Category: reason

Self-defense is an affirmative defense, so the defendant has the burden of producing evidence: He must put on some evidence from which a jury can find self-defense. But then the burden of proof returns to the prosecution, which must disprove self-defense beyond a reasonable doubt.

It was not always thus. The English common law rule at the time of the Framing was that the defendant must prove self-defense by a preponderance of the evidence, and the Supreme Court has held (Martin v. Ohio (1987)) that placing this burden on the accused would be constitutional. But even by then, “all but two of the States, Ohio and South Carolina, ha[d] abandoned the common-law rule,” and they have since changed their rule by statute. (The only exception I know of is the view of some Louisiana appellate courts in non-homicide cases (see State v. Satterfield (La. Ct. App. 2021)), which still require the defendant to disprove self-defense by a preponderance of the evidence; Louisiana follows the unanimous beyond-a-reasonable-doubt rule as to self-defense in homicide cases.)

Of course this doesn’t dispose of what the rule ought to be. One way of thinking about that policy question is that the nearly unanimous rule takes the view, “Better that 10 guilty killers go free than one person who killed in proper self-defense go to prison for a long time (or be executed).” The Ohio rule, which is also the historical Framing-era rule is, “It’s slightly worse for one guilty killer to go free than for one person who killed in proper self-defense to go to prison for a long time (or be executed).” And of course one can consider variations of these rules as one shifts the burden of proof, or sets a quantum of proof at some other place, such as clear and convincing evidence. But the current law is pretty clear,

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A lot of derogatory, even unfairly derogatory, criticism is treated as pure opinion, and thus not legally actionable. For instance, claiming that someone’s appearance in some video (especially one that you link to) reflects a “smirk” (rather than a pained smile) and stems from racism, is likely to be seen as an opinion: A reasonable reader would understand it as the poster’s subjective judgment about the video subject’s motivations, and thus as speculation rather than an assertion about provable fact. To quote a nice summary from a recent federal district court case,

Statements indicating that Plaintiff is racist are clearly expressions of opinion that cannot be proven as verifiably true or false. While there appears to be no North Carolina court expressly addressing this issue, many courts in other jurisdictions that have faced the issue of defamation claims based on accusations of bigotry or racism have held the statements to be nonactionable statements of opinion. See, e.g., Stevens v. Tillman (7th Cir. 1988) (holding that neither general statements charging a person with being racist, unfair, unjust, nor references to general discriminatory treatment, without more, constitute provably false assertions of fact); Standing Comm. on Discipline v. Yagman (9th Cir. 1995) (holding that calling a judge “anti-Semitic” was a non-actionable opinion); Ward v. Zelikovsky (N.J. 1994) (accusation that plaintiffs “hated Jews” nonactionable); Covino v. Hagemann (N.Y. Sup. Ct. 1995) (dismissing defamation claim based on statement that plaintiff was “racially insensitive,” observing “an expression of opinion is not actionable as a defamation, no matter how offensive, vituperative, or unreasonable it may be” and “[a]ccusations of racism and prejudice” have routinely been found to constitute non-actionable expressions of opinion); Williams v. Kanemaru (Haw. Ct. App. 2013) (accusation of racism based on disclosed facts not actionable for defamation); Lennon v. Cuyahoga County Juvenile Court (Ohio Ct. App. 2006) (“appellant’s being called a racist was a matter of one employee’s opinion and thus is constitutionally protected speech, not subject to a defamation claim”).

Likewise, it’s not actionable to accuse another of expressing sympathy for Communism, defending Communism, or even being Communist in his ideology. See, e.g., McAndrew v. Scranton Republican Pub. Co. (Pa. 1950); Clark v. Allen (Pa. 1964):

It is a matter of widespread common knowledge that countless patriotic Americans sincerely and sharply disagree as to what actions and/or words and/or policies aid the Communist cause, or what show Communist tendencies, or what amounts to an “appeasement” of Communism, or what is a “pro-Communist,” or exactly what is meant by the term “soft on Communism.”

While these words and expressions have a different meaning or meanings for very many Americans and often are undoubtedly intended to be derogatory, they are not libelous…. To hold these words or any of said expressions libelous would realistically and practically put an effective stop to searching and illuminating discussion and debate with likely dire results.

