CINCINNATI (CN) – Protesters who say they were attacked by audience members and tossed out of a Donald Trump campaign rally in Kentucky argued Wednesday before the Sixth Circuit to have their claims against the president proceed.
Three protesters – one of whom was 17 at the time of the incident – sued Trump months before he was elected president for claims of incitement to riot and negligence after they were allegedly pushed and shoved by white nationalist members of the audience at a Louisville, Ky., campaign rally.
The protesters claim the Trump supporters attacked after the then-candidate urged his security staff to “get ‘em out of here.”
Trump and his campaign committee were granted an interlocutory appeal by the Sixth Circuit last November, after their motion to dismiss the case was denied by U.S. District Court Judge David J. Hale.
The Cincinnati-based appeals court heard oral arguments in the case Wednesday, where Jones Day attorney Michael Carvin argued on behalf of President Trump and Donald J. Trump for President Inc.
“All Mr. Trump said was ‘get ‘em out of here,’” Carvin told the Sixth Circuit panel. “He has a right to exclude unwanted intruders [from his event].”
The attorney compared the case to the 1973 U.S. Supreme Court decision in Hess v. Indiana, which involved antiwar protests on the campus of Indiana University.
In Hess, a disorderly conduct conviction was overturned by the Supreme Court after it determined a crowd member’s threat of “we’ll take the fucking street again” was protected under the First Amendment.
Carvin argued that Trump’s words “paled in comparison” to the language in Hess, and told the judges that the “audience’s reaction is not something that tells you about the constitutional validity of the words spoken.”
He also emphasized that, unlike in Hess, the presidential campaign rally was not a contentious “tinderbox” waiting for a spark.
Civil rights attorney Daniel Canon argued on behalf of the protesters, and told the panel that Trump’s request to remove them from the rally was part of a campaign-wide plan to use crowd violence to silence his opposition.
U.S. Circuit Judge David McKeague was blunt with his first question to Canon.
“What is it about the words [‘get ‘em out of here’] that rise to the level of inciting a riot?” he asked.
Canon responded that an examination of the words “in a vacuum is impossible,” and that the context is more important.
He disputed his opposing counsel’s claim and said the rally was indeed a tinderbox.
“[There were] white supremacists running around waiting for an excuse to beat people up,” Canon told the panel.
Judge McKeague questioned the attorney about Trump’s “don’t hurt ‘em” comment, which immediately followed his command to get rid of the protestors, and asked if the panel should “just ignore” the statement.
“We can’t ignore it,” Canon admitted. “Just saying ‘don’t hurt ‘em’ could be mitigating, but it doesn’t excuse the inciting conduct.”
The panel also included U.S. Circuit Judges Richard Allen Griffin and Helene White.
No timetable has been set for the court’s decision.