Free Speech

Is It Defamatory to Call Kyle Rittenhouse -- or Anyone Acquitted of Murder -- a "Murderer"?

Generally no.

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False factual allegations about someone may well be libelous, but opinions are not. Is saying "Kyle Rittenhouse is a murderer" or "O.J. Simpson is a murderer" a factual assertion or a statement of opinion?

It depends on whether the statement is reasonably understood as (1) implying that the speaker knows undisclosed, unpublicized facts that implicate the target (potentially actionable), or (2) expressing the speaker's opinion about the facts that had been publicly discussed (not actionable). For instance, consider two more detailed statements:

  1. "I had a conversation with Rittenhouse yesterday, and he told me a lot about what happened. The man is a murderer." Actionable factual assertion (which is to say that it could lead to liability).
  2. "I've watched a lot of coverage of the case, and the jury got it wrong. The man is a murderer." Nonactionable opinion (which is to say that, as a matter of law, it's generally not libel).

The question is whether, in context, the bare statement "Rittenhouse is a murderer" implies what is set forth in (1) above or what is set forth in (2). Generally speaking, I suspect that most statements of the "Rittenhouse is a murderer" variety would be opinions, because listeners wouldn't think the speaker has any special knowledge beyond what we've seen in the news.

If you want an example, check out Gisel v. Clear Channel Communications, Inc. (N.Y. App. Div. 2012):

Plaintiffs … [sued] based on statements made by defendant Robert Lonsberry, the host of a radio talk show that aired on a station owned by defendant Clear Channel Communications, Inc. The statements at issue were made during an on-air discussion that [Robert] Lonsberry had with … Jacqueline Inzinga the day after her brother, John Gisel …, was acquitted of criminally negligent homicide for fatally shooting a man in a hunting accident. According to plaintiffs, Lonsberry asked Inzinga "how it felt to have a brother who was 'a cold-blooded murderer' " and whether plaintiff "'put a notch in the stock of his gun as he kills people?,'" and Lonsberry told Inzinga "that the hunting incident could not have been an accident…." …

[E]ach of Lonsberry's statements at issue constituted a nonactionable expression of pure opinion…. Because Lonsberry's statements were based on facts that were widely reported by Western New York media outlets and were known to his listeners, it cannot be said that his statements were based on undisclosed facts….

Further, the context in which the statements were made supports the conclusion that a reasonable listener would not have thought that Lonsberry was stating facts. Lonsberry's show used a call-in format and generally provided a forum for public debate on newsworthy topics, and his statements were made during an on-air debate with his listeners regarding plaintiff's culpability and whether the jury had properly acquitted plaintiff. Lonsberry had engaged his listeners in similar debates regarding plaintiff's culpability on several previous occasions. In addition, some of Lonsberry's callers used "harsh and intemperate language," and the tone of Lonsberry's statements was obviously intended to be caustic and confrontational, rather than factual. We therefore conclude that defendants established their entitlement to judgment as a matter of law that the statements in question were "expression[s] of [pure] opinion [that were] not actionable" ….

Illinois law follows this distinction between statements that sufficiently imply the existence of undisclosed facts (which may be actionable) and statements that don't do so and are thus seen as opinion based on widely-discussed facts (and therefore not actionable). Because Rittenhouse lives in Illinois, it is Illinois law that would likely apply to a libel claim.

Of course, more specific factual assertions may well be libelous, if they are false and tend to damage his reputation. I'm just talking here about claims that he's a murderer.

NEXT: Could Kyle Rittenhouse Be Sued for Negligence?

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  1. I understand the point that Prof. Volokh is making about opinion vs. an ascertation of fact, but he may have a bad example. The reason is this.

    The term 'murderer' is not a well defined term. At one end of the spectrum the term can mean a person who committed the crime of murder which is probably the way in which Prof. Volokh is using the term. But at the other end of the spectrum the term can mean 'one who kills another human being, period' and in no way connotates a crime. If a person says that Kyle Rittenhouse is a 'murderer' in the sense that he killed another human being, period then that is a factual statement which cannot be defamatory or libel.

