It’s one thing for partisans and talking heads to claim that Donald Trump’s campaign rhetoric in Kentucky one night in March 2016, specifically his instructions to “get ’em out of here,” incited violence against the protesters he wanted removed.
It’s wholly another for a federal judge, constrained by the First Amendment’s right to free speech among other things, to find such a claim sufficiently plausible to allow a lawsuit to go forward accusing Trump of inciting to riot, as Kentucky U.S. District Judge David J. Hale did in a decision Friday.
Not only did Hale find that Trump and his campaign may be responsible for inciting a riot, he found that they plausibly “had a duty” to prevent violence that they failed to uphold, opening them to negligence charges.
The judge’s decision may be reversed on appeal, but even if it isn’t, those who sued will bear a heavy burden in making their case. The whole situation, as with almost everything Trumpian, is surely unprecedented.
Indeed, considering the high barriers the Supreme Court has erected to protect even the most inflammatory speech, the decision was startling. Few such cases survive, and this one may not, either.
But a closer look at Hale’s opinion suggests that it wasn’t just Trump’s words that night in Kentucky that persuaded him to let the case go forward.
He cited in support of his decision a pattern of similar Trump campaign speeches submitted as examples by the plaintiffs, Kashiya Nwanguma, Molly Shah and Henry Brousseau, to show that Trump knew exactly what he was doing and that the instructions were aimed not at security guards, as campaign lawyers claimed, but at people in the audience.
The specific case at issue involved alleged attacks on three protesters by Trump supporters on March 1, 2016, at the Kentucky International Convention Center in Louisville. “As they were protesting,” the judge wrote, “Trump said ‘Get ’em out of here.’”
The three were then physically attacked, with Trump adding, “‘Don’t hurt ’em. If I say ‘go get ’em,’ I get in trouble with the press.’”
Lawyers for Trump’s campaign, in their motion to have the case thrown out, claimed among other things that Trump wasn’t actually speaking to the crowd that night when he said “get ’em out of here.”
The protesters’ disruptions, they argued, “were loud enough to distract Mr. Trump from his position on the dais. Upon noticing the protesters attempting to disrupt his speech, Mr. Trump said ‘Get them out of here.’ Plaintiffs state without factual support that this directive was issued to the crowd writ large, but it is more plausible that Mr. Trump was simply instructing security to remove those individuals who were making it impossible for others to hear his speech.”
That argument, Hale wrote, is indeed plausible. But it’s equally plausible that “Trump’s order to ‘get ’em out of here’ was directed at audience members.
Hale, appointed to the bench by President Barack Obama, specifically referenced “multiple occasions before and after the Louisville rally when Trump allegedly made comments endorsing or encouraging violence against protesters.”
A Nov. 21, 2015, rally in Birmingham, Ala., where after a protester was attacked, Trump said, “He should have been, maybe he should have been roughed up.”
A Feb. 1, 2016, rally in Cedar Rapids, Iowa, where, the suit said, “Trump instructed those in the crowd to ‘knock the crap out of’ anyone who was ‘getting ready to throw a tomato.’ Trump followed this instruction by saying, ‘Seriously. Okay? Just knock the hell.…’ Trump continued by ensuring the crowd that if and when they took heed of his instruction, he would cover their legal fees.…”
A Feb. 22, 2016, rally in Las Vegas at which Trump “expressed his desire for the way things once were: ‘I love the old days. You know what they used to do to guys like that when they were in a place like this? They’d be carried out on a stretcher folks.’”
A March 4, 2016, rally in Warren, Mich., during which Trump asked that a protester be removed, urged people not to hurt him, but then said, “‘If you do, I’ll defend you in court. Don’t worry about it.’”
All of these incidents were well reported by the news media. Indeed, The Post’s Philip Bump cited many of them in a March 14, 2016, article headlined, “Could Donald Trump be held legally responsible for inciting violence at his rallies?”
“Donald Trump,” wrote Bump, “is protected by the First Amendment and can say whatever he wishes. But there are boundaries to the protections the amendment offers, such as the hoary “fire in a crowded theater” example. There are also instances in which encouraging others to commit a criminal act — “incitement” — are legally prohibited.”
The article then went on to quote Hermann Walz, a practicing attorney in New York who is an adjunct professor at John Jay College of Criminal Justice and who served as a prosecutor in both Queens and Brooklyn:
Short of Donald Trump saying something like, ‘Get that guy and punch him in the face,’ or something like that, I don’t see that he would have any real liability,” Walz said. “Otherwise, he would have to create the atmosphere and give the intention, without actually saying it, that it’s okay to beat these people up here in front of me.
But “plaintiffs allege that Trump intended for his statement to result in violence … and they provide facts to support that allegation,” Judge Hale wrote. “Whether he actually intended for violence to occur,” he added, remains to be determined.
Further, he wrote, the three “allege throughout the complaint that Trump knew or should have known that his statements would result in violence, and they describe a prior Trump rally at which a protester was attacked. The Court finds these allegations to be sufficient.”
In previous cases, the Supreme Court has been loath to hold any kind of speech, including that of the Ku Klux Klan, beyond the protections of the First Amendment.
The exceptions have included “fighting words” that “tend to incite an immediate breach of the peace,” along with speech that “explicitly or implicitly” encourages the use of violence, when the speaker intentionally uses it to do so and understands that the violence is “the likely result” of the speech.
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