CINCINNATI (CN) – The Sixth Circuit on Tuesday dismissed a lawsuit brought against President Donald Trump by a group of protesters forcibly removed from a Kentucky campaign rally, finding that Trump’s call to “get ‘em out of here” did not rise to the level of inciting a riot.
A three-judge panel of the Cincinnati-based appeals court ruled that Trump’s orders to have the protesters thrown out do not meet the threshold for “incitement to riot” under Kentucky law, and that his speech was protected under the First Amendment.
Then-presidential candidate Trump held a rally in Louisville on March 1, 2016, during which three peaceful protesters attempted to disrupt his speech.
On at least five occasions during the speech, Trump told his supporters and the event organizers to “get ‘em out of here,” and, at some point, the three protesters were pushed, shoved and forcibly removed, with one of them being punched in the stomach by a Trump supporter.
As the protesters were being removed from the event, Trump also told the audience, “Don’t hurt ‘em.”
The three protesters sued Trump and his campaign in Jefferson County, Kentucky Circuit Court, but after the case was removed to federal court, Trump was granted an interlocutory appeal to the Sixth Circuit.
A three-judge panel heard arguments in June, and on Tuesday the court decided to dismiss the lawsuit.
U.S. Circuit Judge David McKeague authored the court’s opinion, criticizing the district court’s analysis of Trump’s speech and its impact on the audience at the rally.
“The court,” he wrote, “correctly held that it was not necessary that a riot have actually ensued. Still, it stopped short of identifying what allegations supported a plausible finding that Trump, by words or actions, incited tumultuous and violent conduct posing grave danger of personal injury.”
McKeague attacked the plausibility of the protesters’ claims – and the lower court’s decision – in his opinion, and focused on Trump’s admonition for the crowd not to hurt the protestors.
“Yet, even if ‘get ‘em out of here,’ standing alone, might be reasonably construed as implicitly encouraging unwanted physical touching, the charge here is ‘inciting to riot,’” he wrote. “The notion that Trump’s direction to remove a handful of disruptive protesters from among hundreds or thousands in attendance could be deemed to implicitly incite a riot is simply not plausible – especially where any implication of incitement to riotous violence is explicitly negated by the accompanying words, ‘don’t hurt ‘em.’”
“If words have meaning,” McKeague quipped, “the admonition ‘don’t hurt ‘em’ cannot be reasonably construed as an urging to ‘hurt ‘em.’”
The court’s opinion went on to explain that Trump’s speech at the rally was protected under the First Amendment, specifically under the test set forth by the U.S. Supreme Court in the 1969 case Brandenburg v. Ohio.
Judge McKeague also cited the 2015 case Bible Believers v. Wayne County, Mich., in which an en banc Sixth Circuit ruled that “the hostile reaction of a crowd does not transform protected speech into incitement.”
“It follows,” McKeague wrote, “that if Trump’s speech is protected – because it, like that of the Bible Believers, did not include a single word encouraging violence – then the fact that audience members reacted by using force does not transform Trump’s protected speech into unprotected speech. The reaction of listeners does not alter the otherwise protected nature of speech.”
While McKeague conceded the protesters’ point that Trump’s words cannot be read in a vacuum and must be considered in context, he refused to uphold the lower court’s decision.
“The words were said at a campaign rally by the main speaker in response to disturbances caused by protesters. The words were self-evidently said in order to quell the disturbances by removing the protesters,” he wrote. “As to how the offensive words were said, we know, most relevantly, by plaintiffs’ own allegations, that the words were accompanied by the admonition, ‘don’t hurt ‘em.’ That this undercuts the alleged violence-inciting sense of Trump’s words can hardly be denied.”
U.S. Circuit Judges David Griffin and Helen White also sat on the panel, and concurred with McKeague’s opinion.