States are cracking down on free speech. I wrote a post about this back in February and included a rundown of free speech (and right to assembly) under the U.S. Constitution. Two months later, WaPo has decided to write an article after the UN issued a statement saying that Americans’ right to protest was at risk under Trump. It’s worth being familiar with your rights. It’s double-worth keeping a close eye on the states. Don’t let them take advantage of the chaotic events unfolding at the federal level.
Donald Trump just has horrible luck with the court system. Maybe because he’s wholly ignorant of the law, maybe because he just doesn’t care, or maybe due to a mixture of the two. Whatever the case, he (and a few of his supporters) are still stuck in a lawsuit thanks to misunderstanding the First Amendment of the Constitution and blatant misreadings of relevant statutes. The US District Court for the Western District of Kentucky just issued an Opinion on Friday refusing to dismiss the lawsuit.
A year ago, the plaintiffs in the case were protesters at a Trump rally at which Trump allegedly directed his supporters to “Get ‘em out of here.” After this directive, several of his supporters apparently followed his orders and physically attacked the plaintiffs. One of the protesters is black and was shoved and then struck, one was seventeen and a high school student at the time and was punched in the stomach. Once the ruckus started, Trump apparently tried to backpedal, allegedly saying, “Don’t hurt ‘em. If I say ‘go get ‘em,’ I get in trouble with the press.” Ultimately, the attack [understandably] forced the protesters out of the rally and they later filed suit.
The lawsuit alleges assault and battery by the Defendant Trump Supporters in addition to incitement to riot, vicarious liability, and negligence on the part of Trump and his campaign. (That is, Trump encouraged the disorder and is responsible for the actions of his supporters.) The Trump Defendants filed a motion to dismiss, the defendant supporters filed similar motions and the Court decided to grant in part and deny in part. (I.e., some claims passed muster, others did not, and the Court found that most of the plaintiff’s claims were sufficient to carry the case to hearing.) I’ve only summarized Trump’s crew’s arguments, not those of the Defendant Trump Supporters, but you can read those starting on page 17 of the Court’s opinion.
In order of the Court’s discussion:
Trump Defendants (Trump and his campaign) sought to dismiss incitement of riot, vicarious liability, and negligence, gross negligence, and recklessness.
I. Incitement to Riot
The Trump Defendants argued that it isn’t plausible to say that Trump was addressing the audience members or that he intended for violence to ensue when he directed his supporters to remove the protesters (he was clearly just talking to even security). Then they claimed that because the plaintiffs never alleged that a riot actually occurred, the claim is deficient. Finally, they asserted that regardless, Trump’s statement was protected by the First Amendment.
Mmmm….nope. None of these contentions warrant dismissal at this point in the case.
Plausibility: The Court said that just because there is an alternative plausible explanation for why a defendant did something does not mean that the plaintiffs’ explanation is therefore implausible and subject to dismissal. Precedent establishes that pleadings in a case do not have to be “probable,” just “plausible.” And the plaintiffs allege numerous facts that support the notion that Trump’s words were directed to his audience. They cite numerous occasions where Trump made comments that endorsed or encouraged violence against protesters. They point to the fact that one of the Defendant Protesters interpreted Trump’s words as an instruction and took action. Presumably, if Trump had intended for security to handle the protesters, he would have directed his supporters to stop what they were doing, not offer guidance as to how to go about it (“Don’t hurt’em.”). Therefore, the Plaintiffs’ allegation is plausible and the Trump Defendant’s failed to identify an “obvious alternative explanation” for Trump’s statement that would warrant dismissal of the incitement claim.
Occurrence of a Riot: The Court had a pretty easy time with this one because the statute on which Plaintiff’s rely does not actually require the occurrence of an actual riot. Instead, it just provides that “[a] person is guilty of inciting to riot when he incites or urges five (5) or more persons to create of engage in a riot.” Further, the Trump Defendants were unable to find any case that established such a requirement. They tried to argue that the complaint doesn’t actually allege that five or more persons were involved in the Plaintiffs’ mistreatment or that there was “tumultuous and violent conduct” but again, this isn’t an argument relevant to the statute at issue. The only relevant action to the statute is that someone provoked, urged, or stirred up someone(s) else to commit a crime. There were more than five people at Trump’s rally, Trump was allegedly speaking to all of them, some of them acted. Further, Plaintiffs and one of the defendants described a “chaotic and violent scene in which a crowd of people turned on three individuals and those individuals were injured as a result.” That is enough. Five or more didn’t have to act. There didn’t need to be a riot. All that was required was incitement, and the Plaintiffs alleged sufficient facts as to prevent this claim from being dismissed.