And to quote the general rationale for this position, from Judge Frank Easterbrook writing in Stevens v. Tillman (7th Cir. 1983):

The word [“racism”] has been watered down by overuse, becoming common coin in political discourse. Tillman called Stevens a racist; Stevens issued a press release calling Tillman a “racist” and her supporters “bigots.” Formerly a “racist” was a believer in the superiority of one’s own race, often a supporter of slavery or segregation, or a fomenter of hatred among the races…. Politicians sometimes use the term much more loosely, as referring to anyone (not of the speaker’s race) who opposes the speaker’s political goals—on the “rationale” that the speaker espouses only what is good for the jurisdiction (or the audience), and since one’s opponents have no cause to oppose what is beneficial, their opposition must be based on race….

The term has acquired intermediate meanings too. The speaker may use “she is a racist” to mean “she is condescending to me, which must be because of my race because there is no other reason to condescend”—a reaction that attaches racial connotations to what may be an inflated opinion of one’s self — or to mean “she thinks all black mothers are on welfare, which is stereotypical.” Meanings of this sort fit comfortably within the immunity for name-calling.

Language is subject to levelling forces. When a word acquires a strong meaning it becomes useful in rhetoric. A single word conveys a powerful image. When plantation owners held blacks in chattel slavery, when 100 years later governors declared “segregation now, segregation forever,” everyone knew what a “racist” was. The strength of the image invites use.

To obtain emotional impact, orators employed the term without the strong justification, shading its meaning just a little. So long as any part of the old meaning lingers, there is a tendency to invoke the word for its impact rather than to convey a precise meaning. We may regret that the language is losing the meaning of a word, especially when there is no ready substitute. But we serve in a court of law rather than of language and cannot insist that speakers cling to older meanings.

In daily life “racist” is hurled about so indiscriminately that it is no more than a verbal slap in the face; the target can slap back (as Stevens did). It is not actionable unless it implies the existence of undisclosed, defamatory facts, and Stevens has not relied on any such implication.

Now falsely accusing someone of a specific act—e.g., of firing or prosecuting someone because of the target’s race—may well be libelous. Thus, for instance, in MacElree v. Phila. Newspapers, Inc. (Pa. 1996), the court held that characterizing the plaintiff as having acted improperly by “abusing his power as the district attorney, an elected office, to further racism and his own political aspirations” could be actionable. But the court specifically stressed that the statement did more than “merely label[ the plaintiff] a racist”—the statement was actionable because it focused on what the plaintiff supposedly did rather than just on what he believed, and thus “amount[ed] to a charge of misconduct in office.”

So saying “Kyle Rittenhouse is a white supremacist” or “Saule Omarova is a Communist” (or “Socialist”) isn’t libelous, because that is understood as an opinion. But falsely asserting that “Kyle Rittenhouse had joined the KKK” or “Saule Omarova is a member of the Communist Party USA” may be libelous (at least unless the context shows that this is hyperbole or a joke or some such).Free Spe

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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 Chanel 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.

The post Is It Defamatory to Call Kyle Rittenhouse — or Anyone Acquitted of Murder — a "Murderer"? appeared first on Reason.com.

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[1.] Yes. A criminal acquittal doesn’t preclude a civil lawsuit out of the same claims. First, the acquittal resolves only that guilt couldn’t be proved beyond a reasonable doubt (requiring, say, a >90% confidence level); the standard for civil liability is preponderance of the evidence (which requires just >50%, or perhaps ≥50%, if the injury is easily proved and the burden is then shifted to the defendant to prove self-defense).

Second, liability could be based on a negligence theory; the charges against Rittenhouse were based on the theory that he acted recklessly or intentionally, depending on the charge. Of course, the negligence inquiry made its way into the analysis, because the self-defense claim turned on whether he reasonably feared death or serious bodily injury; that would play a role in any civil claim as well. But at least in principle, there might be more room for claims of unreasonable behavior in a civil negligence lawsuit than in a criminal homicide, attempted homicide, or reckless endangerment case. (One way this could happen is that the standard for criminal negligence in criminal cases is generally higher than for civil negligence, though in this case the jury instructions didn’t seem to reflect that.)

This is why, for instance, O.J. Simpson could lose a civil wrongful death lawsuit even though he had been acquitted at a criminal trial. On the other hand, if someone is convicted at a trial, with proof beyond a reasonable doubt, that would generally make him automatically liable in a civil lawsuit based on the same facts and on a similar legal theory: If guilt has been proved at a >90% confidence level, that necessarily means it has been proved at a >50% level as well, but not vice versa.

