fourth, Fifth, Sixth, and Seventh Articles are collectively referred to herein as the \u201cArticles.\u201d<\/li>\n
- On January 19, 2019, the\u00a0Post<\/em>\u00a0also posted to its Twitter page and published to approximately 13 million followers its First Article with the following false and defamatory captions, all within a span of 14 minutes, and all within the same thread:\n
\n- \u201cIn an interview with The Post, Omaha Tribe elder Nathan Phillips says he \u2018felt like the spirit was talking through me\u2019 as teens jeered and mocked him.\u201d<\/li>\n
- \u201cHe was singing the American Indian Movement song of unity that serves as a ceremony to send the spirits home. \u2018It was getting ugly, and I was thinking: \u2018I\u2019ve got to find myself an exit out of this situation and finish my song at the Lincoln Memorial.\u2019\u201d<\/li>\n
- \u201cPhillips, who fought in the Vietnam War, says in an interview \u2018I started going that way, and that guy in the hat stood in my way and we were at an impasse. He just blocked my way and wouldn\u2019t allow me to retreat.\u2019\u201d<\/li>\n<\/ul>\n<\/li>\n
- These three tweets are collectively referred to herein as the \u201cTweets,\u201d true and correct copies of which are attached hereto as Exhibit K.<\/li>\n
- In addition to the false and defamatory gists of the First Article, the Tweets also independently communicated the false and defamatory gists that Nicholas engaged in racist conduct and that Nicholas assaulted Phillips.<\/li>\n
- The Tweets and Articles are collectively referred to herein as the \u201cFalse and Defamatory Accusations.\u201d<\/li>\n
- As the natural and foreseeable consequence of its actions, the\u00a0Post\u00a0<\/em>knew and intended that its False and Defamatory Accusations would be republished by others, including media outlets and others on social media.<\/li>\n<\/ol>\n
NICHOLAS IS A PRIVATE FIGURE<\/strong><\/p>\n\n- Nicholas is a private figure for the purposes of this defamation action, having lived his entire life outside of the public eye.<\/li>\n
- Prior to the January 18 incident, Nicholas had no notoriety of any kind in the community at large.<\/li>\n
- Nicholas did not engage the public\u2019s attention to resolve any public issue that could impact the community at large.<\/li>\n
- Nicholas made no public appearances prior to the false accusations against him.<\/li>\n
- Nicholas has not inserted himself into the forefront of any public issue.<\/li>\n
- Nicholas\u2019 limited public statements after the accusations against him were reasonable, proportionate, and in direct response to the false accusations against him and do not render Nicholas a limited purpose public figure.<\/li>\n<\/ol>\n
THE\u00a0POST<\/em>\u00a0PUBLISHED NEGLIGENTLY AND WITH ACTUAL MALICE<\/strong><\/p>\n\n- The\u00a0Post<\/em>\u00a0published its False and Defamatory Accusations negligently and with actual knowledge of falsity or a reckless disregard for the truth.<\/li>\n
- As one of the world\u2019s leading news outlets, the\u00a0Post<\/em>\u00a0knew but ignored the importance of verifying damaging, and in this case, incendiary accusations against a minor child prior to publication.<\/li>\n
- The negligence and actual malice of the Post is demonstrated by its utter and knowing disregard for the truth available in the complete video of the January 18 incident which was available contemporaneously with the edited clip the Post chose because it appeared to support its biased narrative.<\/li>\n
- Instead of investigation and publishing the true story, the\u00a0Post<\/em>\u00a0recklessly rushed to publish its False and Defamatory Accusations in order to advance its own political agenda against President Trump.<\/li>\n
- In doing so, the\u00a0Post<\/em>\u00a0lifted the incident from social media and placed it in the mainstream media, giving its False and Defamatory Accusations credibility and permanence.<\/li>\n
- The\u00a0Post<\/em>\u00a0negligently published its False and Defamatory Accusations by departing from the reasonable standard of care employed by journalists, including those standards articulated by the Society of Professional Journalists\u2019 Code of Ethics.<\/li>\n
- The\u00a0Post\u2019s<\/em>\u00a0collective conduct demonstrates a purposeful avoidance of the truth and the publication of the False and Defamatory Accusations with actual knowledge of falsity following its review of the complete video evidence and Nicholas\u2019 statement no later than January 20.<\/li>\n
- The\u00a0Post<\/em>\u00a0negligently and recklessly published its False and Defamatory Accusations by failing to conduct a reasonable investigation prior to publication.<\/li>\n
- The\u00a0Post\u2019s<\/em>\u00a0failure to investigate is heightened where, as here, the January 18 incident was not breaking news and involved a minor child.<\/li>\n
- The\u00a0Post\u00a0<\/em>negligently and recklessly published its False and Defamatory Accusations by failing to conduct a reasonable investigation by not having a credible or reliable source for its publications.<\/li>\n
- The\u00a0Post\u00a0<\/em>negligently and recklessly published its False and Defamatory Accusations by relying on unreliable and biased sources with questionable credibility.<\/li>\n
- Indeed, the\u00a0Post<\/em>\u00a0negligently and recklessly relied upon only Phillips and other Native Americans with a biased pre-disposition.<\/li>\n
- Phillips, himself, is wholly unreliable and lacks credibility as shown in part by his false claim to have served in Vietnam while a member of the military, as a professional activist with a known bias against President Trump and his supporters, his documented history of making similar false accusations, his use of the January 18 incident to promote his own political and personal agenda, the contradictions in his story established in his interviews, and that the video evidence that totally refute his story.<\/li>\n
- The\u00a0Post<\/em>\u00a0published its False and Defamatory Accusations in continued reliance upon those it knew to have political and personal biases, including Chase Iron Eyes of the Lakota People Law Project who was, in effect, managing and\/or representing Phillips, Jon Stegenga who had also attended the Indigenous Peoples March, Deb Haaland who is a politician with a demonstrable bias against President Trump, and the Hebrew Israelites whose lack of credibility is widely known.<\/li>\n
- The\u00a0Post<\/em>\u00a0had obvious reasons to doubt the veracity of its purported firsthand sources, including because they are manifestly biased and because the short video evidence on which the\u00a0Post<\/em>relied did not show Nicholas or the students swarming Phillips, uttering the chants or slurs they were accused of making, or Nicholas or the students blocking Phillips\u2019 egress.<\/li>\n
- The\u00a0Post<\/em>\u00a0further had reason to doubt the veracity of its social media sources, including Kaya Taitano and @2020fight. Kaya Taitano also had a known bias having been present to support the Indigenous Peoples March, and the @2020fight account bore all the hallmarks of being a fraudulent account with a political agenda, as later proven true.<\/li>\n
- The\u00a0Post<\/em>\u00a0consciously elected to ignore this contrary information in favor of its pre-conceived false narrative against President Trump and his supporters.<\/li>\n
- The only category of individuals present at the January 18 incident that the\u00a0