First Amendment (my favorite because they attempt to get this case thrown out on the basis of the First Amendment is so laughable to anyone who has ever taken Constitutional Law – which the lawyers here presumably did): There is caselaw literally everywhere that holds that incitement of violence is not protected by the First Amendment. You cannot go around stirring up people to commit crimes and then claim that you were allowed to do it “because, First Amendment.” Sorry Charlies, that’s a no fly zone. The Court cited a whole long list of cases to back this up. Most to the point? Bible Believers v. Wayne Cty., “[W]hen a speaker incites a crowd to violence, his incitement does not receive constitutional protection.” Speech is considered “incitement to riot” if (1) it explicitly or implicitly encourages the use of violence or lawless action; (2) the speaker intends for his speech to result in violence or lawless action; and (3) the imminent use of violence or lawless action is the likely result of the speech. If someone is encouraging action, it might be incitement. The Court determined that the Plaintiffs adequately alleged that Trump’s statement meets the criteria.
I almost feel bad for Trump’s lawyers. They’re making such terrible legal arguments that one has to wonder whether they’re going to find a sharp decline in the number of clients interested in hiring them for their services. Frankly, the conspiracy theorist in me thinks maybe they know it’s absurd, but they want to get these arguments on the record to pave the way to use them in the future, perhaps with greater success, and dismantle our Constitution.
II. Vicarious Liability
The Plaintiffs made the argument that the two named Supporter Defendants were acting as Trump’s agents when the incident occurred. Trump Defendants argued that they cannot be held vicariously liable for the protesters actions. Yeah, the Plaintiffs were stretching here and the Court agreed with the Trump Defendants.
Court: “Agency” requires a fiduciary relation between people – there has to be the manifestation of consent by one of the people to the other person that s/he will act on his behalf and subject to his control. While employment isn’t necessary to form this relationship, there must be a “right to control” the agent’s conduct and Plaintiffs failed to demonstrate that Trump had this right over his supporters.
The principal (in this case, Trump) has to have control over the manner in which the agent acts. Merely telling someone to take an action is not sufficient to establish agency. More precisely, “An individual is the agent of another if the principal has the power or responsibility to control the method, manner, and details of the agent’s work.” The Court determined that Plaintiffs failed to include appropriate supporting factual allegations for their allegation that Trump’s supporters were his agents and therefore Trump Defendants are vicariously liable. Because of this, the Court dismissed this complaint.
The Court’s agreement with the Trump Defendants stopped at vicarious liability. Negligence requires a showing of duty, causation, breach of that duty, and subsequent damages caused by that breach (yay! Torts 101). The Trump Defendants argued that they could not be liable for negligence because they had no duty to Plaintiffs, the security at the event was adequate, there is no alleged causal connection between Trump’s words and Plaintiffs’ injuries (lol, really?), and Plaintiffs assumed the risk of the injury (oh brother, one never makes this argument. Absent injuries in something like contact sports, it’s difficult to argue that someone consented to being harmed without some sort of explicit agreement. Further, most states hold that you can’t consent to be on the receiving end of an illegal act). Finally, the Trump Defendants tried to argue that the Plaintiffs created a new negligence theory that, if accepted by the Court, would violate the First Amendment.
The Court dismissed all of these arguments out of hand. It tackled the so-called “new negligence claim” first and determined that the Trump Defendants’ assertions regarding it were baseless. The Trump Defendants asserted that the Plaintiffs failed to allege “any knowledge on the part of the Defendants” that Trump’s audience might be predisposed to violence. The Plaintiffs specifically alleged that “the directive to eject a Black woman, when several members of a group that Trump knew or should have known was a recognized hate group were present in the audience, was entirely reckless, or at least negligent/grossly negligent.” So, that prompts the question: did the Defendants just fail to read the complaint?
The Court also wasn’t convinced by the argument that allowing the Plaintiffs’ negligence claim to go forward would be in violation of the First Amendment. The cases cited by the Trump Defendants involved defamation or other false statements, which do not apply here. The one exception was a 1975 case that addressed a defendant who made threats against the president and Justice Marshall on the Supreme Court stated that the Court “should be particularly wary of adopting [a negligence] standard for a statute that regulates pure speech.” First, the Court here pointed out that this is not a categorical rule, and second, there’s still the fact that incitement is not entitled to First Amendment protection. Thus, the 1975 case is also inapplicable to the facts alleged in this matter.
The Plaintiffs also sufficiently alleged that the Trump Defendants had a duty to them. Although “a proprietor is not the insurer of the safety of its guests,” the rule in Kentucky is that “every person owes a duty to every other person to exercise ordinary care in his activity to prevent foreseeable injury.” Soooo stirring up a potentially volatile situation is probably going to be a violation of that duty.