    And if a person were to clarify and say 'Kyle Rittenhouse is guilty of the crime of murder' that would seem to have to be classified opinion that although Rittenhouse was found not guilty of the crime of murder, given the widespread nearly universal knowledge that Rittenhouse was tried and found not guilty calling the statement that he is guilty of criminal murder would seem to be the only reasonable interpretation of the statement. (If the Rittenhouse case were not so heavily reported on and publicized the statement he is guilty of the crime of murder might be libelous).

    For the same reason those who state Joe Biden 'is not the legally elected President of the United States' must be voicing opinion since it is common knowledge, widely spread and a matter of fact legally and constitutionally that Joe Biden is the legally elected President. Those who claim otherwise are not committing libel, they are only exposing their ignorance and denial of reality.

    1. That's more or less what I came here to say as well. If I heard someone say that 'X is a murderer', I would probably take that to refer to some general accusation of intentional killing, not to a specific set of definitions under the laws of a specific jurisdiction. That is particularly true if the speaker is not a lawyer.

    2. Good point.

      If the plaintiff was convicted of burglarizing a house and sues the defendant for saying the he robbed the house, can the defendant point out that she and many other people refer to "a house being robbed" where the law insists the correct term is "burglary"?

  2. Is there any state that would impose liability for accusations that Rittenhouse is a murderer, when the statement is based on online outrage rather than undisclosed facts? It might pay to go forum shopping by moving to one.

    1. Welcome to the libel capital of the world. (Although the law has been amended since then to make forum shopping a bit harder.)

  3. I wonder if it a complete defense to libel/slander if one clearly and prominently states "In my personal opinion" or similar?

    I know that the law hates absolutes, but I wonder if this works?

    1. Milkovich v. Lorain Journal answered that question with a "no". The test is how a reasonable audience would interpret the statement, not what magic words the speaker used.

    2. No. The rule is whether a reasonable listener or reader would understand it to be a claim of fact. You cannot say "In my personal opinion, Jane smokes crack every Saturday" and rely on the first clause to indemnify you.

      There's a fairly classic hypothetical illustrating this, I think from an edition of the Restatement of Torts. If you say you think your neighbor is a drunk, that offends the law because it implies facts that lead to the conclusion. If you say that you see him listening to the radio at 5 o'clock every afternoon with a beer in hand, and so you think he is a drunk, that adequately discloses the underlying facts. If those facts are sufficiently false as to be tortious, they might get you in trouble, but the conclusion that he is a drunk is a protected expression of opinion.

      1. Why are we saying that saying "In my personal opinion," standing all by itself, necessarily implies facts, that are not protected?

        Didn't we just go through a complex analysis above as to whether a reasonable listener would believe that the declarant is basing his statement on (false) "facts? Is the reason hypothetical 2 above deemed ok because the declarant stated that his opinion was not based on any special facts known only to him? Why is that even necessary?

        If I were to say that "My personal opinion is that Eugene G. is a rapist," why does that *necessarily* imply that I have hidden facts?

        1. Why are we saying that saying "In my personal opinion," standing all by itself, necessarily implies facts, that are not protected?

          We are not. It's just that saying "In my personal opinion" does not automatically protect whatever follows it.

          If I were to say that "My personal opinion is that Eugene G. is a rapist," why does that *necessarily* imply that I have hidden facts?

          It is essentially unknown to make that kind of accusation without any basis. Normal people don't do that, so the default assumption will be that you know something further that supports the conclusion that the subject is a rapist.

          1. I'm not sure that's what "in my personal opinion" connotes. I hear it in contexts where the speaker wishes to clarify there are no further facts. E.g., "That guy looks creepy. In my personal opinion, he's a pervert and probably a rapist. I haven't seen him do anything myself, though."

            Normal people make accusations without evidence all the time. Not doing so is a peculiar discipline.

  4. Professor Volokh, thanks for answering a question I had earlier today about the likelihood of Rittenhouse suing for defamation and actually prevailing (settlement counts as prevailing).

    1. Except that what he wrote doesn't necessarily answer that question.

      What if the defamation is not the opinion that he is a murdererer, but the description of him as a white supremacist?

  5. I suppose it is nitpicking, but calling someone a murderer is always defamatory*, the question is whether it is actionable defamation.

