The Volokh Conspiracy
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From Judge David McKeague's opinion in today's Nwanguma v. Trump decision, joined by Richard Allen Griffin:
Plaintiffs participated in a Trump for President campaign rally in Louisville in March 2016 … with the purpose of protesting. Perceived to be disruptive, they were unceremoniously ushered out after then-candidate Donald J. Trump said, "Get 'em out of here." Plaintiffs were pushed and shoved by members of the audience as they made their exit and now seek damages from Trump alleging his actions amounted to "inciting to riot," a misdemeanor under Kentucky law [and therefore civilly actionable under Kentucky law -EV].
The district court denied Trump's motion to dismiss the claim but certified its order for immediate interlocutory appeal. The court identified a two-part question for review: whether plaintiffs have stated a valid claim under Kentucky law and, if so, whether the First Amendment immunizes Trump from punishment under state law. We answer "no" to the first part, because plaintiffs' allegations do not satisfy the required elements of "incitement to riot." As to the second part, we hold "yes," Trump's speech enjoys First Amendment protection, because he did not specifically advocate imminent lawless action. The district court's denial of Trump's motion to dismiss the claim must therefore be reversed….
Here were the plaintiffs' factual allegations:
On March 1, 2016, a campaign rally was conducted at the Kentucky International Convention Center in Louisville. The rally was organized by defendant Donald J. Trump for President, Inc. …. During the rally, then- presidential candidate Donald J. Trump, a resident of New York, spoke for approximately 35 minutes. Plaintiffs in this action, Kashiya Nwanguma, Molly Shah and Henry Brousseau, all residents of Kentucky, attended the rally with the intention of peacefully protesting. Protesters' actions during Mr. Trump's address precipitated directions from Trump on five different occasions to "get 'em out of here." In response, members of the audience assaulted, pushed and shoved plaintiffs, and Brousseau was punched in the stomach. Defendants Matthew Heimbach and Alvin Bamberger, Ohio residents and Trump supporters, were in the audience during the rally. They participated in the assaults on plaintiffs….
The majority concluded that Trump's statements, even as alleged, weren't criminal (and therefore civilly actionable) under Kentucky law:
[Plaintiffs allege] that defendant Trump incited a riot, a misdemeanor under the Kentucky Penal Code, Ky. Rev. Stat. § 525.040, actionable in damages under Ky. Rev. Stat. § 446.070. "A person is guilty of inciting to riot when he incites or urges five (5) or more persons to create or engage in a riot." Ky. Rev. Stat. § 525.040(1). "Riot," in relevant part, is defined as "a public disturbance involving an assemblage of five (5) or more persons which by tumultuous and violent conduct creates grave danger of damage or injury to property or persons …." Ky. Rev. Stat. § 525.010(5).
These statutory definitions implicate five elements: (1) incitement (2) of five or more persons (3) to engage in a public disturbance (4) involving tumultuous and violent conduct (5) creating grave danger of personal injury or property damage. The district court reasoned that the allegation that Trump directed his supporters to "get 'em out of here" satisfied the first two elements. Inasmuch as Trump's directive was nonspecific, it could plausibly have been directed to five or more persons. Insofar as "incites" appears in the statute alongside "urges," Trump's repeated express directive to "get 'em out of here" amounts to the requisite urging to action. Yet, as the district court recognized, where, as here, "incitement" is used in a criminal law, it refers to "[t]he act of persuading another to commit a crime." Here, of course, the crime Trump allegedly incited is a riot, which, by statutory definition, implicates the latter three elements. Hence, without incitement to riot, specifically, there is no "incitement."
