For weeks this past November, much of the nation was glued to their TV screens, watching the trial of 18 year old Kyle Rittenhouse, accused of attempted murder and intentional murder for the shooting of one person, and the deaths of two others. On November 19, 2021 a Wisconsin jury found Rittenhouse Not Guilty on all counts.
For most cases, this would be the end of the line – the jury has spoken, the defendant is free, the courtroom is available for the next trial. But the Rittenhouse case was not the average criminal matter.
“Before the verdict, left-wing coverage of the case was…vitriolic. MSNBC contributor Jason Johnson compared Rittenhouse to a ‘school shooter,’ while MSNBC’s John Heilemann said he is ‘arguably a domestic terrorist.’ MSNBC’s Joy Reid and Nicolle Wallace referred to him as a ‘vigilante,’ and Rep. Gwen Moore, D-Wis., used the ‘White supremacist’ term when talking about Rittenhouse during an appearance on CNN in March. President Biden lumped Rittenhouse in with White supremacists in a video shared last year on Twitter. ‘The View’ co-host Sunny Hostin said Rittenhouse murdered two people, and fellow co-host Whoopi Goldberg reiterated that sentiment…while discussing his acquittal. Far-left ‘Young Turks’ host Cenk Uygur called him ‘deeply racist’ and said he ‘murdered a couple of people.’ ‘A white, Trump-supporting, MAGA-loving Blue Lives Matter social media partisan, 17 years old, picks up a gun, drives from one state to another with the intent to shoot people,’ Heilemann said of Rittenhouse last year…”
Was Rittenhouse a “vigilante” who drove to another state “with the intent to shoot people?” Not according to the evidence submitted to the jury;
“Rittenhouse fatally shot Joseph Rosenbaum, 36, and Anthony Huber, 26, on Aug. 25, 2020, during rioting in Kenosha, Wis…(h)e also wounded Gaige Grosskreutz, 27. The still photos of Rittenhouse walking on a street with an AR-15 rifle strapped to his back triggered widespread outrage…(when he testified) Rittenhouse described how he spent the day cleaning off graffiti from the high school and how he was asked by a business owner to protect his building. He also described how he brought a medical kit and gave aid to people injured during the rioting…(f)rom the outset, Rosenbaum, 36, was portrayed as a menacing, violent actor. A convicted child molester, he was described by various witnesses as threatening Rittenhouse and others… Grosskreutz fared little better. He admitted under cross-examination that Rittenhouse did not shoot him when he had his hands up after a confrontation. Instead, he admitted, Rittenhouse shot only after Grosskreutz pointed his own 9mm handgun at Rittenhouse’s head. The jury heard how Rittenhouse was chased as Huber struck him repeatedly with a skateboard and someone else hit him in the head with a rock.”
Was Rittenhouse a “white supremacist” and “deeply racist?” According to David Marcus, writing for the New York Post, “He is white, and so are the three men he shot…(p)resumably, what the liberal media (and President Joe Biden, by the way) think makes him a ‘white supremacist’ is that he was protecting property during a riot that was backlash to a police shooting of a black man… To the left, systemic racism, as they call it, infects every aspect of our lives, all the time. So, of course Rittenhouse is a white supremacist because he didn’t think burning down a car dealership was an acceptable way to combat this ubiquitous racism.”
In particular, the comments by then Presidential candidate Joe Biden deserve further examination.
On September 30, 2020, Biden posted this tweet; “‘There’s no other way to put it: the President of the United States refused to disavow white supremacists on the debate stage last night’…The remarks were accompanied by a video showing White nationalists marching in Charlottesville, Virginia, and other images. A voice-over of Fox News’ Chris Wallace is heard asking then-President Trump during a presidential debate if he was willing to condemn White supremacists and militia groups. At one point in the video, an image of Rittenhouse shows him holding an AR-style rifle on the night he killed two protesters and wounded a third in Kenosha, Wisconsin, during unrest after the police shooting of Jacob Blake a month earlier.”
According to lawyer Todd McMurtry, who represented “Covington kid” Nicholas Sandmann in his settlement with CNN of a defamation lawsuit, “‘What you take from that tweet is that Kyle Rittenhouse was using his rifle and engaging in White supremacist misconduct so it’s actionable,’ McMurtry told Fox News.”
In order to bring a case for defamation, “under U.S. law a plaintiff…must prove that (a) publisher failed to do something she was required to do. Depending on the circumstances, the plaintiff will either need to prove that the defendant acted negligently, if the plaintiff is a private figure, or with actual malice, if the plaintiff is a public figure or official. Celebrities, politicians, high-ranking or powerful government officials, and others with power in society are generally considered public figures/officials and are required to prove actual malice. Unlike these well-known and powerful individuals, your shy neighbor is likely to be a private figure who is only required to prove negligence if you publish something defamatory about her. Determining who is a public or private figure is not always easy. In some instances, the categories may overlap.”