    *Possibly excepting someone who moves in circles where their reputation is actually enhanced by the label.

  6. "Generally speaking, I suspect that most statements of the "Rittenhouse is a murderer" variety would be opinions, because listeners wouldn't think the speaker has any special knowledge beyond what we've seen in the news."

    But that isn't a defense for the *news* doing it, is it? (1) They do have 'special information' by definition - reporters investigate stories to get the facts and details, and (2) the public expects them to distill those facts down to an understandable true story, a report about what happened.

    1. I think the argument would be that the people saying "Rittenhouse is a murderer" are relying on facts that are widely known among the audience, and so the assertion does not imply undisclosed defamatory facts.

      One big problem with that argument is that many of those facts were simply wrong -- assertions like Rittenhouse bringing the gun across state lines, or him going to Kenosha to police a protest, or him not being chased or attacked before shooting anyone, or him shooting three black men (see Ben_'s link below).

      1. Accusations that he fired off 60+ rounds....

        Someone needs to compile every single lie said about this case by reporters.

    2. I don't think a reasonable member of the public will mistake a news show for a court of law.

      1. I would mistake the news for a kangaroo court.

      2. But would a reasonable member of the public mistake a news show for facts instead of opinion?

        1. Not if it's helmed by Rachel Maddow, according to the US judiciary.

          1. Maddow is not the 5pm news.
            Opinion shows across the board seem to have wide leeway under the law.

            1. I have learned that if I cite a story from Reuters or Associated Press that I found on Fox News, I had better link the Reuters or AP story and not the Fox News story.

              The left draws no distinction between Fox News and Fox Opinion and they definitely treat Rachel Maddow as a competent news source.

              1. FOX's News department is more entwined with their opinion side than the rest of cable media, but that's not enough to dismiss them out of hand.

                Luckily Internet arguers don't really tell you a lot about the state of defamation law.

            2. Th courts have told us that if Maddow says Rittenhouse is "literally a white supremacist" that no one should believe that she intends you to take her seriously.

              1. I believe it was Tucker Carlson who first blazed the trail of that argument.

                1. No, Maddow was first. The OANN case against Maddow was dismissed in May 2020; the McDougal case against Carlson that September. Glenn Greenwald wrote that the defenses made their arguments more like a year apart.

    3. "and (2) the public expects them to distill those facts down to an understandable true story, a report about what happened."

      Given polls concerning how trustworthy the media are, I question whether the public expects any such thing.

  7. He can at least sue the Independent for saying he shot 3 black men:

    https://dailycaller.com/2021/11/19/the-independent-falsely-stated-rittenhouse-shot-3-black-men-kyle-rittenhouse/

    Here’s hoping that many news outlets have the opportunity to pay to defend their false reporting in years-long court fights.

    1. Actual malice (read: reckless disregard) would be pretty hard to prove even there.

      1. Even before you go there he would need to argue that the color of his targets was significant, i.e. that the statement wasn't substantially true.

        1. he would need to argue that the color of his targets was significant

          I take it you must have recently arrived on this planet. Otherwise, come on.

          1. What's the theory of damage where blackness of victims is material?

            1. This is a highly peculiar time for you to retreat to playing the color-blind card. You know better.

              1. Race matters sometimes, sometimes it does not.

                What is your argument that this is a time it matters?

              2. If the article said, "he was trying to shoot black people because he is a white supremecist trying to commit a hate crime by lynching blacks" yeah that might be enough.

                A blanket statement of fact that he shot black people as opposed to white people, who were actually shot ... even if you say it was because he is a white supremecist, he could still be a white supremecist by shooting white people at a BLM rally / riot / whatever. Its not enough, even if it is provably false.

            2. They’re the specific people whose lives matter.

              1. What do you mean by this?

                1. What does it mean when people say black lives matter? You'd want to ask the people who go out of their way to say that.

                  KR has be falsely accused of shooting people who matter instead of shooting just anyone.

                  1. Do you think BLM means *only* black lives matter now?

                    What additional damages are there, or are you just being cure?

