Fact checking the fact checkers: State v. Rittenhouse

I really hate—yes, “hate,” which can be a good thing—how social media platforms will censor a person’s political speech for allegedly being “false” when it is really just the expression of an opinion.  And now this practice has crossed the line separating the political and legal arenas.  As a practicing criminal defense lawyer, this hits close to home for me.  Hitting even closer to home, I’ve actually been cited in support of a fact checker’s decision to double down on his earlier fact check which declared someone’s speech as “false.”  This is somewhat ironic, given my love of free speech and my hatred of “speech codes,” censorship, and the asinine phrase “hate speech” which is bandied about by nasty children and freedom-hating bureaucrats on college campuses.

You can read all about it here.  In a nutshell, someone wrote on facebook that it was “perfectly legal” for Kyle Rittenhouse, a 17-year-old boy, to possess the gun he possessed when he shot three white men who separately (1) threatened to kill him and chased him, (2) pointed a gun at him, and (3) struck him with a skateboard, all during the Kenosha riots in 2020.  A fact checker then “fact checked” the claim about “perfectly legal” and determined it was false.  The facebook user was ultimately silenced or censored or deleted or whatever they do on “social media” when someone says something politically unpopular.

However, to the consternation of many, Judge Bruce Schroeder recently dismissed the charge alleging that Rittenhouse possessed the gun illegally.  Despite this, the fact checker doubled down, still concluding that the original claim of “perfectly legal” was false.  The fact checker may have clung to this view in part because I gave an interview to the AP’s Todd Richmond.  I was quoted by Todd Richmond as follows: “This is the price the government must pay when it is incapable of drafting clear laws.”  (The fact checker's position is that if the law is unclear, then the claim that it was "perfectly legal" for him to possess the gun is technically false, even though the charge was dismissed.)

I did indeed say this to Todd.  In fact, I discussed two principles of statutory construction with him.  The first is that when a statute is clear, it should be interpreted as written without any other inquires into legislative intent, as plain language is the best indicator of such intent.  Second, I alerted Todd to another principle of statutory construction: when a criminal statute is ambiguous, it should be interpreted in favor of the defendant.  This then lead to my quote, above, which is actually taken from a law review article I published in the Houston Law Review Online regarding the Kenosha prosecutors' spin-doctoring of a different Wisconsin statute.  Both cannons of statutory construction are also discussed in the article on pages 9-10.

Todd Richmond properly quoted me and properly used the information I gave him, as he was reporting about Judge Schroeder’s concern that this particular weapon-prohibition statute was unclear.  But after reading the statute, I don’t think it is unclear; or, to be clearer, I think it is clear.  The statute does prohibit minors from possessing weapons, including (initially) all types of guns.  However, subsection 3(c) of the statute reads that, if the gun is a rifle, the statutory prohibition is only triggered, if you will, when the defendant violates one or more of three other statutes.  Clicking on the links to those three other statues, it appears that none of them apply in the Rittenhouse case.  If that's accurate, then the prohibition would not kick-in at all.

Maybe I'm reading the statute wrong, and if so, I'll happily stand corrected.  But based on what appears to be plain language, it therefore does appear that the fact checker could be wrong.  And the problem might be in the fact checker’s reliance on other interviews or articles, rather than reading the entire statute itself.  But here's the larger point.  Even if I’m missing something and Judge Schroeder properly dismissed the charge for the statute’s ambiguity rather than its utter inapplicability, the facebook user’s original claim that it was “perfectly legal” for Rittenhouse to possess that gun is quite obviously argument or the expression of an opinion.  And, this argument or opinion even appears to be supported by the plain language of the statute.

To quote Chevy Chase, “Oh, Danny, this isn’t Russia.  Is this Russia?  This isn’t Russia, is it?  I didn’t think so.”  It is scary that, in America, someone who anoints him- or herself as a fact checker has the power to censor or suppress speech because, at worst, the speaker was expressing an opinion or making an argument, and in doing so used the term “perfectly legal” instead of “arguably legal.”

Scarier still is that the censored facebook poster could have actually been right.