In recent weeks, I have dedicated many pixels to the question of how courts should consider then-candidate Trump’s statements on the campaign trail with respect to the constitutionality of his travel bans. Yesterday, a federal district court in Kentucky parsed one of Trump’s statements in a very different constitutional context–the First Amendment defense to a charge of inciting violence.
The court recounts the facts:
On March 1, 2016, Trump held a campaign rally at the Kentucky International Convention Center in Louisville, Kentucky. (D.N. 1-1, PageID # 10; see id., PageID # 8) Nwanguma, Shah, and Brousseau each attended the rally for the purpose of “peacefully protesting Trump.” (Id., PageID # 11-13) As they were protesting, Trump said, “Get ’em out of here.” (Id., PageID # 10) Heimbach, Bamberger, and other audience members then physically attacked Plaintiffs. Nwanguma, who is African-American, was shoved first by Heimbach and then by Bamberger, who also struck her. (Id., PageID # 12) Shah was likewise shoved by Heimbach and other audience members. (Id., PageID # 13) Brousseau, a seventeen-year-old high school student, was punched in the stomach by an unknown defendant believed to be a member of the Traditionalist Worker Party, a white nationalist group Heimbach was representing at the rally. (Id., PageID # 7-9, 12-14) Plaintiffs allege that as they were being attacked, Trump said, “Don’t hurt ’em. If I say ‘go get ’em,’ I get in trouble with the press . . . .”
The plaintiffs sought to hold Trump vicariously liable for these torts, and accused him of incitement to riot. Trump defended that his statements did not render him vicariously liable and the First Amendment is a bar to the incitement claim. The court rejected both defenses.
Trump argued that his statement, “get ’em out of here,” does not plausibly give rise to an incitement claim, because “there is an ‘obvious alternative explanation’ for the meaning of Trump’s words, namely that he intended for professional security personnel to remove the protestors.” Due to the nature of these proceedings–a motion to dismiss–under Circuit Twiqbal precedent, the court finds that “the plausibility of the Trump Defendants’ explanation for Trump’s statement ‘does not render all other [explanations] implausible.'” Further, the Court finds that the Trump has “not identified an ‘obvious alternative explanation’ for Trump’s statement warranting dismissal of the incitement claim.”
The court further rejects Trump’s claim that his speech was protected by the First Amendment, relying on the canonical framework advanced in Brandenburg v. Ohio.
Under the test set forth in Brandenburg v. Ohio, 395 U.S. 444 (1969), speech may not be “sanctioned as incitement to riot unless (1) the speech explicitly or implicitly encouraged the use of violence or lawless action, (2) the speaker intends that his speech will result in the use of violence or lawless action, and (3) the imminent use of violence or lawless action is the likely result of his speech.” Bible Believers, 805 F.3d at 246 (footnote omitted) (citing Brandenburg, 395 U.S. at 447). In other words, “speech that fails to specifically advocate for listeners to take ‘any action’ cannot constitute incitement.”
First, the court finds that “get ’em out of here” is stated in the “imperative” and was “an order.” Second, the court accepts the plaintiff’s claim–which must be accepted as true at this stage–“that Trump intended for his statement to result in violence.” The court stresses that “Whether he actually intended for violence to occur is beyond the scope of the Court’s inquiry at the motion-to-dismiss stage. ” Notably, the court does not attempt to psychoanalyze Trump, but focuses on the words themselves, and how others (such as the defendants) construed them.
This holding does not mean that the incitement claims would survive summary judgment, but–and here is the big but–plaintiffs now are entitled to discovery. Much of the litigation against Trump is designed primarily to frustrate and resist his administration, and hopefully to depose the Commander in Chief. To make any firm conclusions on intent, Trump would have to speak of his own intent first. As a result, expect this case to settle out.