LOUISVILLE, Ky. (CN) – Sending a First Amendment question to the Sixth Circuit, a federal judge decided to allow an appeal by President Donald Trump’s legal team in a lawsuit accusing him of inciting violence against protesters at a Kentucky campaign rally last year.
U.S. District Court Judge David Hale on Wednesday granted a request by Trump’s legal team to appeal the judge’s earlier decision allowing three protestors to move forward with their lawsuit claiming Trump yelled “get ‘em out of here,” allegedly causing white nationalist members of the audience to physically attack them.
Kashiya Nwanguma, Molly Shah, and Henry Brousseau say they were pushed and shoved by Trump supporters at the March 1, 2016 rally in Louisville, Ky. Brouseeau, then age 17, claims he was punched in the stomach.
Trump’s lawyers argued that the president’s words are protected by the First Amendment, and his statement did not incite or advocate for violence against the protestors.
In his ruling four months ago, Hale wrote, “It is plausible that Trump’s direction to ‘get ’em out of here’ advocated the use of force.”
Hale, however, ceded Wednesday to the Trump team’s request for reconsideration of their First Amendment argument, noting the importance that such a determination would have in the case.
“Resolution of the incitement issue in this case could significantly affect the outcome: if the Sixth Circuit Court of Appeals were to find Trump’s statement protected by the First Amendment, plaintiffs’ case against the Trump defendants would be foreclosed,” Hale wrote.
Hale’s ruling certifies Trump’s appeal to the Cincinnati-based Sixth Circuit, and essentially freezes the Kentucky lawsuit for the time being.
The specific question that will go to the appeals court reads: “Does the First Amendment protect Donald J. Trump’s March 1, 2016 statement ‘Get ’em out of here,’ or may the statement be found to constitute incitement of a riot?”
Despite Hale’s ruling, he still echoed his earlier beliefs that Trump’s language could be interpreted to have incited the violence, based upon the circumstances and the intent of his words.
“Context matters,” Hale wrote. “The exclamation ‘shoot!’ might constitute incitement if directed to a crowd of angry armed individuals, but shouted by a basketball fan or muttered in disappointment, it has no violent connotations. In short, the mere absence of overtly violent language in Trump’s statement does not appear fatal to plaintiffs’ incitement claim.”
Nwanguma, Shah, and Brousseau’s lawsuit seeks damages for the alleged violence, and as part of the ongoing litigation sought access to the president’s tax returns, which he has not disclosed to the public. However, such requests will lay dormant until the free-speech issue is dealt with.
Hale’s ruling also dismissed a negligence count from the lawsuit, which claimed that the event’s security was handled improperly. The judge said the lawsuit does not reasonably argue how the security was deficient.
Greg Belzley, one of the lawyers for the protesters, told Courthouse News that he was not upset or surprised by the decision.
“To the contrary, given that any outcome in the district court was going to be appealed to the Sixth Circuit, we believe Judge Hale’s decision to certify the issue of incitement for appeal was entirely understandable and appropriate, and affords us the opportunity of arguing these issues to the Sixth Circuit now rather than later,” Belzley said.
Another lawyer for the plaintiffs, Dan Canon, recently announced that he would be running as a Democratic challenger for Indiana’s 9th District Congressional seat, which is currently held by U.S. Rep. Trey Hollingsworth.
An attorney for Trump did not immediately respond Thursday to a request for comment.