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Not-guilty Verdict in the Kyle Rittenhouse Shooting Case Was No Shock, but Sadly, It is Likely to Have a Chilling Effect on Free-speech Rights of Those on the Left

Posted on the 20 November 2021 by Rogershuler @RogerShuler
Not-guilty verdict in the Kyle Rittenhouse shooting case was no shock, but sadly, it is likely to have a chilling effect on free-speech rights of those on the left 

We reported seven days ago about a Western Michigan University law professor who stated that Kyle Rittenhouse trial judge Bruce Schroeder was pulling out all the stops to force an acquittal in the case. Prof. Jeffrey Swartz is a former judge, prosecutor, and defense attorney, so we put a lot of stock in his opinions on the case -- and thus, it was no surprise in this corner of the Web when a jury came back yesterday with not guilty findings across the board.

That's an alarming outcome for the many Americans (including me) who see the case as a relatively straightforward instance of cold-blooded murder, which came after the police shooting of Jacob Blake, an unarmed black man in Keosha, WI. But taken in a broad sense, the Rittenhouse incident might have even darker implications than many of us can even imagine, according to an op-ed at Salon. Columnist Amanda Marcotte sees it as part of a right-wing assault on the free-speech rights of those who do not agree with them. Writes Marcotte:

Indeed, one of the main selling points of the Republican march towards fascism, for its base, is this fantasy of a society where people live in abject terror of their right-wing neighbors, afraid to express progressive opinions or even to admit historical facts about the United States. That much is evident in the GOP base rallying around Kyle Rittenhouse, who has been on trial for shooting three people at a Black Lives Matter protest last year, killing two of them. 

The case itself is mired in of-the-moment debates about who started what violence with who at the protest. But that's not really the reason that Rittenhouse has become a right-wing folk hero. He's become a cipher for widespread anger on the right about the very existence of Black Lives Matter protests, and a desire to use violence to silence anti-racist speech. [The Rittenhouse acquittal], it sends a signal to all the gun nut right-wingers out there: It's cool to show up at Black Lives Matter protests loaded down with guns, which is, of course, about scaring people out of showing up to protest racism in the first place. 

As a jury finding in a Wisconsin trial court, the Rittenhouse verdict should have no precedential impact in other jurisdictions, as a matter of law. But as a practical matter, it certainly could have a chilling effect on the free speech of those who happen to hold left-of-center views. Imagine this scenario: a police shooting, or some other incident that you view as an injustice, happens in your town, and you decide to make your voice heard by attending a protest. As you arrive, you spot several dozen militia types (not actual law enforcement officers), armed with long rifles and plenty of ammunition. Your mind shifts to the Rittenhouse case, where he shot three men and killed two (much of it captured on video) but was not held accountable under the law. Would you turn around and go home? Fearing the possible presence of the militia crowd -- in an era of open-carry laws -- would you decide not to attend at all? 

Marcotte sees this as  a form of right-wing terrorism -- and it probably is working already:

"People cannot freely exercise their speech rights when they fear for their lives," Diana Palmer and Timothy Zick write at the Atlantic. "The increased risk of violence from open carry is enough to have a meaningful 'chilling effect' on citizens' willingness to participate in political protests."

That silencing is the underlying intent is evident, as I noted in yesterday's column, by the fact that a number of Republican legislatures have introduced and even passed laws that make it easy to get away with murdering left-leaning protesters, so long as you run them over with your car. There's a lot of hand-waving about "self-defense" used to justify such awfulness, but the purpose is not exactly hard to see. This is about deputizing ordinary conservatives to suppress free speech — with violence — when the Constitution prevents the government from doing so directly. 

This trend, of course, can go way beyond Kyle Rittenhouse and anything having to do with policing:

The connective tissue between the valorization of vigilante violence against progressive speech and the Texas "bounty hunter" abortion law is not hard to see. As Jill Filipovic argued in her newsletter, the law is "the codification of anti-abortion terrorist tactics" and rooted in the "same urge to publicly shame and humiliate women" and "the impulse toward vigilantism and violence" that drives anti-choice protesters to stake out abortion clinics to heckle the people going inside — or worse, as the long history of anti-choice violence demonstrates. 

