[Ed. note: A federal appeals court recently sided with President Trump, who was sued by three local protesters after campaign rally attendees in 2016 forcibly removed them. The court found Trump did not act in violation of the state “incitement to riot” law. “The protesters intend to seek further review of the decision,” their attorney, Dan Canon, told LEO.]
To put it simply, courts have almost never found a speech to constitute “incitement,” because no one is usually stupid enough to actively encourage a crowd to commit violence.
Enter Donald Trump.
While he was on the campaign trail, Trump’s incendiary rhetoric brought out extreme feelings on both sides, which led to protests, counter-protests and, over and over again, violence. The media ate it up, and Trump made several statements that showed his general support of violence against protesters, particularly after someone threw a tomato at him in Iowa.
The violent rally in Louisville in March 2016 was just one example of many. Trump saw protesters standing silently with insulting signs and repeatedly yelled, “Get ‘em out of here!” The crowd shoved and hit the protesters, and the whole thing was caught on video and posted to YouTube. But this time, the protesters who were physically assaulted sued Trump, using a theory of incitement.
Incitement is one of those First Amendment doctrines that law students learn a bit about, but almost no one uses it anymore. Incitement had its heyday in the 1960s and 1970s during the Vietnam War and civil rights movement. In the midst of those tumultuous times, the Supreme Court defined incitement in the 1968 case Brandenburg v. Ohio. Brandenberg involved a televised KKK rally where the KKK leader promised “revengeance” if politicians continued to ignore the desires of white Americans. Although threatening, the Supreme Court found no incitement in that case, primarily because the speaker used conditional language; he promised violence if conditions were not met.
The incitement standard outlined in Brandenburg is difficult to meet, purposefully; the Supreme Court was, and still is, loathe to prescribe speech that merely offends. So, incitement has rarely been successfully asserted, even in provocative or violent situations. We as a nation, through the courts’ interpretation of the First Amendment, have been unwilling to punish speech unless it meets very specific criteria.
Trump’s attorneys filed a motion to dismiss, arguing his words were protected by the First Amendment and the trial court disagreed. Trump’s attorneys appealed to the Sixth Circuit Court of Appeals, again arguing that the standard for incitement was not met by the allegations contained in the complaint.
In Nwanguma v. Trump, the Sixth Circuit agreed with Trump.
I disagree with the Sixth Circuit, which is fine. I do think Trump committed incitement at the Louisville rally.
I disagree not only with the result, but the path the Sixth Circuit took to get there. I object to the Sixth Circuit’s muddying of an already muddy doctrine. Incitement, as any law student can tell you, is confusing enough. In fact, it appears that the Sixth Circuit was itself confused about what incitement is and what it actually requires.
Just an aside: The Sixth Circuit, early in the opinion, made a major error of fact. Inexplicably, the Sixth Circuit asserts, in a footnote, that it will not consider the video footage of the assaults on the plaintiffs, which is widely available on YouTube, because this evidence was not part of the record before the district court when it decided the case.
This is patently false.
First, the complaint repeatedly references the existence of this footage online, meaning that the trial court knew that the footage was available. More important, the plaintiffs’ response to Trump’s motion to dismiss contained exhibits with several links to online videos of the assaults that took place at the Louisville rally. It is unclear why Trump’s attorneys would claim that the trial court did not have that evidence — and it is alarming that the Sixth Circuit agreed with them, when the truth is so easily gleaned.
The court had the record. The justices should have read it.
But, back to the legal reasoning deficiencies of the Sixth Circuit opinion. The Sixth Circuit relies heavily on Bible Believers v. Wayne County, a 2015 Sixth Circuit decision, to find no incitement at the Louisville rally. More specifically, the Sixth Circuit stated that the facts are essentially identical because, in both cases, “not a single word encouraged violence or lawlessness, explicitly or implicitly.”
Bible Believers involved fundamentalist Christians insulting Islam at an Arab International Festival in Dearborn, Michigan, which led to violence from the festival attendees. Nwanguma v. Trump, as the complaint states, involves a charismatic leader commanding his followers to get protesters out of the building, after he had previously defended violence at his prior rallies and stated that he would like to engage in violence himself.