The district court's analysis of the latter three elements, however, is decidedly thin. The court characterized the factual allegations of the complaint as describing "a chaotic and violent scene in which a crowd of people turned on three individuals, and those individuals were injured as a result." This, the district court held, is sufficient. The court correctly held that it was not necessary that a riot have actually ensued. Still, it stopped short of identifying what allegations supported a plausible finding that Trump, by words or actions, incited tumultuous and violent conduct posing grave danger of personal injury. In fact, the plausibility of such a finding is directly negated by plaintiffs' own allegation that Trump's "get 'em out of here" statement was closely followed by his admonition, "Don't hurt 'em." Defendants argue these words cannot possibly be interpreted as advocating a riot or the use of any violence….
Focusing on the former statement, the district court held that it "implicitly" encouraged the use of violence. 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." …
Accordingly, we hold that plaintiffs' allegations fail to make out a valid incitement-to- riot claim under Kentucky law….
And the majority also concluded that "any doubt about this [statutory] conclusion is wholly dispelled by consideration of the constitutional protection Trump's speech enjoys under the First Amendment":
In Brandenburg v. Ohio (1969), the Court recognized "the principle that the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action." "The Brandenburg test precludes speech from being sanctioned as incitement to riot unless (1) the speech explicitly or implicitly encouraged the use of violence or lawless action, the speaker intends that his speech will result in the use of violence or lawless action, and the imminent use of violence or lawless action is the likely result of his speech."
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…. [And post-Brandenburg precedents make clear] 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.
For instance, in Bible Believers v. Wayne Cty., Mich. (6th Cir. 2015) (en banc), our court, sitting en banc, recently addressed offensive and grossly intolerant speech of self-described Christian evangelists preaching hate and denigration of Islam to a crowd of Muslims at the Arab International Festival in Dearborn, Michigan. The court held the speech did not amount to incitement to riot under the Brandenburg test, despite the obviously explosive context, because it did not include "a single word" that could be perceived as encouraging, explicitly or implicitly, violence or lawlessness. The same can be said of Trump's speech in this case: not a single word encouraged violence or lawlessness, explicitly or implicitly. Moreover, the Bible Believers court observed that "[t]he hostile reaction of a crowd does not transform protected speech into incitement." Even though the Bible Believers' speech actually triggered a predictably violent reaction, it was their speech that the court scrutinized. And their speech was held to be protected, despite its blatantly offensive and even provocative nature and despite the crowd's reaction. It follows that if Trump's speech is protected—because it, like that of the Bible Believers, did not include a single word encouraging violence—then the fact that audience members reacted by using force does not transform Trump's protected speech into unprotected speech. The reaction of listeners does not alter the otherwise protected nature of speech.
Nor is "the mere tendency of speech to encourage unlawful acts … sufficient reason for banning it." What is required, to forfeit constitutional protection, is incitement speech that "specifically advocate[s]" for listeners to take unlawful action. Id. (citing Hess v. Indiana (1973)). Trump's words may arguably have had a tendency to encourage unlawful use of force, but they did not specifically advocate for listeners to take unlawful action and are therefore protected. As the Bible Believers court further observed, "[i]t is not an easy task to find that speech rises to such a dangerous level that it can be deemed incitement to riot." The words alleged in this case, much less offensive than those of the Bible Believers, are not up to the task demanded by Brandenburg.
The district court considered our Bible Believers ruling and authorities cited in it and reached a different conclusion: "Based on the allegations of the complaint, which the Court must accept as true, Trump's statement at least 'implicitly encouraged the use of violence or lawless action.'" But the district court did not identify "a single word" in Trump's speech that could be perceived as encouraging violence or lawlessness, thereby ignoring the fundamental teaching of Bible Believers. Instead, the district court conclusorily stated, "it is plausible that Trump's direction to 'get 'em out of here' advocated the use of force." Finding little support for the first Brandenburg factor—specific advocacy of violence—the court ostensibly placed heavy reliance on the allegations addressed to the latter two Brandenburg factors. That is, the court relied on plaintiffs' allegations that Trump intended violence to occur and knew that his words were likely to result in violence.
