It’s been almost eight years since I sued then-candidate Donald Trump for inciting violence against protesters at a presidential campaign rally in Louisville, Kentucky. Kashiya Nwanguma, a 21-year-old Black college student, attended that rally. As Trump began speaking, Nwanguma quietly made her way to the front of the crowd and held up a poster depicting Trump’s head on the body of a pig. When Trump spotted Nwanguma, he ordered the crowd to eject her. That was just one of five times Trump stopped his half-hour speech to point out protesters and to command his crowd of supporters to “get ‘em out of here.” Upon Trump’s orders, the crowd descended on three people who would later become my clients: Nwanguma; Henry Brousseau, a 17-year-old white high school student; and Molly Shah, a 36-year-old white mother and special education teacher. The crowd did, in fact, get them out of there.
The crowd punched and shoved Brousseau and Shah, but Nwanguma received the worst of the crowd’s wrath. As my clients were being manhandled, Trump stated: “Don’t hurt ‘em. If I say ‘go get ‘em,’ I get in trouble with the press, the most dishonest human beings in the world.” By then, they were already hurt. Trump went on to say: “In the old days, which isn’t so long ago, when we were less politically correct, that kinda stuff wouldn’t have happened. Today we have to be so nice, so nice.” Then Trump went into a discussion about how waterboarding is “absolutely fine.”
Back then, U.S. democracy was chronically ill, but not quite looking for a hospice bed to die in. And yet, anyone paying attention knew that an unprecedented brand of American political violence was in the works on Trump’s campaign trail. High-profile legal scholars and journalists were sounding the alarm, knowing that things were going to get very ugly if someone didn’t put a stop to it. Warnings came from such unlikely sources as devout fascism enabler Sen. Ted Cruz (R-Texas), who said that a campaign bears responsibility for creating an environment where the candidate urges supporters to engage in violence.
By the time we filed our case, Trump had already stoked at least three other incidences of campaign violence. After one protester was attacked at an Alabama rally, Trump responded, “Maybe he should have been roughed up.” Trump instructed an Iowa crowd to “knock the crap out of” anyone who was “getting ready to throw a tomato.” Trump followed this instruction by saying, “Seriously. Okay? Just knock the hell….” Trump assured the crowd that “I will pay for the legal fees. I promise. I promise.” Just a week before the Louisville rally, Trump responded to a protester in Las Vegas by alluding to the fact that protesters had it too easy in present times. “I love the old days. You know what they used to do to guys like that when they were in a place like this? They’d be carried out on a stretcher, folks.” Trump told his supporters that he would like “to punch [the protester] in the face.”
In the 30 days between the Louisville rally and the day we filed our complaint, people at Trump rallies in six other cities were assaulted. At a rally in Michigan, Trump instructed the crowd to remove a protester, promising that “If you [hurt him], I’ll defend you in court. Don’t worry about it.” A reporter was grabbed forcefully and nearly brought to the ground at a press conference in Florida by Trump’s campaign manager, who was later arrested for assault. The next day at a rally in North Carolina, Trump again spoke of the “good old days” when protesters were treated “very, very rough.” Trump asserted that such treatment deterred the protesters from doing it “again so easily.” Two days later, at a rally in St. Louis, Trump claimed that “part of the problem and part of the reason it takes so long” to remove protesters was that people are too averse to hurting each other. At another rally in Arizona, a protester was punched and kicked repeatedly after being described as “disgusting” by Trump from the stage. Finally, at a rally in Janesville, Wisconsin, a 15-year-old female protester was pepper-sprayed in the face and sexually assaulted by unidentified Trump supporters.
We included all of these incidents in our complaint, and we argued to the court what should have been plain to anyone: Trump is inciting violence, and someone needs to tell him to stop. But we lost, and no one told him to stop. The Sixth Circuit Court of Appeals ended our case. In the court’s view, Trump’s speech was protected by the First Amendment because he did not specifically say “attack those protesters right now.”
Similar cases around the country met a similar fate. We will never know for sure if the courts could have stopped Trump’s momentum before his calls for violence culminated in the January 6 insurrection, but we know one thing for sure: they didn’t try. Even the civil litigation against Trump over January 6 has produced less than forceful outcomes, and the judiciary overall appears to be forever tiptoeing on broken glass when deciding whether to punish Trump for bad behavior. We are now immersed in a new era of election violence, and if the courts ever had the power to stop this moment from arriving, they chose not to exercise it.
There exists a pervasive notion that the Free Speech clause of the First Amendment offers protection so sacred that there’s no way to overcome it. We might not like Trump, but Americans value free speech above all else, and, the thinking goes, sacrifices have to be made in a liberal democracy. Jurists and scholars regularly endorse this absolutist philosophy, bolstered by nearly every special interest group you can think of; the ACLU even penned an op-ed against our lawsuit in 2017.
The guiding star on the issue of speech that advocates violence is the 1969 case of Brandenburg v. Ohio, in which the Supreme Court held that the Ku Klux Klan should be protected from prosecution because their wish for “revengeance” on federal officials did not advocate “imminentlawless action.” Brandenburg has never been refined by the high court. It is strange, though, that when lower courts apply it, it doesn’t often seem to favor criminal defendants.
