A federal appeals court ruled Tuesday that President Donald Trump cannot be sued by protesters who said he incited a riot in 2016.
The protesters alleged Trump incited violence against them at a March 2016 campaign rally at the Kentucky International Convention Center in Louisville when the then-candidate yelled at five different times during his 35-minute speech to “get them out of here.”
The Cincinnati-based Sixth Circuit Court of Appeals said Trump’s remarks were protected by the First Amendment because it did not include a single word encouraging violence.
“The fact that audience members reacted by using force does not transform Trump’s protected speech into unprotected speech,” Judge David McKeague wrote in the court’s majority ruling. “The reaction of listeners does not alter the otherwise protected nature of speech.”
In a 3-0 ruling, the court reversed the district court’s decision not to grant Trump’s motion to dismiss the case and remanded the case back down to the lower court to issue an order dismissing the claims.
The court also said the protesters had failed to make a valid incitement-to-riot claim under Kentucky law.
“The words allegedly uttered by presidential candidate Donald Trump during his speech do not make out a plausible claim for incitement to engage in tumultuous and violent conduct creating grave danger of personal injury or property damage,” wrote McKeague, a George W. Bush appointee.
The judge noted that Trump’s “Get’ em out of here” remarks were immediately followed by “don’t hurt ‘em,” which he said explicitly negates any implication of incitement to riotous violence.
Judge Helene White sided with the majority ruling, but in a concurring opinion of her own, the Clinton-appointee said the majority omitted “salient details of Trump’s speech” that made it a closer call for her.
She said the majority overemphasized the legal significance of the “don’t hurt ‘em” statement. But she said she ultimately agreed the lower court’s decision should be revered because the protesters’ allegations are insufficient to constitute incitement to riot under Kentucky law.
“Given our agreement that plaintiffs have failed to state a claim under Kentucky law, there is no need to reach the constitutional issue, and we should not offer our advisory opinion on whether if the speech had violated the incitement statute, it would nevertheless be protected by the First Amendment, thus rendering the statute unconstitutional as applied,” she wrote.
Judge Richard Griffin, a George W. Bush appointee, also joined the majority ruling.
BY LYDIA WHEELER – 09/11/18