This very approach was rejected in Hess v. Indiana (1973), where the [U.S. Supreme] Court reversed the judgment of the Indiana Supreme Court. The Court noted in Hess that the state court had placed primary reliance on evidence that the speaker's statement was intended to incite further lawless action and was likely to produce such action. This was not enough. The Hess Court focused on the words, on the language, that comprised the subject speech, i.e., the first Brandenburg factor.
"It hardly needs repeating," the Court repeated, "that the constitutional guarantees of freedom of speech forbid the States to punish the use of words or language not within narrowly limited classes of speech." And in applying this wisdom, the Court likewise tied its conclusion to the words of the subject speech: "And since there was no evidence or rational inference from the import of the language, that his words were intended to produce, and likely to produce, imminent disorder, those words could not be punished by the State on the ground that they had 'a tendency to lead to violence.'"
In other words, Hess teaches that the speaker's intent to encourage violence (second factor) and the tendency of his statement to result in violence (third factor) are not enough to forfeit First Amendment protection unless the words used specifically advocated the use of violence, whether explicitly or implicitly (first factor). Here, too, the district court, like the Indiana Supreme Court in Hess, placed too much weight on the second and third Brandenburg factors while slighting the key role of the first. Yet, it is undisputed that the speech plaintiffs would punish under Kentucky law must meet all three factors to avoid First Amendment free speech protection….
[I]n addition to the content and form of the words, we are obliged to consider … the content, form, and context of the speech: "what was said, where it was said, and how it was said." … [W]hat is here alleged to constitute incitement to riot is just a few words, "get 'em out of here," repeated several times. The words were said at a campaign rally by the main speaker in response to disturbances caused by protesters. The words were self-evidently said in order to quell the disturbances by removing the protesters. The words were directed to unidentified listeners in the Convention Center, among whom most were Trump supporters who were not sympathetic with the protesters. In the ears of some supporters, Trump's words may have had a tendency to elicit a physical response, in the event a disruptive protester refused to leave, but they did not specifically advocate such a response. As to how the offensive words were said, we know, most relevantly, by plaintiffs' own allegations, that the words were accompanied by the admonition, "don't hurt 'em." That this undercuts the alleged violence-inciting sense of Trump's words can hardly be denied….
In fact, Trump's admonition not to harm is analogous to the circumstance considered in Bible Believers as neutralizing the inciting tendency of words that were even more offensive in nature and delivered in an even more volatile context:
"The only references to violence or lawlessness on the part of the Bible Believers were messages such as, 'Islam is a Religion of Blood and Murder,' 'Turn or Burn,' and 'Your prophet is a pedophile.' These messages, however offensive, do not advocate for, encourage, condone, or even embrace imminent violence or lawlessness. Although it might be inferred that the Bible Believers' speech was intended to anger their target audience, the record is devoid of any indication that they intended imminent lawlessness to ensue. Quite to the contrary, the Bible Believers contacted Wayne County prior to their visit, requesting that the [Wayne County Sheriff's Office] keep the public at bay so that the Bible Believers could 'engage in their peaceful expression.'"
Thus, again, in Bible Believers, we see the court examining the words used by the speaker. Upon examining the words, the court found first, that they did not specifically advocate violence; and second, that any inference that might have been drawn from the offensive and violence-inciting tendency of the words' content and context was negated by other circumstances. The same result obtains here. Just as the Bible Believers took reasonable measures to ensure peaceful communication of their ideas and prevent violence, Trump's speech itself included express disavowal and discouragement of violence….
Accordingly, our review of the content, form, and context of Trump's alleged words as a whole … reveals that his speech does not come within one of the "narrowly limited classes of speech" that do not enjoy First Amendment protection.…
Judge Helene White concurred on the statutory issue: "Although the majority opinion elides salient details of Trump's speech that make this a closer case for me than for the majority and overemphasizes the legal significance of the "don't hurt 'em" statement, I nevertheless concur in the reversal because I agree that the allegations are insufficient to constitute incitement to riot under Kentucky Revised Statutes § 525.040." She therefore concluded that there was no need to reach the constitutional issue.