That longing from right-wingers to police and abuse their neighbors isn't the only thing that abortion bans have in common with book banning to combat "critical race theory" and Rittenhouse-style intimidation tactics. The right has long used the touchy subject of abortion as a place to field test their ugliest ideas. That extends very much to the right-wing war on free speech.

Under Donald Trump, the Department of Health and Human Services banned doctors at clinics that receive federal funds from even mentioning abortion to patients. As with the "critical race theory" laws that intimidate teachers from even talking about slavery or Jim Crow, the abortion "gag rule" was about creating a Stasi-like environment at public health clinics, where doctors feared even mentioning abortion to patients — even when patients asked for it — out of fear that they might be ratted out to the government. President Joe Biden's administration thankfully repealed the gag rule, allowing doctors to once again direct patients who want abortion to safe options — but the template for the right's war on free speech has been fixed.

As for Rittenhouse, a common question is this: Why in the world was he, a non-resident, in Kenosha, and why did he bring an AR-15 rifle with him? Let's consider some of Rittenhouse's statements about his presence in Wisconsin -- and his actions while there:

(1) Rittenhouse said he was there to protect property -- 

A general principle of law is that you can't use deadly force to protect property. Here is how UCLA law prof. Eugene Volokh puts it:

In nearly all states, you can't generally use deadly force merely to defend your property. (Texas appears to be an exception, allowing use of deadly force when there's no other way to protect or recapture property even in situations involving simple theft or criminal mischief, though only at night,  Tex. Penal Code § 9.42; see, e.g., McFadden v. State (Tex. Ct. App. 2018).) That's where we get the conventional formulation that you can't use deadly force just to defend property.

This conventional formulation, though, omits an important limitation: In basically all states, you can use non-deadly force to defend your property—and if the thief or vandal responds by threatening you with death or great bodily harm, you can then protect yourself with deadly force. So in practice, you can use deadly force to protect property after all, if you're willing to use non-deadly force first and expose yourself to increased risk.

Volokh makes clear that various qualifiers apply in a number of states. But the general principle still holds: You can't use deadly force merely to defend property. So why did Rittenhouse have an AR-15 in Kenosha? As a 17-year-old at the time, Rittenhouse probably was not aware of the law. But he almost certainly was not there to protect property.

(2) Rittenhouse said he wanted to provide medical aid -- 

This borders on laughable. There is no discernible evidence that Rittenhouse has medical training or skills -- or that he rendered aid to anyone in Kenosha.

(3) Rittenhouse said he shot his first victim, Joseph Rosenbaum (yes, we refer to the dead and injured as "victims" here) because he feared Rosenbaum would take his gun and shoot him with it. 

Videos and photos show the gun firmly strapped to Rittenhouse's chest, so how was Rosenbaum supposed to get it away from him? Answer, it almost certainly could not have happened.

(4) Rittenhouse admitted he knew Rosenbaum was unarmed, so how was it self-defense to use deadly force against him?

Under the law, it probably couldn't be self-defense, but jurors apparently made a finding that does not square with the law.

We can reach no other conclusion but this: Rittenhouse traveled to Kenosha with an AR-15 because he knew his presence, with such a weapon, would be intimidating. He wanted to silence, or limit, the voices of protesters -- and he wound up silencing two of them permanently.

Let's give the final word to Amanda Marcotte:

Republicans use the hot button issues of race and sexuality to create oppressive environments, where people like teachers or doctors refrain from speaking even basic truths. This makes ordinary people afraid to go to an anti-racism protest for fear of getting shot or run over by right-wingers, whose murderous impulses are being validated by the courts or state governments. The goal is a society where everyone is looking over their shoulder all the time, scared that a malicious right-winger will make their lives hell for thought crimes like "racism is real" or "women have a right to choose." It's the stuff of what is usually considered dystopian fiction. But for the Republicans, it is apparently what they hunger for America to look like.

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