By: John Jordan, Staff Editor, J.D. Candidate, December 2018, St. Thomas University School of Law.

The Sixth U.S. Circuit Court ofAppeals, located in Cincinnati, Ohio, ruled on Tuesday, September 11, 2018 that President of the United States of America Donald J. Trump’s public statements as a presidential candidate at a March 1, 2016 rally in Louisville, Kentucky during the Republican primaries did not rise to the level of inciting a riot. At issue, were president Trump’s inflammatory remarks in reaction to protesters who were disrupting the rally.  The protester Plaintiffs claimed that President Trump’s remarks incited physical violence by other audience member upon the protester Plaintiffs. President Trump’s statements at issue were as follows: “Get‘ em out. Get ‘em out of here. Get ‘em the hell out.” Later, President Trump added the following:  “Don’t hurt ‘em. See, if I say, ‘Go get ‘em,’ I get in trouble with the press.”

            On March 31, 2017, District Court Judge David J. Hale ruled that the Plaintiffs, Kashiya Nwanguma, Molly Shah, and Henry Brousseau had stated adequate claims of incitement of a riot and negligence for their case to overcome the Defendant’s motion to dismiss and to proceed. Judge Hale’s analysis included Kentucky law, which states that incitement of a riot requires that the Defendant “incite[] or urge[] five or more persons to create or engage in a riot.” Judge Hale found factual support of a violent scene where the crowd turned on three individuals, resulting in their injury. In Judge Hale’s analysis, he applied President Trump’s alleged incitement to the test set forth in Brandenburg v. Ohio, 395 U.S. 444 (1969), which requires the following:

            (1)the speech explicitly or implicitly encouraged the use of violence or lawless action, and

            (2)the speaker intends that his [or her] speech will result in the use of violence or lawless action, 

          (3) the imminent use of violence or lawless action is the likely result of his [or her]speech.

As to prong one, Judge Hale found plausibility that President Trump’s order to “get ‘em out of here” implicitly encouraged the use of violence or lawless action.  As to prong two, Judge Hale found that the Plaintiff’s complaint provided facts to support their allegation that President Trump intended for violence to occur. As to prong three, Judge Hale found the Plaintiffs’ pleading that President Trump’s statement was likely to result in violence because violence actually occurred as a result of the statement, that President Trump knew or should have known his statement would cause violence, and that an attack on protesters at a prior Trump rally was also evidence was sufficient.

On August 9, 2017, Judge Hale granted the Defendant’s motion to certify the Court’s March 31 Memorandum Opinion and Order for interlocutory appeal or to reconsider the decision, amending the Memorandum Opinion and Order to certify the following question for immediate appeal:    Does the First Amendment protect Donald J. Trump’s March 1, 2016 statement ‘Get ‘em  out of here,’ or may the statement be found to constitute incitement of a riot?

On November 1, 2017, the Sixth Circuit Court of Appeals, recognizing the “practical and political consequences of such a case,” granted the petition for permission to appeal. On September 11, 2018, Circuit Judge McKeague reversed the district court’s denial of the Defendant’s motion to dismiss and remanded the case for entry of an order dismissing the claim of incitement of a riot against President Trump.  Judge McKeague did not find that President Trump’s words, under Kentucky law “incited tumultuous and violent conduct posing “grave danger of personal injury,” especially when President Trump’s “get ‘em out of here” statement was soon after followed by President Trump’s “don’t hurt ‘em” statement. Judge McKeague, applying the Brandenburg test, did not find President Trump’s statements outside the protection for the First Amendment because “not a single word encouraged violence or lawlessness explicitly or implicitly.” Judge McKeague reasoned that for incitement speech to lose constitutional protection, it must “specifically advocate” for listeners to take imminent unlawful action, which was not the case with President Trump’s statements. Judge McKeague further found that because President Trump’s speech was protected, the context or setting of the speech could not render President Trump’s speech unprotected.  Judge McKeague noted that the First Amendment holds that the government must tolerate insulting and even outrageous speech.

Judge McKeague’s legal analysis in his opinion is sound, and the Sixth Circuit’s unanimous ruling is reassuring.  The First Amendment in the United States of America provides broad protection of the content of speech subject to a limited and narrow class of exceptions.