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.


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  • This comment has been flagged by the community. Click here to show it
    identicon
    Anonymous Coward, 18 Sep 2018 @ 4:53am

    Um.... calling for the removal of someone who is actually disrupting things is bad, and yet calling for people to completely accost and disrupt the normal live of people is good?

    The left has become a part of truly crazy people.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 18 Sep 2018 @ 6:39am

      Re:

      Please clarify your assertions. My reading of the article does not come to the same conclusion you have reached, so I'd like to know the thought process behind concluding that the article asserts:

      "calling for the removal of someone who is actually disrupting things is bad"

      and

      "calling for people to completely accost and disrupt the normal live of people is good"

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 18 Sep 2018 @ 7:25am

      Re:

      Wait - let me get this straight.

      Speaking to a crowd of followers asking them to physically remove people that disagree with the hive mind is not inciting a riot.

      but

      Being present for the purpose of reporting upon a national event ... is considered to be inciting a riot.

      Something here does not add up. Perhaps someone can explain this to the american people because they are probably wondering wtf.

      reply to this | link to this | view in chronology ]

      • icon
        Bamboo Harvester (profile), 18 Sep 2018 @ 7:59am

        Re: Re:

        "The plaintiffs -- Kashiya Nwanguma, Molly Shah, and Henry Brosseau -- attended a Trump campaign rally for the express purpose of protesting it."

        Tresspass, Disturbing the Peace, probably some other misdemeanors could be tossed at them.

        I don't see anything there about how they were there to "report on it".

        If anyone is guilty of a first amendment violation, it's the PROTESTERS.

        They attempted to disrupt the first amendment rights of the speaker(s).

        I don't know where or when "shouting down" at rallies or scheduled speeches became NOT violating the rights of those being shouted down.

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 18 Sep 2018 @ 8:10am

          Re: Re: Re:

          Two instances .. both accused of inciting a riot

          1) protesters at rally
          2) journalists at Presidential Inauguration

          Suppose I should be more verbose in the comment section

          reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 18 Sep 2018 @ 10:12am

          Re: Re: Re:

          If anyone is guilty of a first amendment violation, it's the PROTESTERS.

          Yes, for exercising THEIR 1st Amendment rights, I suppose?

          They attempted to disrupt the first amendment rights of the speaker(s).

          Yes, by exercising THEIR first Amendment rights, I suppose?

          Protip: if you have to ask for permission to exercise a right, it isn't really a right.

          reply to this | link to this | view in chronology ]

          • icon
            Bamboo Harvester (profile), 18 Sep 2018 @ 11:46am

            Re: Re: Re: Re:

            It's a matter of venue.

            If I pay for a hall, hire staff, hire a speaker, and invite people to HEAR that speaker, anyone shouting him down is NOT exercising their First Amendment rights to free speech.

            They're attempt to suppress the First Amendment rights of the speaker.

            I don't care if that speaker is trump, hillary, Mother Theresa, or Hitler. If you attempt to disrupt a scheduled speech, rally, parade, or any other type of public meeting, you're in the wrong.

            This suit is the ONLY time the three "protesters" will be in the limelight. If they actually had anything people wanted to hear, they'd be the ones being invited to speak at rallies, universities, etc.

            And you can bet if THEIR scheduled speech was disrupted by protesters, they'd be screaming about how THEIR first amendment rights were trampled on by the protesters.

            reply to this | link to this | view in chronology ]

            • identicon
              Anonymous Coward, 19 Sep 2018 @ 8:58am

              Re: Re: Re: Re: Re:

              It's a matter of venue.

              Sure. That's why the protesters were not charged with (as you stated above) Tresspass, Disturbing the Peace, probably some other misdemeanors could be tossed at them.

              So no. It isn't a matter of venue. Otherwise they would have been charged with a crime since he paid for the venue, hired staff, and all, no?

              reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 18 Sep 2018 @ 11:15am

          Re: Re: Re:

          So the first time someone who isn't the president is sued for inciting a riot by saying, "Get 'em out of here.", we can point to the President as precedent for why this isn't allowed, right?

          NO, I'm sure someone who isn't of the 1% won't get the same treatment... even if they add, "don't hurt 'em"...

          reply to this | link to this | view in chronology ]

          • icon
            Bamboo Harvester (profile), 18 Sep 2018 @ 11:48am

            Re: Re: Re: Re:

            "Get 'em outta here" is probably given about 10,000 times per night or more in the US. By bar and club owners speaking to bouncers. And they don't add "don't hurt 'em".

