A three-judge panel of the U.S. Court of Appeals for the Sixth Circuit today decided Nwanguma v. Trump, No. 17-6290:
Plaintiffs participated in a Trump for President campaign rally in Louisville in March 2016 . . . with the purpose of protesting. Perceived to be disruptive, they were unceremoniously ushered out after then-candidate Donald J. Trump said, "Get 'em out of here." Plaintiffs were pushed and shoved by members of the audience as they made their exit and now seek damages from Trump alleging his actions amounted to "inciting to riot," a misdemeanor under Kentucky law. The district court denied Trump's motion to dismiss the claim but certified its order for immediate interlocutory appeal. The court identified a two-part question for review: whether plaintiffs have stated a valid claim under Kentucky law and, if so, whether the First Amendment immunizes Trump from punishment under state law. We answer "no" to the first part, because plaintiffs' allegations do not satisfy the required elements of "incitement to riot." As to the second part, we hold "yes," Trump's speech enjoys First Amendment protection, because he did not specifically advocate imminent lawless action. The district court's denial of Trump's motion to dismiss the claim must therefore be reversed.
The opinion is by Judge McKeague. Judge White notes in her concurring opinion:
Given our agreement that plaintiffs have failed to state a claim under Kentucky law, there is no need to reach the constitutional issue, and we should not offer our advisory opinion on whether if the speech had violated the incitement statute, it would nevertheless be protected by the First Amendment, thus rendering the statute unconstitutional as applied.
Right. That's the well-known Ashwander
rule. Justice Brandeis, in a concurring opinion nearly a century ago,
neatly summarized the Supreme Court precedents on this point, which was
already well established then.
The state-law action was initially filed in Kentucky state court. The defendants removed to federal court based on diversity of citizenship. The plaintiffs are Kentuckians, and the defendants are not.
Brent Kendall has this article in the WSJ.
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