A mountain of evidence links the former president’s rhetoric to the Jan. 6 insurrection attempting to overturn the election, but the First Amendment has traditionally shielded political speech from liability.
WASHINGTON (CN) — Two Capitol Police officers are asking a federal judge to hold former President Donald Trump responsible for injuries they sustained during the Jan. 6 riot.
While the evidence detailed in the complaint filed late Tuesday in Washington federal court paints a sordid picture of a desperate leader using lies to sway his base, the U.S. Constitution could be Trump’s saving grace.
“The insurrectionists were spurred on by Trump’s conduct over many months in getting his followers to believe his false allegation that he was about to be forced out of the White House because of massive election fraud by his presidential adversary Joe Biden, and that the convening of Congress on January 6 to count the Electoral College results and declare the winner was their last chance to ‘stop the steal,’” the 40-page complaint states.
The two veteran officers who filed the suit, James Blassingame and Sidney Hemby, detail the danger they faced that fateful January day, but, through Washington-based attorney Patrick A. Malone, they start the saga back in September 2020.
“It’s a rigged election,” Trump said during the September presidential debate, setting the stage for what was to follow, according to the filing. “This is not going to end well.”
“If I see tens of thousands of ballots being manipulated, I can’t go along with that,” the then-president added.
Quotes from the debate, Trump’s other speeches and tweets and retweets from his since-deleted Twitter account urging his followers to show up in Washington fill the complaint’s pages.
“Trump planted the seeds to create a public disturbance which by tumultuous and violent conduct or the threat thereof would create grave danger or injury to property and persons,” the lawsuit states, asserting a count for incitement to riot under a District of Columbia statute.
The complaint also cites the words of the House of Representative’s third highest ranking Republican, Liz Cheney of Wyoming, who spoke before the chamber the week after the insurrection and said Trump “summoned this mob, assembled the mob, and lit the flame of this attack.” Republican Senators Mitch McConnell and Mitt Romney are also quoted as blaming Trump for the riot.
The filing also uses the words of those since arrested for the attack.
“Attorneys for Proud Boys member William Chrestman, said in court papers that Trump gave the mob ‘explicit permission and encouragement’ to do what they did, providing those who obeyed him with ‘a viable defense against criminal liability,’” the complaint states.
Officers Blassingame and Hemby both say they were attacked by rioters who forced their way into the Capitol and have since struggled with the emotional fallout of the incident.
“As President of the United States and leader to his followers, who traveled from around the country to the nation’s capital at Trump’s invitation for the January 6 event, Trump was in a position of authority over his followers, who committed assault and battery on James Blassingame and Sidney Hemby,” the complaint states.
The officers assert several counts, including directing assault and battery, directing intentional infliction of emotional distress and other tort claims. They seek an unspecified amount of money, including punitive damages.
But the issues presented in the complaint are sure to raise eyebrows among constitutional law scholars.
The exact scenario of Capitol Police suing Trump was presented to several of those scholars by Courthouse News in February and their takes on the possible outcomes were mixed.
While Tuesday’s complaint points to the numerous times Trump used falsehoods to rally his base, traditionally such speech is considered among the most protected in American law.
“We don’t trust the government to determine whether those statements are correct or not in a way that would allow the suppression of speech,” Eugene Volokh, a law professor at UCLA who often advocates a purist view of freedom of speech, said in the February interview.
Some other civil claims make exceptions for false speech — like defamation claims — but Volokh said efforts to regulate such speech in the past have fallen flat.
“For a lawsuit over his speech it would apply equally to anti-police brutality activists, environmental activists; any time when you’re speaking to a group where many of the members are law abiding and some are prone to violence,” Volokh added. “That’s true of a great many political movements.”
But Eric Segall, the Ashe Family Professor of law at Georgia State University School of Law, looked to the history of Trump’s statements as grounds for courts to reexamine precedent around how speech can be punished when it incites a riot.
“These are factual issues,” he argued, suggesting the use of context, or looking backwards at what was said and done in the months leading up to a protest turned violent, could instead be used to establish new case law otherwise bound by the Supreme Court’s 1969 decision in Brandenburg v. Ohio.
Brandenburg was often cited by attorneys during Trump’s second, post-presidency impeachment trial. While Trump was ultimately acquitted in the Senate, the trial’s consistent reference to the famed case which freed a Ku Klux Klan leader from liability for a speech put the case in the forefront of American minds.
In Brandenburg, the Supreme Court narrowed inflammatory speech to only words that are “directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” This created a nearly shut window for those who wish to punish such speech.
But Segall was hopeful that the mountain of evidence in a case against Trump could convince the high court otherwise.
“Looking back at Trump’s actions, he meets that test,” he said of the monthslong disinformation campaign the former president ran following his loss in November.
Between tweets and rallies, calls to “stop the steal” and other claims, Segall said the uniqueness of Trump’s position and words could also open the door to a different, albeit narrow interpretation of case law that could hold the former president accountable.
“There’s a difference between a president of the United States on a two and a half month agenda leading up to the exact hour Congress is going to make the election final,” he said. “If we can’t distinguish that from other cases, then all is lost.”