A U.S. District Court has refused to throw out a lawsuit alleging that now-President Trump incited violence against protesters at one of his campaign rallies last year.  The case raises one of the thorniest issues in First Amendment law: whether and to what extent my speech can constitutionally be restricted because of what someone else might do in response.  When am I responsible if you break the law after I deliver a fiery speech?

The three plaintiffs in the case—Henry Brousseau, Kashiya Nwanguma, and Molly Shah—attended a Trump campaign rally in Louisville, Kentucky last March to protest Trump.  They allege that Trump supporters physically attacked them and forced them to leave the rally after the candidate shouted at the crowd to “get ’em out of here.”

After Trump’s call, Nwanguma and Shah say they were shoved and struck, and Brousseau, a seventeen-year-old high school student, claims he was punched in the stomach.

The three sued Donald Trump and the Trump campaign, alleging, among other things, that Trump incited the crowd to violence.  They also brought assault and battery charges against three members of the audience they say attacked them, including a leader of a white nationalist group. 

The Supreme Court established the law for cases like this in Brandenburg v. Ohio (1969).  Brandenburg concluded that the First Amendment protected a KKK leader who espoused “revengeance” against the suppression of the white race by the President, the Court, and Congress, to a group of KKK organizers gathered at a rural farm. The Court held that the government may not “forbid or proscribe advocacy of the use of force … except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”  Speech that is deemed an incitement to violence under that test doesn’t just get less constitutional protection—it’s not protected by the First Amendment at all.

Applying that established test, Judge David J. Hale of the Western District of Kentucky rejected the Trump defendants’ motion to dismiss the case. He concluded that “get ‘em out of here” is “an order, an instruction, [or] a command” that “at least implicitly encouraged the use of violence or lawless action.”  The protesters adequately alleged that Trump’s statement was likely to incite violence, the Court reasoned, “most obviously, by alleging that violence actually occurred as a result of the statement.”

Since its 1969 origin, Brandenburg’s reach has arguably been limited in at least one context. In Holder v. Humanitarian Law Project (2010), a case I helped litigate, the Supreme Court didn’t require the government to satisfy Brandenburg’s test when it upheld the federal law banning material support to terrorism—which criminalizes providing expert advice and assistance to designated terrorist groups—against a First Amendment challenge. This means that, at least in the context of foreign terrorism, the government can now do more to stop speech it says contributes to violence than Brandenburg allows.

But the Trump defendants asked the court to go in the other direction.  They sought to expand the First Amendment beyond its established ambit domestically, to limit the plaintiffs’ ability to seek damages from Trump. President Trump argued that he had, in essence, a free speech right to incite violence against protesters who, he says, shouldn’t have been there in the first place.  The District Court refused that invitation.

President Trump has not always been so pro-free speech. He has demonized the press as “the enemy of the American People” and “the opposition party,” and has called journalists “among the most dishonest human beings on earth.”  Both as a candidate and as President, he has repeatedly advocated for limitations on First Amendment protections in order to make it easier to sue media outlets that give him unfavorable coverage.  And his administration has barred less Trump-friendly media outlets from participating in White House press briefings.

Free speech, it seems, is good for the President only when it suits him. 

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