Rittenhouse Takes Aim at Free Speech

Corey Friedman
Mon, 07 Mar 2022 15:42:47 -0800
Opinion

Whether Kyle Rittenhouse is your idea of a steely-eyed patriot or a cold-blooded killer, one thing's for sure: the kid is awfully thin-skinned.

The teenager acquitted of murder charges in the fatal shootings of two protesters during civil unrest in Kenosha, Wisconsin, is out to settle some scores. He told Fox News commentator Tucker Carlson he's on a mission to sue news outlets and celebrities who criticized his conduct.

"Me and my team have decided to launch the Media Accountability Project as a tool to help fundraise and hold the media accountable for the lies they said and deal with them in court," Rittenhouse said on the Feb. 21 edition of "Tucker Carlson Tonight."
Updated: Tue Mar 08, 2022

Whether Kyle Rittenhouse is your idea of a steely-eyed patriot or a cold-blooded killer, one thing's for sure: the kid is awfully thin-skinned.

The teenager acquitted of murder charges in the fatal shootings of two protesters during civil unrest in Kenosha, Wisconsin, is out to settle some scores. He told Fox News commentator Tucker Carlson he's on a mission to sue news outlets and celebrities who criticized his conduct.

"Me and my team have decided to launch the Media Accountability Project as a tool to help fundraise and hold the media accountable for the lies they said and deal with them in court," Rittenhouse said on the Feb. 21 edition of "Tucker Carlson Tonight."

He called out Whoopi Goldberg and The Young Turks' Cenk Uygur by name. His beef? They labeled him a "murderer" after jurors found him not guilty.

Rittenhouse said he's also training his legal fire on "everybody who lied about me" by calling him a white supremacist.

Those sharp words may sting, but neither pejorative actually constitutes defamation, libel or slander, torts that require false factual claims likely to damage someone's reputation. Statements of opinion, unlike claims of fact, simply aren't actionable.

Two days after a Kenosha County jury acquitted Rittenhouse, law professor Eugene Volokh addressed the "murderer" question in a blog post. Using the word to denounce Rittenhouse can't be defamatory if it's merely "expressing the speaker's opinion about the facts that had been publicly discussed," Volokh explained.

The only way "murderer" could constitute defamation, he concludes, is if it's used to imply "that the speaker knows undisclosed, unpublicized facts that implicate the target."

No pundit or celebrity on Rittenhouse's legal hit list made such allegations. His critics use the word to express their view that the Kenosha killings were unjustified, and the jury reached the wrong verdict. The First Amendment shields such opinions, no matter how much they upset, irritate and annoy Rittenhouse and his supporters.

In October 2017, the Tennessee Court of Appeals ruled a parent didn't defame a school board speaker by calling him a "white supremacist" in a Facebook post. And in January 2021, a New York federal judge dismissed an anti-immigration activist's suit contending the New York Times defamed him by referring to the self-described "civic nationalist" as a "white nationalist."

The Times' story, U.S. District Judge Katherine Polk Failla wrote, "presents only non-actionable opinion."

Rittenhouse hasn't identified a plausible defamation claim, and any competent lawyer advising him would admit as much. But convincing a jury to award seven-figure damages isn't the only way to win. The endgame could be a sue-and-settle scheme to wring smaller sums from dozens of defendants.

Fox News reports that Rittenhouse has compared notes with Nicholas Sandmann, the Catholic high school student pictured seemingly smirking at Native American elder Nathan Phillips during an anti-abortion rally.

Initial media accounts mischaracterized the confrontation between abortion opponents and Indigenous Peoples March participants, and Sandmann has since collected settlements from The Washington Post, CNN and NBC News.

It's often cheaper to pay a libel troll's toll than to see a case through to its inevitable result. Yet Sandmann and his supporters point to the payouts as vindication. Taking the easy way out could set a backdoor precedent that equates defamation with mere hurt feelings or sour grapes.

News outlets should mount a vigorous defense, First Amendment lawyer Ari Cohn argues.

"Media companies that give nuisance settlements to meritless defamation plaintiffs are only slightly less of a threat to free speech than the plaintiffs themselves," Cohn wrote in a Nov. 24 tweet. "We need widespread anti-SLAPP laws, but we also need the deep pocket defendants to suck it up and take a stand."

Anti-SLAPP statutes put strategic lawsuits against public participation — which often take the form of flimsy libel and defamation complaints — on the fast track to dismissal and sometimes allow defendants to recover legal fees. This essential protection is currently lacking in 19 states, according to the Washington-based Institute for Free Speech.

Rittenhouse says he wants to hold the media accountable. If he sues over speech the First Amendment clearly protects, the media ought to return the favor. Tell Kyle you'll see him in court.