Foreseeability isn’t a high bar to meet. In Kentucky in the proprietor-patron context, a plaintiff must show that (1) the proprietor had knowledge that one of his patrons was about to injure the plaintiff and he failed to exercise ordinary care to prevent such injury; or (2) the conduct of some of the persons present was such as would lead a reasonably prudent person to believe that they might injure other guests. Basically, if you’re holding an event and you see that somebody there is about to attack someone else there and you DON’T take some sort of ordinary preventative action, there’s foreseeability that harm is about to occur. OR, if you are watching people at your event get riled up in such a way as to cause violence and it would be apparent to Joe Blow off the street that yeah, maybe they’re going to hurt someone, there’s foreseeability.
Further, an act or omission might be negligent if the person acting either realizes or should realize that what they’re doing involves an unreasonable risk of harm to another person through someone else’s conduct, which is intended to cause harm, even if that conduct is criminal. So Trump Defendants aren’t absolved of liability just because someone did something criminal if that criminal act was a reasonably foreseeably consequence of Trump’s negligent act. The Court also pointed out that the Trump Defendants cited more inapplicable cases, none of which involved a defendant who had allegedly triggered the criminal act of a third party.
Bolstering the Plaintiffs’ argument for the foreseeability prong of the negligence test is the Plaintiffs’ allegation that Trump supporters were wearing t-shirts that identified them as supporters of the Traditionalist Worker Party; that Trump therefore knew or should have known that his audience included members of “a recognized hate group;” and that order the removal of an African-American woman was thus particularly reckless. The Plaintiffs further alleged that protestors had been attacked at earlier rallies. Therefore, the Court found that the Plaintiffs adequately alleged that their harm was foreseeable and that the Trump Defendants had a duty to prevent it.
The Trump Defendants also tried to claim that the Plaintiffs failed to plausibly allege proximate cause. I don’t know how they argued this with a straight face, I really don’t. It seems so absurd. Like, you hollered a directive and then people did stuff and somehow you’re trying to say that there wasn’t cause and effect? What? The Court was on the same page and found that the Plaintiffs plausibly alleged that Trump intended for the audience to act on his words. He said to “get ‘em out” and then people in the crowd began pushing and shoving the protestors. The Trump Defendants’ argument that Trump’s statement could not have been the proximate cause of any violence because it was likely not directed at the crown was laughable (or, as the Court put it “without merit”). Come on, dudes. You’re giving all of us lawyers a terrible name (and it’s not like we’re not already struggling in the public perception department).
The Court was likewise unimpressed with the concern that the complaint failed to allege the type or cost of security present or needed at the rally. The Plaintiffs argued that the Trump Defendants were negligent in relying on audience members to remove protestors rather than relying on professional security handle the task. Their argument had nothing to do with whether there were sufficient numbers of security officers present.
Finally (and maybe my other favorite) the Court smacks down the “assumed the risk” argument with one sentence: “The doctrine of assumption of the risk was abolished in Kentucky decades ago.”
Seriously. These lawyers are horrible. Did they not read any caselaw? Were there so few arguments to be made in defense of Trump that they just had to make really, really bad ones?
See ya in court, Trump. When you break the law, it chases you. And you’ve managed to tick off our entire judiciary and your lawyers are seemingly not good at their jobs, so good luck out there. You’ll need it.
We’ve all been really focused on the Federal government – rightly so – but we can’t lose track of what’s happening on a state level. And shit is going down on the state level. (I’m also fairly certain the state governments want to fly under the radar on this one – not only due to popularity issues, but also due to the fact that they’re blatantly disregarding our constitutional protections.)
First, you need to know a little about how freedom of speech under the First Amendment works. (If you already know a little about how freedom of speech works, feel free to skip ahead.) The most important thing to remember is that it only applies to government censorship of speech. Dude down the block can tell you to stuff it. Your [private] employer can fire you for saying something it disapproves of. Twitter can deactivate your account and keep your tweets off the internet (has anyone tried to make this happen with Trump? Although, those tweets played a crucial role in the 9th Circuit decision, so maybe better not). Remember when that Duck Dynasty guy got kicked off the show? That was also totally fine. But the government telling you to stop expressing yourself is another kettle of fish entirely. The short answer is, it can’t stop you; the First Amendment says, “Congress shall make no law . . . abridging the freedom of speech.” The long answer is…well…longer: it can in a few situations, with some limitations. Here’s a really abridged summary.
Time, Place, and Manner Restrictions (So…for example, a law saying that you can’t protest at 5:00pm on a Friday, in front of a particular government building, while hollering through a megaphone would be a time, place, and manner restriction):
- Courts scrutinize such restrictions at a lower level than they do speech content restrictions because the laws are “content-neutral.” If the law serves a “significant government interest” and also allows ample alternative channels of communication, they’re probably good to go.
