Exploring All of Kyle Rittenhouse’s Legal Alternatives

CLAY: One of the big topics that has been out there has been what sort of legal recourse does Kyle Rittenhouse have now that he has been found not guilty of murder by virtue of self-defense, given all the insults and all of the lies that have been spread about him in the mainstream media and politicians, by MSNBC and CNN and the New York Times and the Washington Post.

We’ll get into that in a minute, but first here’s a cut from Kyle Rittenhouse talking about the legal representation he had and the fact that he says they left him in jail while they raised money, he says, for their own benefit. This is cut one.

RITTENHOUSE: Eighty-seven days of not being with my family for defending myself and being taken advantage to, being used for a cause by John Pierce and Lin Wood, trying to raise money so they could take it for their own benefit, not trying to set me free. I could have been bailed out by mid-September, but they wanted to keep me in jail until November 20th.

CLAY: Buck, that also is awful. I don’t think most people talk about the fact that this kid, who was 100 percent innocent of any wrongdoing, we know, based on the jury’s determination, spent 87 days in prison. That’s over, basically, three months of his life.

BUCK: The alleged justification for this, from his lawyers, was that he was safer in jail. And I can tell you that is not the case. There’s actually a lot of evidence to show that people — you’re much more likely to be assaulted, to be attacked across a whole —

CLAY: No doubt.

BUCK: — a whole range of contexts inside prison than outside of prison, or jail. And this goes to show you that there were people early on — and for Kyle to say at this stage, too, is absolutely damning for these two guys. And it’s a shame because I actually like the Richard Jewell movie in which Lin Wood is essentially the hero. But it’s still a very good movie. It’s really just an entire movie that, don’t trust the FBI and don’t talk to them; that’s actually what the movie teaches you. But Kyle was able to push through this and really when he was giving this interview with Tucker, Clay, it becomes clear that he had so much poise and mental fortitude for a kid his age. He’s facing life in prison.

CLAY: Yes.

BUCK: He wasn’t yet even 18 years old when this incident happened. Not only is he facing life in prison, but very powerful people all across — I mean, the now president, then candidate for the Democrat side for the presidency, basically said this guy should rot in jail for the rest of his life. It’s one thing if you’re wrongfully accused and you’re just going through the trial. That’s got to be terrifying. Imagine being wrongfully accused and an entire political party, the Democrat elites’ media apparatus, the left, the organized left in general, is screaming, screeching for you to spend the rest of your life in prison while that’s happening. Think about how terrifying that would be.

CLAY: Buck, I’ll tell you this. Lawyers don’t lose sleep over defending people they think are guilty. We lose sleep over defending people we think are innocent, because if you’re defending a guilty person you have a constitutional obligation to defend them to the best of your ability. But if they end up being convicted, it may be the just result in a case. Lawyers lose sleep. I guarantee you this was the case for the lawyers, credit them, the defense attorneys, who won the case for Kyle Rittenhouse. I guarantee you those guys tossed and turned, in addition to the fact that Rittenhouse himself did, many nights worried that they were not going to be able to do the best possible job because this kid was innocent of all wrongdoing and they knew he faced potential life in prison.

Let me say this, too, there’s a lot of discussion out there, Buck, about what sort of legal opportunities Kyle Rittenhouse has now that a jury has determined that he’s not guilty of the crime when he was labeled a murderer, a white supremacist, a domestic terrorist, all these different things on CNN, MSNBC, the New York Times, The Washington Post, among others.

I’ve argued for a long time that New York Times v. Sullivan needs to be — this is the sort of foremost case in the First Amendment jurisprudence — that it needs to be refined for our modern era.

This is getting a little bit in the weeds, but just for people out there to think about — what are the major challenges in holding these big media companies accountable for the lies they spread about you is New York Times v. Sullivan sets up a distinction between a public and a private figure. If you’re a public figure, you have to show — and that’s why when we played in hour one, Kyle Rittenhouse said that the media company showed actual malice against him. You have to show actual malice if you’re a public figure in order to recover under defamation standards.

I think we need to reconsider, and Scalia and Thomas have said this in Supreme Court opinions, we need to reconsider New York Times v. Sullivan, in light of the social media era in which we live in now where basically everybody is a public figure, Buck. Because if you’re in a diner and somebody takes a video of you and it goes viral, you become a public figure because you said or did something even if you don’t want to be a public figure.