The words simply aren’t the same. Different words, different intent, different result.
The Sixth Circuit’s holding to the contrary is not just wrong, but it also is based on a series of misunderstandings of incitement law.
For example, the Sixth Circuit found that Trump’s words did not explicitly or implicitly encourage violence because “[t]he words alleged in this case, much less offensive than those of the Bible Believers, are not up to the task demanded by Brandenburg.” However, as the court just said two paragraphs earlier, offensiveness is not the standard for Brandenburg: It is “encouraging, explicitly or implicitly, violence or lawlessness.” So, the offensiveness of the words doesn’t matter. The Sixth Circuit’s argument confuses the issue. Moreover, surely, encouraging violence can be done without using offensive language. The classic example of indirect incitement is Marc Antony’s speech in “Julius Caesar”: “Brutus is an honorable man.” No offensive words were used in that speech (written by Shakespeare, one must remember) and yet Constitutional Law scholars agree that it was incitement.
The Sixth Circuit also found little import in the fact that audience members did commit violence in response to Trump’s words, despite the fact that “imminent use of violence or lawless action is the likely result of the speech” is an actual requirement for incitement under Brandenburg. The Sixth Circuit again used Bible Believers to show that the violent reaction of the crowd does not matter. However, this comparison ignores another major point of difference between Nwanguma and Bible Believers: Who became violent?
Bible Believers is a quintessential “heckler’s veto” case where the issue was whether the government should be able to restrict speech because the audience violently disagrees with the speaker. The Supreme Court has already said: No; we shouldn’t censor speech just because some people may disagree with it, even if their disagreement turns violent. Nwanguma is not a heckler’s veto case, because the violence was caused by Trump’s supporters. I cannot overstate the importance of this distinction. Incitement covers situations where a speaker calls his followers to violent or illegal action. I agree that speakers should not be responsible for opponents to their speech — they are not commanding those who disagree with them. But, their supporters can be incited — commanded — to act with violence or lawlessness.
That’s what incitement is.
And that is what the complaint alleges happened here.
The Sixth Circuit also conflates the “encouragement” requirement with the intent requirement in Brandenburg by including Trump’s statement “don’t hurt ‘em” as part of the speech that should be examined to determine whether his words actually encouraged violence. The Sixth Circuit once again misconstrues Bible Believers and its reliance on the fact that the Bible Believers actually requested that the local Sheriff’s Office protect them from violence so they could “engage in their peaceful expression.” The sentence before that one — also quoted by the Sixth Circuit in Nwanguma — clearly states that these facts were used to infer the Bible Believers’ intent, not whether their words encouraged violence. The distinction matters because the court, when looking at a speaker’s intent, is decidedly not constrained by the words Trump said at the time. If the court in Bible Believers could use prior statements made to the Sheriff to glean the defendants’ intent, so too could the court in Nwanguma, and Trump made plenty of statements in support of violence toward protesters at his rallies.
Further, it is not the job of the court to, in direct opposition to the allegations in the complaint, decide that some words “neutralize” others, especially when, as the videos the Sixth Circuit ignored clearly show, the “disclaimer” was uttered after the violence had already begun. It overstepped by doing so, consequently deciding that the complaint did not sufficiently allege incitement.
In reality, what Trump said may not have been incitement, even if some of the violent attendees at the Louisville rally have stated that they were, in fact, incited into violence by Trump’s words. This case was never a slam dunk; First Amendment cases are rarely simple. But if the allegations in the complaint were not enough to show incitement, I am hard-pressed to find any situation that would meet the standard. Absent a naked call to immediate violence, which I would like to say would never happen, but I can’t be sure in today’s world, incitement appears to now be an impossible standard. Brandenburg never intended that.
It is unclear what will happen with this case now.
It could be reheard by the Sixth Circuit.
It could go to the Supreme Court, which is another question mark at the moment. No matter what happens, I hope that this decision, with its confused and confusing analysis of an important First Amendment doctrine, does not stand. In these tumultuous times, the people need a clear standard for what speech is protected even when it results in violence. Nwanguma v. Trump does not provide that guidance. •
Dr. JoAnne Sweeny is an associate professor of law at UofL.