                    1. S_0, do you believe "All Lives Matter"?

                    2. I believe these are all slogans, and taking them literally is a trick for rubes.

                      Given the history of the use of 'All Lives Matter', I think you and I both know why you brought it up, Luckily, in this respect at least, I am not a rube.

                    3. When anyone replies the others also matter they get name-called and accused of something. It’s a very exclusive message and the people who say it quickly and aggressively police that exclusivity.

                    4. So your theory of damages is name calling.

                      Good luck with that.

                    5. No, that’s a way of showing what "black lives matter" means. It's exclusive.

                    6. Don't be stupid, Sarcastro. Of course BLM means only black lives matter, or else when somebody says "All lives matter" the BLM people would respond, "Exactly", instead of getting mad.

                      But they do get mad if you say all lives matter. How can that be understood as anything but them denying that?

                    7. How can that be understood as anything but them denying that?

                      Because words aren't said in a vacuum. Slogans are allusions to ideas rather than literal phrases.

            3. Those claiming outrage at the acquittal tend to be those who believe they were black victims in a peaceful BLM demonstration, rather than white attackers with police records acting out on a third day of a riot with vandalism and arson.

              1. 1) That's not material
                2) Who cares about outrage claimers in a torts case?
                3) Got any proof of that?

                1. 1. It’s material if KR can show it has a material effect. Does it? We will see.

                  2. If it causes calculable damages, the answer may be that the plaintiff and defendant care.

                  1. If you're going to posit a speculative lawsuit, you should probably include a speculative damages claim.

                    1. Speculation: someone reads it, believes it, decides not to hire KR or deal with KR because of it. KR loses a job or other opportunity because he was defamed.

                    2. Versus if he just shot white people?

                      Yeah...either you're bullshitting or you forgot what this was about.

          2. Do you really want to make that argument? That stating he shot 3 black men as opposed to 3 white men matters enough for actual malace? Because I would absolutely not want to be the lawyer making that argument.

            1. I think that, if the piece stating that he shot 3 black men said anything that was independently defamatory, yeah, the categorical lie should be enough to establish actual malice.

      2. Actual malice (read: reckless disregard) would be pretty hard to prove even there.

        Hmm. It's not as though anyone holds a gun to a journalist's head and forces them to report the race of shooting victims, is it? So if they choose to do so and incorrectly report the race of the victims, that seems to leave you with two choices: (a) they squeezed their eyes shut to a plethora of readily ascertainable public information about the race of the victims and just went with the super-duper inflammatory one; or (b) they didn't care if they were reporting the race correctly or not because they wanted to go with the super-duper inflammatory one.

        Which one of those two do you think doesn't satisfy actual malice/reckless disregard, and why?

        1. You're inferring intent where I don't think you can. Confusion or negligence is more likely. Especially when they're not based in the US.

      3. Malice is pretty much the waking state for journalists these days.

        1. Great virtue signaling.

          1. The vast majority doesn't trust them.

            1. You sure let everyone know you don't like the media!

              We are all very impressed.

              1. It should be easier to get judgments against them now that it’s widely understood that they’re generally malevolent.

                1. Actually, it'd be harder to claim anyone believed them.

                  Didn't think that through, eh?

                  1. No, it’s easy to show that one really gullible, fantasy-prone segment of the population still believes them.

                    1. You don't get to pick what segment of the population your reasonable person is.
                      'Widely understood' more or less completes that analysis.

                    2. The test for whether actionable defamation has taken place is not "what a reasonable person would believe".

        2. Since the 1960s we have had advocacy journalism, spinning the "news" to support social causes. Actually it goes back to Hearst reporting the explosion of USS Maine in Havana harbor as the work of dastardly Spaniards, but it has been more blatant since the 1960s.

          It is not so much "malice" as self-righteous crusading spinning the news to create support for social causes.

          Today's Cuba Communists see the Spanish-American War ending Spanish colonialism as a good thing even if the facts about the USS Maine explosion were mere eggs in the omelette leading to a good end.

          1. There was "advocacy journalism" in this country in the 1700's. Just as blatant and slanted as today.

            1. Sure. The difference between then and now is that back then it wasn't almost all on the same side.

              The media have never been trustworthy, the thing that's different today is that they largely AGREE about what lies to tell.