            Come to think of it, I've heard a lot of cops say "get 'em outta here" over the years as well.

            reply to this | link to this | view in chronology ]

            • icon
              The Wanderer (profile), 18 Sep 2018 @ 8:07pm

              Re: Re: Re: Re: Re:

              Not addressing the rest of the situation (it's complicated, and while I disagree with your perspective on a lot of it, I think you're probably right in some important aspects), but "speaking to bouncers" is a very important distinction vs. "speaking to a large, riled-up, potentially-undisciplined crowd which is already inclined to be hostile to the people in question".

              reply to this | link to this | view in chronology ]

  • identicon
    ryuugami, 18 Sep 2018 @ 5:14am

    The left has become a part of truly crazy people.

    Been to an art supplies store recently? Cause that's an almost comically wide brush you're sweeping with.

    reply to this | link to this | view in chronology ]

    • icon
      PaulT (profile), 18 Sep 2018 @ 5:28am

      Re:

      Misrepresenting the opinions of other people is far easier than examining your own faults, as we are shown by certain people here constantly..

      reply to this | link to this | view in chronology ]

      • This comment has been flagged by the community. Click here to show it
        identicon
        John Smith, 18 Sep 2018 @ 5:56am

        Re: Re:

        Then there are the cowards who call names andf talk shit from behind monitors, while real men like Trump win the presidency.

        That's what a NOBODY has to do, though, since the only way they ever get noticed is when they're attacking an actual somebody.

        Kind of like that irrelevancy Masnick, whose only claim to fame is hosting a website. King Geek!

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 18 Sep 2018 @ 6:05am

          Re: Re: Re:

          Then there are the cowards who call names andf talk shit from behind monitors, while real men like Trump win the presidency.

          John Smith - you are also calling names and talking shit from behind a monitor. Congratulations. You've played yourself.

          Either drop this line of chest-beating or pick something that doesn't also apply to you.

          Or better yet, just actually try to add to the conversation instead of pursuing a juvenile vendetta against some guy on the internet. That would be the actual way to prove your superiority.

          reply to this | link to this | view in chronology ]

        • icon
          PaulT (profile), 18 Sep 2018 @ 6:19am

          Re: Re: Re:

          "Then there are the cowards who call names andf talk shit from behind monitors, while real men like Trump win the presidency."

          If Trump's the standard I have to beat, I could win in a heartbeat. Unfortunately, I'm not eligible, so I'll keep to mocking the liars who have infested the places I hang out instead.

          "Kind of like that irrelevancy Masnick, whose only claim to fame is hosting a website."

          Whereas your only claim to fame is trying to act superior to the people in the comments section of his website. Yay, you!

          reply to this | link to this | view in chronology ]

          • identicon
            Anonymous Coward, 18 Sep 2018 @ 6:36am

            Re: Re: Re: Re:

            As much fun as you might have mocking him, it's not really adding much to the conversation. Can we dispense with the chest-beating and name-calling and talk about relevant things?

            reply to this | link to this | view in chronology ]

            • icon
              PaulT (profile), 18 Sep 2018 @ 6:53am

              Re: Re: Re: Re: Re:

              Sure. What's relevant that hasn't been discussed yet? All I can see so far is a fairly simple and uncontroversial article, backed with a couple of regular fools showing up to talk about something else.

              If anything else is being missed, please let me know what it is.

              reply to this | link to this | view in chronology ]

              • identicon
                Anonymous Coward, 18 Sep 2018 @ 9:03am

                Re: Re: Re: Re: Re: Re:

                Not really a lot, no - unfortunately the people who could probably benefit from an in-depth discussion on 1st amendment rights are also unlikely to listen.

                I said what I said more due to the post I replied to being a continuation of you and John Smith sniping at each other in various articles, which gets pretty old, at least in my opinion.

                I'd prefer for the shitstarters to be called out once on starting shit in each instance, asked to keep things relevant, and then when they don't, ignored ... like the AC in the other reply to me suggested.

                It's only a request, mind, for your consideration.

                reply to this | link to this | view in chronology ]

            • identicon
              Anonymous Coward, 18 Sep 2018 @ 7:28am

              Re: Re: Re: Re: Re:

              I thought the alternative to censoring was more conversation. Perhaps there is another alternative, ignoring?

              reply to this | link to this | view in chronology ]

        • icon
          Stephen T. Stone (profile), 18 Sep 2018 @ 6:56am

          there are the cowards who call names andf talk shit from behind monitors

          So…

          Kind of like that irrelevancy Masnick, whose only claim to fame is hosting a website. King Geek!

