Kyle Rittenhouse is cheering the Depp-Heard verdict on Twitter, saying it’s motivating him to move forward with the various defamation lawsuits he’s been threatening — and fundraising off of — for months.
On Friday, he confirmed he’s hired Todd McMurtry, the lawyer already representing Nicholas Sandmann in several defamation cases against major media outlets related to coverage of the Kentucky teen’s 2019 encounter with a Native American protester in Washington.
“Johnny Depp trial is just fueling me, you can fight back against the lies in the media, and you should!” Rittenhouse tweeted this week.
Other than using keywords from the the wildly popular and divisive Depp-Heard trial to drive people from social media to the online donation buttons for his Media Accountability Project, does Rittenhouse have a valid basis to invoke Depp-Heard in his own legal battle? Experts say it’s a serious stretch.
“Show me where a news organization either deliberately or with just total indifference to truth was publishing materially false facts about Rittenhouse. I haven’t seen it,” lawyer Dan Novack, co-chair of the New York State Bar Association’s Committee on Media Law, tells Rolling Stone. “I understand that he feels aggrieved. But he’s what people typically would call an involuntary public figure. He was not famous before, but by the time that trial took place, he was very famous. And the standard for a public figure like him is high. He has a big megaphone right now. He has the ability to get on TV. He has a large following.”
Rittenhouse, 19, was acquitted last November after saying in televised testimony that he was not looking for trouble when he brought an AR-15-style rifle to a racial justice protest in Kenosha, Wisconsin, on Aug. 25, 2020, and ended up shooting three people, killing two of them.
After the trial, he told Fox News’ Tucker Carlson that he planned to go after The View’s Whoopi Goldberg for calling him a “murderer” following his acquittal. He also singled out Cenk Uygur from The Young Turks and unidentified “athletes,” a possible reference to LeBron James, the NBA superstar who accused him of fake crying on the witness stand.
Experts in the field of defamation and First Amendment law tell Rolling Stone that making claims against media organizations or people offering opinionated commentary on news events is much different than suing someone for defamation in a so-called he said/she said case, like with Depp-Heard.
“For someone like Kyle Rittenhouse — where at this point, at least, the video is known, the narrative is known — how could someone possibly be confused as to what happened? People will watch that same video and apply whatever motivated reasoning they have to it,” Novack says. “Me saying that, ‘He’s a murderer’ — I’m not saying it, but if I were to — we call that in the law ‘an opinion based on disclosed facts.’ I’m not harboring secret knowledge. I’m saying, ‘I watched the videos and I consider him a murderer.’”
Opinion is an “absolute bar to liability” if the opinion “is founded on facts that we can all agree upon,” the lawyer says. That’s why people can still call O.J. Simpson a “killer,” even though he was acquitted in criminal court.
“[Rittenhouse] wants to say he was exonerated, right? And that’s not technically true. He was found not guilty by virtue of reasonable doubt. And reasonable doubt is in the eye of the beholder,” Novack says. “The jury in his case could have felt it was 90 percent likely that he had the requisite mental state, intent to harm, but nonetheless they felt that the prosecution’s case wasn’t a slam dunk. We can all watch the video. Much of his trial was televised. We can watch his testimony and just decide if he’s credible.”
California lawyer Michael Overing, another expert in libel and defamation law, says the Depp-Heard verdict is different from what Rittenhouse is claiming because it hinged on what allegedly happened between Depp and his ex-wife Amber Heard “behind closed doors for the most part.”
“In the case of Rittenhouse, once you’ve got a public event and it becomes press-related, the First Amendment kicks in and is going to give a lot more power to the press to defend itself. It’s that ability to rely upon our First Amendment protections to report upon newsworthy events and to show the video and make commentary about the video because that’s what the news does,” Overing says. “The protection for what is news is exceptionally broad, so you have a lot more protection when you’re reporting upon a news event because there is community interest in the event as it is unfurling.”
Joe Cammarata, a Washington lawyer who represented several Bill Cosby accusers in their successful defamation case against the comedian, called the Depp-Heard case a “very, very unique situation.”
“For [Rittenhouse] to say, ‘Johnny won and therefore it emboldens me’ is a bit naïve. Each case has its own set of facts, players, and law,” he tells Rolling Stone.
With the Depp-Heard case, “we had two extremely public figures. They’re stars. It’s sex, drugs, and rock & roll. It replaced the afternoon soap operas. It had witnesses with panache, with a little edge to them. They had personalities,” he said. “We’re not going to have another one of these types of cases for a long time, presumably a lifetime.”
Novack says Depp, as a plaintiff, also is an outlier in many ways, so viewing his case as a playbook is treacherous. “Few people are as genuinely charming as he is. He at times had the jury really attuned to him. He is probably one of the 10 most successful actors of the last 50 years. So, I don’t think the Kyle Rittenhouses or other disgraced #MeToo men of the world have it in them to be as likable in that way. They don’t have 50 years of goodwill to trade upon.”
And even with Depp’s vast resources and ultimate success, the Pirates of the Caribbean star “couldn’t prevent all the calamitous evidence of his own awful behavior, so there’s an element of mutually assured destruction,” Novack says. “If these people are getting good advice from their lawyers, they’re not going to be bringing cases. It would just be a pure publicity stunt, and it’s cheaper just to pay publicists.”
Rittenhouse’s new lawyer, McMurtry, declined to comment Friday for this story. (His other client, Sandmann, is still suing Rolling Stone, The New York Times, ABC, Gannett and CBS.)
Speaking to Fox News on Thursday, McMurtry singled out Mark Zuckerberg as a potential target for Rittenhouse after Facebook disabled the teen’s Facebook and Instagram accounts and purportedly labeled him a mass shooter in the aftermath of Kenosha. “This was not a mass murder incident. It was clearly factually false,” McMurtry said.
“There’s no traction when it comes to suing over editorial control on a platform,” Overing says. “Unless Congress takes some action and modifies the law, platforms get to do what they want to do. It’s legal. You don’t have to be on that platform. You vote with your feet.”