Accusations and imputations that a plaintiff committed a criminal act are defamatory per se. See, e.g., Lassiter v. Lassiter, 456 F. Supp. 2d 876, 880-81 (E.D. Ky. 2006) (citing Pennington v. Dollar Tree Stores, Inc., 28 Fed. App’x 482, 488 (6th Cir. 2002)); Toler v. Süd-Chemie, Inc., 458 S.W.3d 276, 281-82 (Ky. 2014). The words – when construed as a whole in context of each publication and of NBCUniversal’s entire coverage – must be construed in their most natural meaning and should be measured by the natural and probable effect on the mind of the average lay consumer to determine whether the plaintiff was imputed with such offense. SeeDesai, 2018 WL 297599, at *4 (citing Yancey, 786 S.W.3d at 795)).
In his Amended Complaint, Nicholas alleged that, throughout its publications, NBCUniversal conveyed to viewers and readers that Nicholas’ conduct during the January 18 incident constituted and amounted to an assault and federal hate crime against both Nathan Phillips and the Black Hebrew Israelites. (Am. Compl. ¶¶ 28-29, 33-36, 42-44, 100, 205, 208, 247, 263, 276, 287, 293, 297-301, 307, 311, 329, 345, 364, 381, 397, 408, 425, 439, 455, 467, 493, 510, 522, 538, 548, 557, 584). For example, NBCUniversal’s First Broadcast – entirely based on the
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selectively edited, incomplete, and misleading Viral Video and Phillips’ false factual narrative – accused Nicholas, by broadcasting his face in the Viral Video, of interrupting Phillips’ prayer and song ceremony, instigating a confrontation with him because of his race, and surrounding, harassing, jeering, and taunting Phillips in such a threating manner that Phillips was “scared” and “afeared.” (Id. ¶ 252). The Second Broadcast labeled Phillips’ drum and song a “special ceremony” related to Native American heritage and insinuated that it was Nicholas who first witnessed this “special ceremony” and sought out a confrontation with Phillips from afar with an intention to disrupt Phillips because of his race while he was in the midst of a peaceful, special ceremony. (Id. ¶ 268(d)). The Seventh Article identified Nicholas as the “youth” who “surrounded” Phillips in a “leering and aggressive manner” with “antagonism and hate” and who was racially motivated to threaten Phillips because of his Native American heritage. (Id. ¶ 350). The Fourth Article republished Phillips’ accusation that Nicholas was “roughshodding through [the Native Americans’] space” and “wouldn’t let me move.” (Id. ¶ 541(h), (f)). The Eighth Broadcast republished a statement from Chase Iron Eyes, speaking from his knowledge as an attorney, who said, “[Phillips] apprehended, he felt, there was an apprehension of a legitimate and objective threat of harm or violence or offensive contact.” (Id. ¶ 370(f)).
Under the District of Columbia’s criminal code, “[w]hoever unlawfully assaults, or threatens another in a menacing manner” shall be fined, imprisoned for not more than 180 days, or both. D.C. CODE § 22-404 (2013) (emphasis added). In Washington D.C., the crime of intent- to-frighten assault involves intending “either to cause injury or to create apprehension in the victim by engaging in some threatening conduct; an actual battery need not be attempted.” Robinson v. United States, 506 A.2d 572, 574 (D.C. 1986).17 Under the federal hate crime statute, a person who “intimidates” or “interferes with” any person because of his race, color, religion or national original who was participating in or enjoying any benefit or facility (public accommodation or
17 The crime of “intent-to-frighten assault” requires only general intent “to do the acts which constitute the assault.” Smith v. United States, 593 A.2d 205, 207 (D.C. 1991).
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park) provided by any State, including the District of Columbia, is criminally liable. 18 U.S.C. § 245 (b)(2)(B). The National Mall is a National Park and is described as “America’s front yard” 18 and is the very kind of facility and public accommodation that this statute protects. See U.S. v. Allen, 341 F.3d 870, 876-77 (9th Cir. 2003). It is unquestionable that, when viewed with attention to the words’ natural meaning and the probable effect on the mind of the reader – not with the critical analysis of the legal mind – and in conjunction with the Viral Video republished therein and the tone of voice used by the anchors, the charge of NBCUniversal’s early coverage was that Nicholas, motivated by pure racial hatred, sought to interrupt a pre-existing prayer ceremony that Phillips was conducting at the National Mall (a public accommodation and national park) by walking over to Phillips, in Nicholas’ purported capacity as leader of the student group, and, with the threat to use force, started interfering with Phillips’ ceremony by harassing, jeering, and mocking him in a manner comparable to that prohibited by 18 U.S.C. § 245 (b)(2)(B). In reality, and as alleged in the well-pled allegations of Nicholas’ First Amended Complaint, Nicholas was merely waiting on the stairs of the Lincoln Memorial for a bus that would take him home to Kentucky when Phillips approached him and got into his face beating a drum inches from his head.
Even if these statutes did not apply, defamation law does not require the defendant to have published specific words satisfying each element of a statutory offense for it to be actionable as defamatory per se. See RESTATEMENT § 565 cmt. b (“To be defamatory . . ., it is not necessary that the accusation or other statement be by words.”); RESTATEMENT § 569 cmt. d. It only requires that words be construed with their probable effect on the mind of the average lay viewer or reader.
McCall, 623 S.W.2d at 884. The average viewer or reader would understand the gist of NBCUniversal’s reporting via the juxtaposition of Nicholas’ face in the Viral Video, the MAGA hat, the words “surrounding,” “mocking,” “targeted,” “rip apart,” “taunting,” “roughshodding
18National Park Service, National Mall Information, available at
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through [the Native Americans’] space,” and “leader of,” and the false allegation that Nicholas shouted “build the wall,” to draw the unavoidable conclusion that Nicholas sought out a racially threatening confrontation with both the Black Hebrew Israelites and a Native American elder who was engaged in a peaceful ceremonial prayer.As a result, all of NBCUniversal’s publications, in context of the whole coverage, are capable of a defamatory meaning because they charge Nicholas with committing an assault and a hate crime.
C. NBCUniversal’s Accusations that Nicholas Committed Racist Misconduct Are