- BUT there is a distinction between public spaces that have traditionally been used as public forums and spaces that are limited public forums. Public forums are harder to restrict. Limited public forums are slightly easier to restrict. Fair grounds, for example, are limited public forums, as are most public parks. Sidewalks and public streets, however, are public forums. To this end, the government (state or federal) cannot simply pass a law that prohibits all canvassing, solicitation, or protesting on sidewalks or public streets.
Content-based Restrictions (Just what it sounds like – passing a law that says you can’t say or communicate certain things):
- Courts use a higher level of scrutiny when examining this type of law, i.e. they ask “Does this serve a compelling state interest and is it narrowly tailored to achieve that interest?” The government has the burden of proof and really has to prove that the law in question is an absolute necessity. Basically, the presumption is that the law is unconstitutional unless the government can show otherwise. It’s a high bar.
- TL;DR: It’s really fucking hard for the government to get away with telling people that they can’t say certain things.
BUT certain types of content may be restricted, including:
- True threats;
- Fighting words (inciting violence, etc. but note that things like burning a cross during a political rally are constitutionally protected speech);
- Obscenity (three-factor test: (1) the average person, applying contemporary community standards, would find that the material appeal to shameful or morbid sexual interests; (2) it depicts or describes patently offensive sexual content; and (3) it lacks serious literary, artistic, political, or scientific value.);
- Clear and present danger (does the speech/activity pose a clear and present danger to a legitimate government interest? For example, distributing pamphlets that urge insubordination among members of the military is not protected speech.)
BUT then again, lots of types of expressive (maybe even offensive) speech ARE protected, including:
- Symbolic speech (for example, wearing black armbands at school to protest the Vietnam war was determined to be constitutional despite its causing discomfort among students and teachers);
- Burning the American flag;
- Wearing clothing with an offensive message or profanity on it ( for example, a leather jacket that said “Fuck the Draft” in the public corridors of a courthouse);
- Nudity or otherwise non-obscene erotic conduct;
- BASICALLY, a good rule of thumb to remember is that “unpopular” doesn’t mean that it’s okay to censor.
Now, onto the original point of this post!
At least ten states are making moves to ban or otherwise make more difficult peaceful protests. Definitely uncool. And they’re not all necessarily the states you’d expect, either, which makes this all the more important (because no one is scrutinizing some of these states). If you’re any kind of pro-Constitutional rights person, this should be really upsetting to you.
- Minnesota: The bill would raise fines dramatically for freeway protests and would allow prosecutors to seek a full year of jail time for protestors blocking a highway.
- Washington: Washington really amps up the hyperbole by trying to reclassify civil disobedience protests deemed “economic terrorism” as a felony.
- Michigan: Lawmakers introduced and then shelved an anti-picketing law that would give businesses a leg-up to sue individual protestors for their actions.
- Iowa: A Republican lawmaker has promised to introduce legislation that will crack down on highway protests.
- North Dakota: Conservative lawmakers are pushing a bill that would allow motorists to run over and kill protestors as long as the collision was “clearly accidental.” (Come again?)
- Indiana: Police may use “any means necessary” to clear protestors off of a roadway. (Um. Yikes?)
- Virginia: This one is broad and vague. The bill would increase penalties for people who engage in an “unlawful assembly” after “having been lawfully warned to disperse.” It also ups the crime to a class 1 misdemeanor, meaning that protestors could expect to be in jail for up to a year as well as pay a fine of up to $2,500.
- Colorado: This one would result in a HUGE penalty increase for environmental protestors – tampering with equipment would be reclassified from a misdemeanor to a class 6 felony (punished by up to 18 months in jail and a fine of up to $100,000.)
- Missouri: Bill would make it a crime for anyone participating in an “unlawful assembly” (again, vague language with some seriously unconstitutional overtones; it gets worse) to intentionally conceal “his or her identity by the means of a robe, mask, or other disguise.” So they’re policing expression and wardrobe. There is a section that excludes religious coverings, but a statement on the legislature’s website states that a “hood” is included in criminalized coverings.
- North Carolina: After Pat McCrory got chased down an alley by people [nonviolently] heckling him, a Republican lawmaker wants to pass legislation that will criminalize protestors who heckle their elected representatives. Because who are the citizens to criticize the people who are not doing the job they were elected to do?! (I wouldn’t expect anything else to come out of this state, tbh.)
Many, if not all, implicate the First Amendment and suggest some (if not full-on, outright) infringement on constitutionally protected speech. They aren’t in place yet and may never be in place but, in my opinion, it’s worthwhile to stay on top of who’s doing what, particularly when it has a potential impact on your personal rights and freedoms. So keep your ears to the ground, people. Make sure you know what your state is up to.
**EDIT AS OF APRIL 2, 2017**
There are now 19 states threatening protesters’ rights and the UN has said that Americans’ right to protest is under threat under Trump.
WaPo has an article (though it’s missing a lot of the critical details):