Jack Out of the Box blog

DOES KYLE RITTENHOUSE HAVE A LIBEL CASE?

In statements following the verdict in the Kyle Rittenhouse trial, Florida Governor Ron Desantis weighed in with some serious and well thought out comments about the state of libel law.  Just kidding.  What he actually did was rant about the need for state governments to make it easier to bring defamation cases against “corporate media.”  The Governor, however, is not satisfied with simply loosening up the laws so folks like Rittenhouse can tee off on the media.   He apparently wants “entities who advertise on corporate media outlets that routinely lie and defame innocent people” to be “held accountable,”  i.e. have their pants sued off.  In other words corporate America, advertise solely on Fox News, or God help you.

There are lots of things wrong with the Governor’s position.  For starters, much of the protections for libel defendants are matters of constitutional law.  In New York Times v. Sullivan, the U.S. Supreme Court made it clear that the First Amendment protects speakers from libel claims under appropriate circumstances.  Later cases expanded that holding.  In addition, common law, as well as the constitution,  has always protected speakers from liability for expressing their opinions – even unfounded ones.  So if I quote Buddy the Elf and call the Governor a “cotton headed ninny muggin” I would merely be expressing an opinion and not liable for defamation, even though, presumably, the Governor’s head is not made of cotton.  The point is, local governments can’t override the Supreme Court.

And the idea of imposing liability on advertisers, who have no control over the content of the broadcasted speech, should be a constitutional non-starter.  This seems designed to choke off advertising revenue for platforms that dare to question the status quo.

And getting back to Mr. Rittenhouse, he will likely have a tough road if he does bring a suit.  I suspect he would sue for comments to the effect that he is a white supremacist.  But whether or not that assessment is correct, it is fundamentally opinion.  It may be ill founded, but as the Supreme Court has said “there is no such thing as a false opinion.”  And bear in mind, the jury wasn’t asked to decide if Mr. Rittenhouse is a white supremacist, so its verdict doesn’t change the calculus.   In one person’s view, Mr. Rittenhouse is a law abiding citizen who came to Kenosha to render assistance.  He brought a gun because it was a dangerous environment.    In another person’s view, he was an assault rifle toting vigilante looking for trouble.  Both are opinions.

New York Times v. Sullivan has served us well for 57 years now.  Governor Desantis may not like it, but that is no reason to throw it out.