[2.] What about the money? How much is an 18-year-old likely to have? Well, he did have success in raising funds for his criminal defense, and he might be able to raise funds earmarked for a civil defense as well, but I doubt that anyone would donate money to him just so plaintiffs could take it in a damages lawsuit. (I can’t speak to whether there are any unrestricted contributions left over from the criminal case fundraising.)

On the other hand, if Rittenhouse’s parents own a home and have homeowners’ insurance, that may well cover a wide range of negligence claims against their minor children as well (many homeowners’ insurance policies do that), and not just claims stemming from injuries within the home. It’s possible that a claim that “Rittenhouse was negligent in shooting me, because his fear that I would kill or seriously injure him was unreasonable” would be covered by such a policy, though it of course depends on the exact terms of the policy. Such a policy would cover both the defense costs and a potential verdict, at least up to the policy’s monetary limits; and it could provide money for settling the case (which is of course how many cases are resolved).

This having been said, my sense of the Rittenhouses’ economic circumstances (based on a quick glance at media accounts) is that they’re likely to be renters, and unlikely to have other sources of liability insurance. The main source of such liability coverage is generally homeowners’ insurance, or, for a small and wealthy percentage of the population, umbrella policies or similar liability coverage.

[3.] Naturally, a jury may well conclude that Rittenhouse wasn’t negligent, even under a preponderance of the evidence standard, in which case he’d win the civil lawsuit. (Self-defense is a valid defense in civil cases, though again the standard is preponderance of the evidence.) And, especially if there’s no insurance policy available, potential plaintiffs may conclude that it’s pointless to even try suing. But in principle, civil liability following a criminal acquittal is possible.

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The Dickinson Press (Adam Kurtz) reported in September, and The College Fix (Christian Schneider) just publicized it yesterday:

University of North Dakota President Andrew Armacost has fired one of the two administrators former UND Police Chief Eric Plummer claimed discriminated against him on the basis of his political beliefs….

Plummer left his job in February shortly after filing complaints against Halgren and Gerhardt for discrimination and creating a hostile working environment over a period of four years, dating back to a conversation he had with Halgren in 2016.

That conversation, Plummer said, took place at the Northside Cafe. There, Halgren asked him who he voted for in the 2016 presidential election. According to the complaint, Plummer said the question made him feel uncomfortable, but he answered that he voted for former President Donald Trump.

After that, Plumber said Halgren and Gerhardt’s behavior toward him changed. In the complaint, Plummer said Halgren canceled regularly scheduled breakfast meetings with him, which he said damaged his relationship with UND student affairs. Their professional relationship continued to get worse, and Plummer said he was left out of an online meeting moderated by Gerhardt, and had to work in an increasingly confrontational environment.

In August, an administrative law judge dealing with the complaints found that Halgren discriminated against Plummer on the basis of his political beliefs. The same judge, Hope Hogan, found that Gerhardt did not harass Plummer or create a hostile working environment against him.

You can see a copy of Administrative Law Judge Hope Hogan’s findings.

The First Amendment generally bars the firing of government employees for their political affiliation, which would include voting. There is an exception for certain positions for which political affiliation is seen as a legitimate criterion—think chiefs of staff for elected officials, or cabinet officers or their top deputies—but I doubt that it would apply to a police chief at a university.

North Dakota actually makes it a crime (“interference with elections”) to “by economic coercion” “[i]njure[], intimidate[], or interfere[] with another because the other individual is or has been voting for any candidate or issue.” That would apply, I think, to firing someone based on how he voted; query whether it applies to discrimination in assignment of job duties and opportunities within the organization. (Nearly all states have some statutes protecting employees against a considerable range of private and public employer retaliation based on voting.)

North Dakota state law also bars all employers, government or otherwise, from firing employees based on off-duty off-working-hours “lawful activity,” which would include voting (and other political activity):

[No employer may discriminate against an employee or applicant] because of … participation in a lawful activity that is off the employer’s premises and that takes place during nonworking hours

[a] [unless that participation is] in direct conflict with the essential business-related  interests of the employer … [or]

[b] contrary to a bona fide occupational qualification that reasonably and rationally relates to employment activities and the responsibilities of a particular employee or group of employees, rather than to all employees of that employer.

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