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.”