Is It Defamatory to Call Kyle Rittenhouse — or Anyone Acquitted of Murder — a “Murderer”?

False allegations of facts may be defamatory, however opinions about others aren’t. Are you referring to “Kyle Rittenhouse a killer” or “O.J. Is it a factual statement or an opinion that Simpson is a killer?

It all depends on the interpretation of whether the statement can reasonably be understood as 1) implying the speaker knows undisclosed facts unpublicized that could implicate a target (potentially actionable) or 2) expressing his opinion regarding facts publicly discussed (not actionable). For instance, consider two more detailed statements:

  1. I had a long conversation yesterday with Rittenhouse, and he shared a lot of details about the events. He is a serial killer.” It could be a cause for liability.
  2. I’ve seen a lot about the case and found that the jury was wrong. This man is a killer.” This is known as nonactionable opinion. It means that it’s usually not considered libel.

It is not clear whether the simple statement that Rittenhouse is a killer implies either what is stated in (1) or (2). I believe that statements like “Rittenhouse was a killer” are merely opinions. Because listeners would not think they have any knowledge other than what is reported in the news, it’s unlikely the speaker holds special insight.

Check out this example. Clear Chanel Communications, Inc. v. Gisel (N.Y. App. Div. 2012):

Plaintiffs … [sued]This is based upon statements by Robert Lonsberry, defendant and host of the radio talk show Clear Channel Communications, Inc. These statements were made in an interview that was broadcast live. [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….” …

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[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….

The context of the statements supports the conclusion that Lonsberry is not stating facts. Lonsberry’s radio show featured a call in format that allowed for debate about newsworthy subjects. Lonsberry made his statements during an online debate with his listeners concerning plaintiff’s culpability, as well as whether the jury had acquitted plaintiff. Lonsberry engaged with his listeners on previous occasions in similar discussions regarding the culpability of plaintiff. Lonsberry also called his listeners using “harsh” language. Lonsberry was clearly trying to make Lonsberry’s statement seem confrontational and provocative, and not factual. Accordingly, the defendants have established that they are entitled to judgment on the grounds of law. The statements at issue were therefore “expressionistic.”[s]Of [pure]opinions [that were] not actionable” ….

Illinois law distinguishes between statements that adequately imply undisclosed facts (which could be actionable), and statements that do not. These statements are considered to be opinions based upon widely discussed facts and therefore cannot be enforced. Rittenhouse is a resident of Illinois and therefore Illinois law will likely be applied to a libel lawsuit.

Specific factual claims may be considered libelous if they lead to a negative reputation. This is not about his claims of being a murderer.