Court: Trump's 'Get 'Em Out' Order Directed At Campaign Rally Protesters Is Protected Speech

from the hope-he-remembers-how-much-1st-A-covers-the-next-time-he-issues-legal-threats dept

The Sixth Circuit Appeals Court has taken a look at some of President Trump's campaign trail trash talk and decided urging fans to remove protesters wasn't incitement, even if the phrasing was a bit graceless. (h/t Elizabeth Joh)

The plaintiffs -- Kashiya Nwanguma, Molly Shah, and Henry Brosseau -- attended a Trump campaign rally for the express purpose of protesting it. There's nothing wrong with that. It's the sort of thing that happens all the time, even if Trump tends to draw more detractors than most. During his speech, Trump had his critics ejected, telling attendees to "get 'em out of here."

The plaintiffs, having been unceremoniously ejected (with some extra jostling from Trump supporters), sued, claiming Trump's "get 'em out of here" directly caused them harm and violated the state of Kentucky's riot incitement law.

The Appeals Court disagrees [PDF] with this assessment, using the plaintiffs' own statements to undo their assertions. But it's not happy with the lower court's decision to apply a less strict standard to Trump's wording to give the plaintiffs a better shot at hitting the mark with their state claims ("incitement to riot"). Applying the plausibility standard -- that Trump's "get 'em out of here" could have conceivably incited a riot -- makes no sense if the lower court wasn't willing to apply that same standard to words Trump said directly after that.

Focusing on the former statement, the district court held that it “implicitly” encouraged the use of violence. Id. at 727. Yet, even if “get ’em out of here,” standing alone, might be reasonably construed as implicitly encouraging unwanted physical touching, the charge here is “inciting to riot.” The notion that Trump’s direction to remove a handful of disruptive protesters from among hundreds or thousands in attendance could be deemed to implicitly incite a riot is simply not plausible—especially where any implication of incitement to riotous violence is explicitly negated by the accompanying words, “don’t hurt ’em.” If words have meaning, the admonition “don’t hurt ’em” cannot be reasonably construed as an urging to “hurt ’em.”

Even if the appeals court had decided Trump's words (but only some of them) didn't mean what they appeared to mean ("don't hurt 'em" = "hurt 'em"?), the president would still be able to walk away from this lawsuit intact. What Trump said during his campaign was not a threat nor any other speech standing outside the protections of the First Amendment.

Under the Brandenburg test, only speech that explicitly or implicitly encourages the imminent use of violence or lawless action is outside the protection of the First Amendment. This looks like a close analogue for the kind of speech required to make out the charge of inciting to riot under Kentucky law. It follows that if we were to hold that plaintiffs’ allegations do state a plausible incitement-to-riot claim under Kentucky law, the claim might be expected to fall outside the protection of the First Amendment under the Brandenburg test. What comes with the constitutional standard, however, is an illustrative body of case law. And what this case law makes clear is that, even if plaintiffs’ allegations could be deemed to make out a plausible claim for incitement to riot under Kentucky law, the First Amendment would not permit prosecution of the claim.

As the court notes, what Trump said may have been taken by attendees as an invitation to inflict violence. Trump may even have hoped some would act on these urges even with the tossed-off addition of "don't hurt 'em." But what he said was Constitutionally protected, no matter how unsavory or subjectively threatening the expelled protesters might have felt his statements were. For the court to step in and declare these words illegal would be a step too far.

[A]s a nation, we have chosen to protect unrefined, disagreeable, and even hurtful speech to ensure that we do not stifle public debate. The First Amendment demands governmental tolerance of speech, in the name of freedom…

The court isn't there to second-guess the speaker's intent. It's there to weigh the Constitutionality of the statements. "Get 'em out of here" isn't capable of directly inciting violence. The government has steered clear of punishing far worse speech in far more volatile situations. The court says it's not willing to cross that line, especially not when the perceived incitement was immediately negated by the next words out of Trump's mouth.

Filed Under: donald trump, first amendment, free speech, henry brosseau, incitement, kashiya nwanguma, molly shah, protestors, rallies