Trump Asserts First Amendment Rights in Lawsuit Alleging He Incited Violence

At the same time, he seeks to muzzle the free-speech rights of the press

President Donald Trump made headlines during his campaign for the presidency, and since taking office, by attacking and even threatening the media — and by extension the First Amendment protections afforded the press. Those attacks typically follow media stories that are critical of Trump or otherwise paint his administration in a bad light.

At the same time, however, Trump is currently using the First Amendment to shield himself in a pending federal lawsuit that alleges he used inflammatory rhetoric to incite violence at his campaign rallies.

As a candidate and now as president, Trump has been accused of abusing the First Amendment to the Constitution — which guarantees freedom of speech and the press — by attacking the press, which he has described as “an enemy of the American people.” Earlier this month, for example, in the wake of a story that was critical of him, Trump took to Twitter and threatened to terminate a major news network’s TV license.

On the campaign trail, and again while president, Trump has threatened to “open up libel laws” to make it easier to sue and silence the press, even though a longstanding U.S. Supreme Court ruling on the First Amendment requires public figures and politicians like Trump to demonstrate “actual malice” on the part of the press to win a lawsuit. (Actual malice is defined by the courts as publishing a defamatory statement knowing it is false, or doing so with reckless disregard for its truth.)

In addition, despite the courts having ruled that the First Amendment protects the press’ right to publish classified information so long as journalists don’t encourage or coerce sources to break the law, Trump allegedly urged former FBI Director James Comey to consider pursuing and jailing journalists who report classified information.

These attacks on the media and First Amendment were launched by Trump even as he is claiming First Amendment protections related to words he unleased at a campaign rally in Kentucky in March 2016 that, according to a pending federal lawsuit, led to an assault on three individuals. The plaintiffs in that court case attended a Trump campaign rally on March 1 in Louisville, Kentucky, that was held at a public venue ­— the Kentucky International Convention Center.

The plaintiffs, one of whom is African American, concede they were at the rally as protestors. After Trump told the crowd to “get ‘em out of here,” the plaintiffs allege they were assaulted by members of the audience — in particular by members of a white supremacist group called the Traditionalist Worker Party.

The plaintiffs’ pleadings continue:

Trump went on to state: “In the old days, which isn’t so long ago, when we were less politically correct, that kinda stuff wouldn’t have happened. Today we have to be so nice, so nice. We always have to be so nice.” Then Trump went into a discussion about waterboarding, and how it is “absolutely fine.”

Incitement to Violence

Following Trump’s threatening inventive at the Louisville campaign rally, the three protestors bringing the lawsuit contend they were subsequently attacked and forcibly ejected by members of Trump’s audience, with several individuals from the Traditionalist Worker Party allegedly playing a major role in shoving and pushing them out of the building and punching one of the plaintiffs in the stomach at one point.

A good portion of the assault on plaintiff Kashiya Nwanguma, an African American female and a student at the University of Louisville at the time of the assault, was captured on video. [Links to video clips here.]

Trump claims that his speech is protected by the First Amendment, and he also denies that his words at the Louisville campaign rally in any way incited the crowd to violence, and he also insists that he was directing his orders to remove protestors to security personnel and not the general audience. The attorneys for the three plaintiffs dispute those assertions.

More from the plaintiff’s pleadings in the case:

Prior to [the Louisville campaign rally], the media had reported extensively on the tense, violent atmosphere at Mr. Trump’s rallies that arose from his hostile and pugnacious reaction to protesters, his habit of singling out protesters and urging his supporters to “get ‘em out of here,” his complaints that people were “too nice,” his recollections of the “good old days” when protesters were “carried out on stretchers,” and his offer to pay his supporters’ legal fees if they committed a crime or violated someone’s civil rights in the course of forcibly removing a protester from a rally.

… Mr. Trump surely appreciated the imminence of unlawful conduct that would likely follow his directives given the violence his speech had triggered at rallies before Louisville; in any event, what Mr. Trump knew and when he knew it will be fair game in discovery.

There is no question that Mr. Trump both directed and ratified the … activities in which his supporters engaged while removing protesters from his rallies, including the one in Louisville. And there already exists evidence demonstrating that Mr. Trump not only was aware that his words were likely to incite lawless conduct, but that he relished their effect.

The pleadings also point out that one of the defendants involved in assaulting the three plaintiffs, an individual named Matthew Heimbach, is the leader of the white supremacist Traditionalist Worker Party. Heimbach, according to the lawsuit, later pled guilty to a charge of disorderly conduct in relation to his behavior at the rally “and then played a leadership role in the recent neo-Nazi/white supremacist march on Charlottesville, Virginia, that claimed the lives of a young female counter-protester and two police officers.”

