“Get ‘em out of here!”: Free Speech or Fighting Words?

On March 1, 2016, then-presidential candidate Donald Trump held a campaign rally in Louisville, Kentucky. Several protestors attended the rally, including, Kashiya Nwanguma, Molly Shah, and Henry Brousseau.[1] During the rally, Nwanguma held a sign depicting Donald Trump’s head on the body of a pig.[2]

Though the protesting was allegedly peaceful, during the rally, Donald Trump shouted into the microphone, “Get ‘em out of here.” In response, several members of the crowd began heckling the protestors, and three Trump supporters allegedly assaulted them. Matthew Heimbach shoved Nwanguma and Shah toward the exit; Alvin Bamberger shoved and allegedly struck Nwanguma; and an unidentified person punched Brousseau, a 17-year-old, in the stomach.[3]

During the interaction between protestors and Trump-supporters, Trump continued, “Don’t hurt ‘em. If I say ‘go get ‘em,’ I get in trouble with the press…” A portion of the incident was captured on video, and Trump, Heimbach, and Bamberger admitted some of the actions alleged. As a result of the incident, the protestors filed suit against Donald Trump, his campaign, and the three Trump supporters.[4]

In the Complaint, Nwanguma, Shah, and Brousseau allege assault and battery against the three Trump supporters, and they claim that Trump should be vicariously liable for his supporters’ actions. Furthermore, protestors allege that Trump should be liable for inciting a riot and negligence.[5]

In response, the defendants filed motions to dismiss. Among other things, President Trump argued that he cannot be held liable for incitement, as his statement, “Get ‘em out of here” was constitutionally protected speech.[6] But was it? What speech is protected by the Constitution, and what speech is not? What makes certain speech worthy of constitutional protection, but not others?

First Amendment Freedom of Speech

The First Amendment states, “Congress shall make no law…abridging the freedom of speech.”[7] Freedom of speech is considered a fundamental right, recognized as essential to self-fulfillment, happiness, and the development of one’s beliefs, learning, and the democratic process.[8]

Political speech is the most valuable form of speech, as it includes matters of public concern and is essential to the exchange of ideas in a democracy. In fact, the Supreme Court has recognized that political speech “is so important that ‘in public debate our own citizens must tolerate insulting, and even outrageous speech in order to provide adequate breathing space to the freedoms protected by the First Amendment.’ “[9]

However, there is no First Amendment protection for political speech that is dangerous or harmful. Therefore, dangerous or harmful speech can be prohibited.[10] Lewd or obscene speech, profanity, speech that is libelous, and speech that incites violence, including “fighting words” have all been determined unworthy of constitutional protection. “Fighting words” are defined as words so inflammatory that by merely speaking them one inflicts injury or causes a breach of the peace. Fighting words are not essential to the expression of ideas, as one can express ideas without them. They have such slight value in truth-seeking that any benefit they may bring about is outweighed by the detriment they cause.[11]

Though fighting words are clearly unprotected, since the mid-twentieth century the Supreme Court has whittled away at this category, leaving it a mere sliver. Specifically, fighting words must “have a direct tendency to cause acts of violence by the person to whom, individually, the remarks are addressed.”[12] Insulting, harsh or abusive words are insufficient. Fighting words must incite immediate violence or panic.[13]

Application to President Trump’s Case

It is imperative to recognize that different legal standards apply to the parties at the hearing of a motion to dismiss. First, the court must take all allegations in the complaint as true.[14] Second, for allegations of a complaint to survive a motion to dismiss, the court must find only that the allegations are plausible.[15] As a corollary, to win on a motion to dismiss, a defendant’s argument must demonstrate to the court that the allegations of the complaint are not plausible. These lower standards must apply in the preliminary phase of trial to avoid unreasonably limiting plaintiffs’ access to the courts at a time when discovery has not yet been completed.

In an attempt to demonstrate that Plaintiffs’ claims were implausible, Trump claimed that his comment, “Get ‘em out of here” was constitutionally protected speech that would shield him from liability. The court disagreed.[16]

Judge Hale held that the Complaint adequately (i.e., plausibly) alleged that Trump’s statement was unprotected speech that incited riot, or solicited violence, just like fighting words.[17] In making this determination, the Court applied the Brandenburg Test.

According to this test, speech is incites violence where:

“(1) the speech explicitly or implicitly encouraged … violence or lawless action,

(2) the speaker intends that his speech will result in … violence or lawless action, and

(3) the imminent use of violence or lawless action is the likely result of his speech.”[18]

Applying the first prong of the test, the court found it plausible that Trump’s comment at least implicitly advocated violence, based upon it’s tense. The phrase “Get ‘em out of here” was imperative – giving instruction, an order or a command to the members of the crowd.[19]

Second, the court found it plausible that the President intended his statement to cause violence, based the other supporting facts that were not specified in the order. Under the plausibility standard it was unnecessary to determine whether Trump actually intended violence to result.[20]

Third, Judge Hale found it plausible that the likely result of Trump’s statement was imminent violence. The strongest support for this conclusion was that Trump’s statement actually did result in violence.[21]

The court dismissed Trump’s additional arguments that a riot did not actually result and that the protestors were trespassers. Kentucky law defines “incitement” as provoking or urging others to commit a crime, though the crime need not actually occur. Additionally, the protestors were not trespassers, as they purchased tickets to the event.[22] The motions hearing was not a total failure for the President, however, as the vicarious liability claim was dismissed.

Since Judge Hale will likely preside at trial, the outcome of Trump’s freedom of speech argument at the motions hearing may provide insight as to the likely outcome if Trump were to again offer it at trial. At trial however, the plausibility standard would not apply.

At trial, Plaintiffs will have to prove it is more likely than not that Trump incited a riot, then the burden would shift to Trump to demonstrate it is more likely than not that his speech was protected. To do this, Trump could argue that his speech was political speech, necessary to the expression of political ideas, which seems unlikely. Alternatively, he could demonstrate failure of the Brandenburg Test: 1) that the speech did not encourage violence; 2) that he did not intend for violence to result; and 3) that imminent violence was not the likely result. The second prong – Trump’s intent – appears to be his strongest argument.[23]

How do we balance the need for freedom of speech with the need for physical safety and social order? If we eliminate and punish all speech that we find disagreeable, then we bind and gag not only our opponents but ourselves. Whatever standard is imposed will apply equally to all, president or protestor, Republican or Democrat.