      4. The only basis they could have had for thinking those three men are/were black is the fact that they were rioting at a BLM protest. Assuming that, especially given last names like Rosenbaum and Grosskreutz, rather than checking any of the easily available photos or other descriptions of them, is quite reckless.

        1. Maybe they just assumed it because the press was talking about the shooting. No way to divide people based on race, no (or minimal) press reports. "What? They weren’t black? Why are we talking about it then?"

        2. Still not "actual malice"

          My understanding was that the reporters in Sullivan were also fairly reckless, but it wasn't enough. Does the statement itself matter?

          1. There were no reporters in Sullivan. It was an advertisement placed in the newspaper.

      5. The entire trial was broadcast on TV and the internet and all the videos of the people he shot are widely available on the internet. Reckless disregard is quite easily satisfied.

        1. I think you are confused.

  8. The Rittenhouse trial appears to have been put on as the inverse to the OJ show:

    Black man allegedly murdered two whites in a personal way and is declared not guilty v. white man who allegedly murdered two whites in a self-defensive way and declared not guilty.

    Racial and social justice animus stoking is the point to each of these cases, whereas the finer points of defamation are subordinate but still instrumental in the label game.

    To me and others, murderer seems a more appropriate appellation for the former and killer in self defense the latter, but these scenarios go far deeper than we can know. The prospect of staging and agenda make everything difficult to parse.

    Many of us do know this: those who maintain that all mainstream news reported events are spontaneous and unknowable beforehand are genuine are likely actually genuine scammers, especially if such news events invite and then demand politically divisive controversy. They have to create chaos to achieve global Great Reset re-ordering. Ordo ab chao.

    1. They have to create chaos to achieve global Great Reset re-ordering.

      Oy.

  9. I don't think the conclusion quite follows. If there is doubt about whether the person actually killed the victim, that would be one thing where an implication of unspoken facts might apply. But whether the question is just whether the person at issue is criminally guilty of murder, or killed somebody but isn't criminally guilty, I don't think that ever would apply.

  10. So is it OK to call someone a rapist when they have been acquitted of rape?
    How about when they have merely been accused?
    I was taught that that was a legal conclusion for a jury to decide, and not an accusation you could use willy-nilly. But I alienated two female regulars who overheard me in the bar.

  11. I wonder about a news agency that reports misleading, inaccurate, and/or false information. Members of the media have been saying: "R crossed state lines with an AR-15." "R had no reason to be in city K." "R fired 60 shots." Add up those statements and then make a conclusion that, "based on these 'facts,' R is a murderer." What then? Media people are conveying rumors as facts, then stating a conclusion based on those rumors...where the accurate information was available. Does that show a reckless disregard for the truth.

  12. There is a third possibility, the one at issue in Kevorkian v. AMA.

    When the context makes clear that ehat you are saulying is that you think what the person did ought to be considered murder, you are expressing an opinion on what the law ought to be, and there is no libel.

  13. I think the more relevant question is:

    If a social media company removed your post stating Kyle Rittenhouse's innocence, claiming that your statement was "misinformation", does that qualify as libel?

    I say yes, because when they call it "misinformation" they're making a factual claim, not a statement of opinion.

    Since Kyle is innocent, and what he did was clearly and obviously self defense, I argue that FB, for example, committed libel by those actions, and should be liable for a rather hefty lawsuit.

    No?

    1. It's not a claim about you, though. Quit grasping at straws.

      1. No, it's a claim about Kyle Rittenhouse. So Kyle Rittenhouse should be able to sue.

        No?

  14. I choose to avoid the argument and say “Kyle Rittenhouse is a killer.”

    1. Is Joe Biden a killer? How about Barack Obama?

      1. I was amused by the description of Obama as "the Nobel Peace Prize winner with the most drone strike kills." Not his fault he won the Peace Prize, so it's irony rather than hypocrisy.

      2. A Google search shows neither Joe Biden nor Barack Obama have ever killed anyone. So unlike Kyle Rittenhouse, who killed two people and maimed a third before his 18th birthday, Joe Biden and Barack Obama are not killers. Any other stupid questions?

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