Trump’s attorneys have filed an appeal in the case, describing the litigation as “politically motivated” and seeking to get a higher federal court to intercede in the lower-court proceedings to prevent further fact finding in the case (called discovery). The appeal also asks the higher court to rule on the question of whether Trump’s statement at the rally (“Get ‘em out of here!”) can be considered an incitement to riot.

The lower-court judge, who had ruled that the case should proceed prior to Trump’s “interlocutory appeal” to a higher court, points out in one of his rulings that whether a statement can be considered an incitement to riot “does not ‘turn on the objective meaning of the words at issue,’ as the Trump defendants contend [but] rather, that determination depends in part on the circumstances surrounding the statement.”

In other words, context matters. Yelling fire at a TV video game in the privacy of your home, for example, is not the same as yelling fire in a crowded theater.

More from the judge’s earlier ruling in the case:

Trump’s order unquestionably was “perceived as encouraging violence or lawlessness” by at least some members of his audience, including [defendants Alvin] Bamberger and Heimbach.  Bamberger’s cross-claim [states] that he acted in response to [Trump’s] “urging.” Heimbach’s answer [in the pleadings asserts] as a defense that he “acted pursuant to the directives and requests of [Trump] ….”

Despite the violence that ensured immediately following Trump’s command to the audience ordering them to “get” the three protestors “out of here,” Trump, in his still pending appeal on the question of whether his speech at the rally is protected, insists that he was only “exercising a core constitutional right when he reacted to the disruptive protestors by saying, ‘Get ’em out of here!’”

“His statements were nothing more than an ‘exercise [of his] free-speech rights and autonomy over the content of [his] own message’ at his own political campaign rally,” Trump asserts in his pleadings. “… Without a swift and assertive rebuke from this [appeals court], such politically motivated lawfare will continue to proliferate, and will become an increasingly common tool of political sabotage in future campaigns.

“Waiting for a final judgment [in the lower court] will make it impossible to address this problem, because by that time plaintiffs will have succeeded in their mission of using the legal system to burden the president and penalize [Trump] for exercising [his] First Amendment rights,” Trump further alleges in the litigation. “This [appeals] court should not allow that to happen. For the foregoing reasons, this [appeals] court should [order that] the claims [in the lower court] against [Trump] be dismissed.”

More from Trump’s pleadings:

… Without this [appeals] court’s intervention, this litigation will inflict irreparable harm on [Trump] by subjecting [him] to punitive litigation as the price of exercising [his] core First Amendment rights, and by imposing intrusive discovery — which already includes … requests for the president’s “tax returns” and the names “of all medical providers from whom Trump has sought or received any psychological” treatment. … Allowing plaintiffs’ meritless claims to go forward would effectively punish [Trump] by forcing [him] to undergo burdensome litigation, including intrusive discovery and depositions, as the price of exercising [his] First Amendment rights.”

Double Speak

So, it seems Trump has a double standard with respect to the First Amendment. When he is accused of using abusive speech that crosses the line into inciting a riot, he argues that the First Amendment affords him broad protections, and that such claims should be dismissed as a result.

Yet, when the press airs or publishes stories critical of him and his administration that he describes as “fake news” or otherwise dislikes, he argues that federal authority should be brought to bear to limit the media’s ability to publish or air such information, and he goes as far as to claim that members of the press are “the enemy of the American people.”

The federal appeals court has not yet issued a ruling on whether Trump’s words at the Louisville rally (“Get ‘em out of here!”) can be considered as a potential incitement to riot, or if those words are protected under the First Amendment, as Trump claims, or whether it will even accept Trump’s appeal. The appeals court’s answer will determine whether the litigation against Trump in the lower federal court in Kentucky will continue, and under what conditions.

Regardless of the outcome, Trump’s stance on free-speech protections does not seem at all dissimilar to the position held by various tyrants and dictators across the globe over the centuries: Freedom of speech is a right that applies only to the crown (Trump and his cronies in this case) and not to you or me, or the press, absent his approval. That seems to be the only way to explain Trump’s invoking of the First Amendment in the Louisville case as a defense for his speech even as he continues to attack and threaten to abridge the First Amendment free-speech rights of the press.

Stay tuned….

Major Pleadings in the Case to Date

• Initial complaint

• Trump’s motion to dismiss

• Plaintiffs’ response to motion to dismiss

• Judge’s order setting deadline for additional reply briefs

• Exhibit listing links to video coverage of assaults at Louisville Trump rally

• Request by plaintiffs to depose Donald Trump

Trump’s petition for a Writ of Mandamus

Judge’s memorandum opinion and order

Trump’s permission to appeal motion

Plaintiff’s answer opposing Trump’s petition to appeal


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