Dershowitz, Sandmann: Rittenhouse could score big-time with defamation suits against media outlets

Sean Krajacic/The Kenosha News via AP, Pool

Isn’t this putting the cart before the horse? While we wait for a jury to decide Kyle Rittenhouse’s fate, the accused likely has his focus on whether he’ll need an appellate attorney and not a tort lawyer. However, both Alan Dershowitz and Nicholas Sandmann have advised over the last few days that Rittenhouse should immediately shift to offense once the jury vindicates him on self-defense.

Dershowitz declared that the real vigilantes in this case fire pixels and video, not bullets, in his interview on Newsmax this past Saturday:

“If I were a juror, I would vote that there was reasonable doubt [and] that he did act in self-defense,” Dershowitz told Newsmax’s “Saturday Report.”

“Then he’ll bring lawsuits, and that’s the way to answer… vigilante justice is what CNN is doing, not what a 17-year-old kid under pressure may have done right or wrong. It’s CNN who is involved in vigilante justice. It’s The New Yorker that’s guilty of vigilante justice.”

Dershowitz pointed to the lawsuits filed by Kentucky high school student Nicholas Sandmann, who sued CNN and other outlets over accusations of racism made against him following an encounter with a Native American activist in Washington, D.C.

“The idea is to make the media accountable for deliberate and willful lies,” said Dershowitz.

Sandmann, who did successfully sue several national media outlets for defamation, offered his assistance yesterday in a Daily Mail op-ed. “The way the media has treated you is terrible,” he wrote while extending his hand in friendship and support, “and you don’t have to face it alone.” Sandmann echoed Dershowitz’ point and discussed the parallels to his experience, except that those pose one significant problem:

Kyle was almost immediately labelled a ‘white supremacist’ and a ‘domestic terrorist’.

To many, my red MAGA hat clearly meant that I was a racist.

In only hours a CNN host tweeted an image of me, writing: ‘Honest question. Have you ever seen a more punchable face than this kid’s?’.

Kyle wasn’t given his day in court by his critics.

And neither was I.

Sandmann has a good point … in his case. However, Sandmann didn’t kill two people and maim a third either, which is what Rittenhouse did no matter how justified Rittenhouse was in defending himself. Sandmann hadn’t done anything at all to seek attention except stand in one spot while being harassed by an activist, so there was no way for him to have his “day in court.” That’s why Sandmann had such a good case for defamation — he hadn’t done anything to make himself a “public person,” and the ridicule and lies about him were entirely baseless, a point which media outlets either knew or should have known with any reasonable effort to ascertain the truth. Sandmann has already scored victories on that basis, and still has six more lawsuits outstanding.

In this case, Rittenhouse is literally having his day in court over actions that he took, arguably (and convincingly, in my opinion) in self-defense. As a defendant in a criminal trial, he’s much more of a public person in the context of defamation and Sullivan than Sandmann was, whether Rittenhouse desired that or not. One major reason Sandmann had such a good case for defamation that outlets rushed to settle the case is the unreasonableness of focusing media attention on some rando kid on the sidelines of a protest, along with the distortions and outright lies that accompanied that focus. There’s nothing unreasonable about media focus on a defendant in a murder trial.

Anyone with an attorney and $500 can file a lawsuit. If Rittenhouse does get an acquittal and follows this advice, I know who I’d be rooting for, and it won’t be the media outlets. However, as a public person, Rittenhouse would likely have a very difficult time proving (a) actual malice under these circumstances, and (b) separating news coverage from opinion enough to win a defamation suit. Perhaps there might be specific targets, but suing CNN or NBC broadly as Sandmann did is not going to result in an easy or lucrative settlement under these circumstances.

Anyway, this is still putting the cart before the horse. Many of us expect an acquittal, but juries do unexpected things. A conviction on any of these charges would likely negate any attempt at defamation actions against media outlets, if the fact of the prosecution hasn’t already done so. Even a victory on appeal wouldn’t negate that a jury thought the accusations against Rittenhouse were reasonable. The longer this jury remains out, the more likely either a negotiated verdict or a hung jury occurs, neither of which helps Rittenhouse in a claim to have been injured by the media through defamation.

Of course, Sandmann and Dershowitz are correct morally, even if not legally or strategically, but Rittenhouse won’t find moral accountability in a futile lawsuit. As long as Sullivan limits defamation actions, Rittenhouse will find it difficult to impose legal accountability on a largely unaccountable media. Kudos to Sandmann for his offer to help, though, and for his continued determination to seek the kind of accountability that media outlets can’t ignore through phony “reckonings.”

Addendum: If acquitted, Rittenhouse might have one particular target for such a suit:

AJ Kaufman notes:

At some point, might Comcast decide anti-white racism is not something to subsidize and pull the plug on Reid, as they did with the execrable Keith Olbermann a decade ago? Much of her odiousness, sadly, reminds me of anti-Semitic conspiracy theories. Constantly blaming all the world’s ills on one group of people — effectively vilifying them — should not be tolerated by MSNBC.

On Monday, before Reid’s Tuesday racism, Miranda Devine had a dynamite New York Post piece in which she reminded everyone, “This is a woman on a seven-figure salary who went to Harvard and has more elite privilege in her little finger than the 17-year-old son of a single mother who was in Kenosha working as a lifeguard when all hell broke loose in the form of BLM-Antifa riots in August 2020. Yet Reid continually plays the victim and makes her living punching down at white people less fortunate than she is.”

Now that’s a jury on which I’d love to sit.