          …does that make you a coward?

          reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 18 Sep 2018 @ 7:19am

          Re: Re: Re:

          Kind of like that irrelevancy Masnick, whose only claim to fame is hosting a website. King Geek!

          Well I guess that makes Mark Zuckerberg and the creators of Google, Twitter, Deviantart, Reddit, Imgur, Amazon, and others like them all irrelevant.

          I mean come on, all they did was host a website. Big deal right?

          (note: this is me sarcastically calling you on your BS)

          reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 18 Sep 2018 @ 8:32am

          Re: Re: Re:

          You are incorrect, The 'king geek' as you put it would be Randall Munroe, the creator of xkcd.

          reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 18 Sep 2018 @ 1:23pm

          Re: Re: Re:

          Hey bro, how the movie business going? Or was it music? Mail order? It’s hard to keep track of all the awesome shite you really, honestly, totally conquered. I mean it’s not like you’re an three-quarters dead, old fuck in front of a shitty AOL era computer who somehow figured out how to navigate away from FOX news and can’t get back, is it?

          reply to this | link to this | view in chronology ]

  • identicon
    David, 18 Sep 2018 @ 6:41am

    What definition of "violence" is the court using here?

    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.

    "Get them out" does not imply "friendly ask them to leave". It means removal by force. The difference between force and violence is slim and in my book more or less rides on the amount of control regarding the application of force. The ability to apply physical force in a controlled manner for the purpose of creating order is basically the privilege of law enforcement who are supposed to have the requisite training (believe it or not).

    So inciting untrained agitated persons to employ force is similar enough to inciting violence that I'd have liked the court to spend some more consideration on determining whether a line had been crossed.

    reply to this | link to this | view in chronology ]

    • icon
      PaulT (profile), 18 Sep 2018 @ 6:55am

      Re: What definition of "violence" is the court using here?

      ""Get them out" does not imply "friendly ask them to leave". It means removal by force"

      Does it? I hate to defend Trump and it's pretty obvious what he meant, but you really don't want to be introducing after-the-fact dissection of short phrases into these kinds of things. For example:

      https://en.wikipedia.org/wiki/Derek_Bentley_case

      reply to this | link to this | view in chronology ]

    • identicon
      bob, 18 Sep 2018 @ 6:55am

      Re: What definition of "violence" is the court using here?

      No the court made a good call here. As much as I hate Trump his speech in this instance is protected.

      If the people were injured or assaulted then they should go after the people that did the assaulting. It would also be a good idea for all future events for the venue to have people assigned and trained to do the act of escorting others out of the venue.

      reply to this | link to this | view in chronology ]

      • icon
        Bamboo Harvester (profile), 18 Sep 2018 @ 8:01am

        Re: Re: What definition of "violence" is the court using here?

        I suggested that to Mick and Keith years back. They hired the Hell's Angels....

        reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 18 Sep 2018 @ 7:03am

      Re: What definition of "violence" is the court using here?

      The ability to apply physical force in a controlled manner for the purpose of creating order is basically the privilege of law enforcement who are supposed to have the requisite training (believe it or not).

      ...and also anyone who owns property, anyone who arranges to rent said property, anyone authorized to act on behalf of either of the prior groups, anyone in defense of others, anyone at all in 23 states, and anyone in the remaining 27 states who cannot effectively retreat from the situation, as well as anyone at all who witnesses a specific group of crimes (which varies by jurisdiction). But yes, it's a very exclusive "privilege."

      reply to this | link to this | view in chronology ]

    • icon
      James Burkhardt (profile), 18 Sep 2018 @ 8:52am

      Re: What definition of "violence" is the court using here?

      As the court notes, he undermines it as a call to violence by immediately also claiming 'don't hurt them'. You can't separate the context and get incitement to violence.

      reply to this | link to this | view in chronology ]

  • identicon
    Baron von Robber, 18 Sep 2018 @ 7:31am

    I'm not sure this was the same (Nuremberg) rally, but at one he claimed he would pay for legal bills. That, I figure, would qualify for incitement.

    reply to this | link to this | view in chronology ]

    • icon
      That One Guy (profile), 18 Sep 2018 @ 6:52pm

      Re:

      If it was in the same rally that would most certainly change the context, yes.

      'Don't hurt 'em... but if you do happen to go a little overboard, which I am absolutely not suggesting you do, I'll cover any legal bills you might get from that.'

      reply to this | link to this | view in chronology ]


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