So this distinction about what damages can be gained for public-versus-private figures is so challenging when it comes to Kyle Rittenhouse and people of his nature who may be 100 percent innocent, may have lies spread about them, but because of the public figure standard of New York Times v. Sullivan, it’s really hard for them to recover.

BUCK: Yet, Nick Sandmann, as we all know, is advocating for Kyle Rittenhouse to sue. And Sandmann, I believe, the settlements were kept private, but it’s believed he got a pretty substantial payout. But that’s to your point about how anyone can become a public figure and therefore the public-, private-figure distinction, that’s more sensible in the era of newspapers.

CLAY: In the 1960s it made sense.

BUCK: Where there’s very few people who find themselves an issue of public concern, who aren’t either an accused criminal or politician or you’re somebody who is already in the public eye.

The reality here with Nick Sandmann, was he was on a school trip as we all know and someone marched up to him and took a video of his face. He didn’t do anything. And all of a sudden they’re calling him a smug white supremacist and all this crazy stuff that they were saying, instead of pointing out that an adult and a very strange fellow was harassing him.

I don’t know what the payout was. There’s people that make all kinds of claims it was very large, it was actually very small. Who knows. But there at least should be, the accountability that we could all have is stop thinking that any of these are news organizations. Stop believing that when you read the New York Times or CNN they’re making a good-faith effort to give you unbiased, nonpoliticized information. That is not what they are doing. They have to give you accurate facts for the most part because otherwise nobody will believe them. But it’s about things like what do they cover? How do they cover? What do they not cover? That’s often the single biggest editorial decision.

That’s why I’m so outraged sitting here as we have no updates, it seems, from anywhere right now, from anyone about what happened with Waukesha and that mass murderer. How is that even possible that we don’t have more information? Who is asking the police? Who is making sure that we find out what the current status of the motive is? So what they cover, what they don’t cover is obviously a huge part of all of this. I think that it would be good to see a lawsuit here.

I know that’s what you’re talking about. But more to the point, everyone just understand, these are roaring propaganda machines out there. They don’t care that they lie to you. They don’t care that they lied to you about Donald Trump and Russia collision, about Jussie Smollett, about the Duke lacrosse case, and go down the list.

Just think about Hunter Biden’s laptop being not real or being disinformation or whatever. When they said the Hunter Biden laptop, I think it was The Washington Post published all these former Intel nerds, and I can say that because I’m one, who were saying, oh, it’s Russian disinformation.

None of them are embarrassed by this. None of them feel like, oh, gosh, I shouldn’t have done that because it served the purpose at the time. Go on offense against Trump and the right. And that’s what all these media organizations do. The moment they have to change even the facts to serve that purpose they will. So yes, sue them. You’re not going to sue them out of business; they’re insured; they have errors and omission insurance; you’re not going to be able to do that — sue them.

Although they did that to Gawker, if you remember. Gawker, Peter Thiel, God bless him, Gawker was a cesspool online, of the worst kind. There’s a precedence here.

CLAY: This goes to why he should sue. This is my argument. He needs to sue because we need to set the precedent for all those things that you just said, Buck. There needs to be a standard other than New York Times v. Sullivan that makes media companies worry that they might get hit with hundred million or billion dollar judgments that could shatter their ability to continue as viable business entities, because right now New York Times v. Sullivan, which was set in 1960s, at a time, Buck, when the only time the average person’s name appeared in the paper was when they might be born or when they might die, the idea of a public/private figure dichotomy might have made sense in the 1960s.

It doesn’t make sense in our modern era, and you shouldn’t be able to use Kyle Rittenhouse’s public persona as a reason to get so much wrong in your reporting about him. There need to be consequences. And that’s why we need an updated version of New York Times v. Sullivan in this country in a substantial way, because for people out there who believe that our media is broken — and I am with you, and I believe it is in fact broken — one of the best ways that we could change that is by altering the law, New York Times v. Sullivan, updating it for the modern era and eliminating the standards and practices that were put in place in the 1960s for a new modern era where there needs to be more consequences for these major for-profit newspaper institutions.