“Get ’em out of here… Don’t hurt ’em, don’t hurt ’em” held not an incitement to riot and protected by 1st Amendment
At a Trump campaign rally in Louisville on March 1, 2016, anti-Trump protesters tried to disrupt the event, as they had done and would do elsewhere, like Chicago.
In Louisville, Trump called for the crowd to “get ’em out of here… Don’t hurt ’em, don’t hurt ’em.”
Video clips showed some of the protesters being pushed:
— Christina Mora Dettman (@_ChristinaMora) March 2, 2016
— michael (@MichaelMcKaydds) March 1, 2016
The result was a media narrative of Trump inciting violence, and a lawsuit by the protesters claiming Trump violated Kentucky law against inciting a riot:
Three Louisville residents who have sued real estate mogul Donald Trump for allegedly inciting a riot at his March 1 presidential rally said Friday the Republican front-runner should be held accountable for his hateful political rhetoric.
The lawsuit, filed in Jefferson Circuit Court on Thursday evening, alleges Henry Brousseau, Kashiya Nwanguma and Molly Shah were peacefully demonstrating at the Kentucky International Convention Center when Trump told supporters to “get them out of here.” All three plaintiffs also accuse a white supremacist and a Korean War veteran of assaulting them during the event after Trump’s comments.
The case was removed from state court to federal court because it met the test for federal diversity jurisdiction (plaintiffs were citizens of different states than all the defendants, and the amount in controversy exceeded $75,000).
The District Court refused to dismiss the lawsuit in its entirety (pdf.), allowing the incitement to riot claim to survive. In recognition of the disputed basis for its ruling, the District Court certified the case for interlocutory appeal. (That is, normally you only can appeal from a final judgment or an injunction, not from a denial of a motion to dismiss.)
The Appeals Court summarized the issue and holding:
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. 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.
The three-judge panel was unanimous that the words were not an incitement to riot, and voted 2-1 on the 1st Amendment protection even if the words violated Kentucky law on inciting a riot.
Read the whole thing, but the law was so clear that Trump’s comments were protected that it should not have taken an appellate court to dismiss the case.
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