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On the other hand, once charged with a crime, particularly one as notorious as this, Rittenhouse could be viewed as a “limited purpose” public figure. In the usual case, a “limited purpose” public figure is one who has ” thrust themselves to the forefront of particular controversies in order to influence the resolution of the issues involved.” (See) Gertz v. Robert Welch Inc., 418 U.S. 323 (U.S. 1974).
“As regards figures who become prominent through involvement in a current controversy, the law is unfortunately rather murky. In general, emphasis is placed not on whether the controversy is a subject of public interest, but rather: The depth of the person’s participation in the controversy; The amount of freedom he or she has in choosing to engage in the controversy in the first place (e.g., if they were forced into the public light). See Wolston v. Reader’s Digest Association, 443 U.S. 157 (1979); Whether he has taken advantage of the media to advocate his cause. See Time, Inc. v. Firestone, 424 U.S. 448 (U.S. 1976).”
If deemed a public figure, limited or otherwise, Rittenhouse will have to show actual malice – that is, “the plaintiff must produce clear and convincing evidence that the defendant actually knew the information was false or entertained serious doubts as to the truth of his publication. In making this determination, a court will look for evidence of the defendant’s state of mind at the time of publication and will likely examine the steps he took in researching, editing, and fact checking his work…”
This may not be so difficult a standard to meet, in this particular instance. As reported by Fox News, “‘It’s just breathtaking, some of the things being said, being written…the misinformation continues to flow to this day,’ Guy Benson said…on ‘Outnumbered.’ ‘I saw example after example…of news articles from actual news organizations, supposedly with lawyers of editorial oversight, getting basic facts wrong about the case, about the trial, about the Jacob Blake police shooting from last summer that was sort of the triggering event of the rioting,’ Benson continued. ‘Details, of course, matter … we have larger truths being spewed all over the place that are, in fact, not truths at all. Falsehoods.'”
Before the verdict, media outlets might have had a stronger argument regarding their lack of malice. But once Rittenhouse was acquitted, after the facts of the incident were established before a jury, there can be no argument about the ability to check facts, or the state of mind of much of the left wing media. “MSNBC, which was banned from the courtroom after it was accused of having one of its journalists following the jury’s bus, published an opinion piece headlined, ‘Kyle Rittenhouse trial was designed to protect white conservatives who kill.’ NBC News anchor Lester Holt suggested Rittenhouse was able to ‘provoke’ a violent situation and then successfully claim self-defense in the court of law. NBC anchor Maria Shriver even tweeted that it was ‘stunning’ the jury let Rittenhouse walk and MSNBC’s Reid compared Rittenhouse to “slave catchers,” claiming both got away with inciting violence in the name of protecting property.”
Should the Rittenhouse family go forward with litigation? Let us look to the example of Nicholas Sandmann, mentioned earlier. “Sandmann is the teenager who sued CNN and the Washington Post for $275 million and $250 million, respectively, for their portrayal of him in their reporting as a racist, following his interaction with a Native American man at the 2019 March for Life rally in Washington, D.C…(i)f Sandmann was successful in forcing a settlement from two of the most prominent media organizations in the country, why couldn’t Rittenhouse achieve the same result? A settlement is the more likely outcome when suits are filed, because media organizations loathe being the focus of bad press, bad PR. Examples of the media portraying Rittenhouse as a white supremacist and declaring him guilty of murder are plentiful. The last thing any news organizations should want is to have those clips playing over and over on social media and elsewhere, which is what would happen if a high-profile suit moved forward.”
Whether Kyle Rittenhouse decides to sue the media that vilified him, and continues to do so even after his acquittal, is entirely his own decision. But this young man may decide to bring suit for the reasons outlined by Nicholas Sandmann in the Daily Mail – “News shouldn’t be a scoreboard that constantly changes. News is about coverage that includes a statement of facts that does not need to be corrected. But, the liberal media doesn’t do this… if Kyle is prepared to take on another burden in his early life, with the acceptance that it might result in nothing, I answer, give it a shot and hold the media accountable. One of the saddening parts of this media onslaught is that it has taken young people like Kyle and myself to expose how corrupt the media really is.”
Good Faith disclosure – the author contributed to the Kyle Rittenhouse Defense Fund – twice.
Judge John Wilson (ret.) served on the bench in New York City.