The Sixth Circuit, for example, has never been quite so hawkish on the First Amendment before Trump’s campaign shenanigans. Judge David McKeague, who ruled in Trump’s favor in the Louisville case, has joined opinions holding that the Free Speech clause does not keep a court from telling a third-party non-litigant that it cannot contact members of a class action if it thinks those communications were “misleading,” and that it is constitutionally permissible to order an incarcerated person be subject to a permanent visitation restriction in retaliation for complaints of abuse by guards. Other courts have made it clear: “that a request for criminal action is coded or implicit” does not entitle it to First Amendment protection. One appellate court held there was sufficient evidence to uphold a solicitation conviction where the defendant never explicitly asked his chief enforcer to do anything but locate a judge’s home address, and even went so far as to say, “I can’t take any steps to further anything illegal.” Even judges thought of as “liberals” do not seem fazed by, say, an eight-level sentence enhancement to a Black defendant for making suggestive Facebook comments.
The willingness to overlook the supposed requirement that speech explicitly advocates violence extends to civil cases, too. In the 2019 case of Doe v. Mckesson, an unidentified police officer-plaintiff sued for injuries he sustained at a Black Lives Matter rally in 2016. According to the complaint, demonstrators threw rocks and water bottles at the police. The complaint alleged that “activist[s]”, including DeRay Mckesson, “began pumping up the crowd.” In that case, the plaintiff did not allege that Mckesson himself threw anything, nor that he told anyone to throw anything, nor even that he suggested any violent action of any kind. The complaint just says that Mckesson was “present during the protest and … did nothing to calm the crowd.” This was good enough for the Fifth Circuit Court of Appeals, who saw the First Amendment as “not a bar” to liability.
Such opinions tend to controvert any notion of free-speech absolutism as a guiding judicial philosophy. And none of these come anywhere close to the level of “imminence” present in any of Trump’s incitement cases. At his rallies, Trump told his supporters to act, and they immediately acted — the very definition of “imminent lawless action.”
To try to make sense of the courts’ approach to Trump’s speech using free speech principles is to invite mystification. Instead, we should look to external political factors that influence judicial decision making. Professors Daniel Rodriguez and Mathew McCubbins explain: “Because judges act in the middle of a political process and are not the end point, they must act strategically to get what they want. That is, judges must anticipate how other political actors will react and must take these reactions into account.” Under some interpretations of this theory, often called the “strategic decision-making” model, commentators suggest that judges trick themselves into believing their own hackneyed rationales. Judge Richard Posner once asserted that “[j]udges have a terrible anxiety about being thought to base their opinions on guesses or their personal views. To allay that anxiety, they rely on the apparatus of precedent and history, much of it extremely phony.”
The problem of Trump inciting violence is indeed a First Amendment problem, but only in the sense that the Free Speech clause creates an easy rampart for a judge to hide behind when they might not want to hold Trump accountable. And there are lots of reasons why they might not. First, political science research demonstrates that violence itself is an effective judicial influencer. In democratizing countries, non-governmental actors will strategically engage in election-related violence so as to “force the hand” of the judiciary. Versions of this phenomenon can be seen throughout U.S. history, too. Chief Justice Earl Warren, for example, allowed violence to shape the Supreme Court’s opinion in Brown v. Board of Education, as he warned other justices that “the Court should move cautiously to avoid ‘inflam[ing] the South more than necessary.’”
Violence targeting judges themselves is also becoming more and more frequent. Judge James Robart received over 100 death threats after ruling against Trump’s travel ban. The magistrate judge who issued the search warrant for Trump’s Mar-a-Lago property in August 2022 received “a deluge” of antisemitic death threats. A court security officer in New York transcribed 275 pages worth of death threats and abusive phone calls to the judge presiding over Trump’s civil fraud trial and his law clerk. And a Texas woman is about to go on trial for allegedly telling Washington, D.C. Judge Tanya Chutkan, “If Trump doesn’t get elected in 2024, we are coming to kill you, so tread lightly, bitch,” and “You will be targeted personally, publicly, your family, all of it.” It would be naïve to assume that these kinds of threats do not influence the contours of a judicial opinion, or even the ultimate outcome of a case.
Finally, there is the issue of public confidence in the courts. Trump has always known that undermining the legitimacy of the judiciary is an important chapter in the autocrat playbook. Judges know it too, and in their desire to appear impartial, they become more vulnerable to what would otherwise be unconvincing legal arguments. Even judges who are unconcerned with Trump’s public jabbering about their rulings might still be influenced to rule in his favor to preserve the courts’ appearance of legitimacy. This is not just because Trump is going to tell millions of people that the courts are illegitimate, but also because there is a very good chance that he might not follow a court’s orders. Imagine the damage done to the public reputation of the courts overall if a judge were to issue an order saying “stop inciting violence right now,” and Trump simply said, “make me.” In 2016, candidate Trump did not have the heft to successfully do that, but by 2018, President Trump could have provoked a full-blown constitutional crisis. All fears of public ridicule and scorn may be sidestepped by giving the appearance of a strictly applied First Amendment, as if to say, “We don’t condone this total breakdown of American democracy, but — [points at the Free Speech clause] — what can we do?”
It is even easier for judges to dodge the issue now, because Trump’s winning streak on speech issues has created a sort of self-fulfilling prophecy. Courts treat the First Amendment as Trump’s impenetrable armor, and it has become so. Previous opinions letting Trump off the hook undoubtedly factored into Special Counsel Jack Smith’s decision not to include incitement crimes in his indictment of Trump. If Smith thinks it is too risky to charge him for January 6, it is unlikely that any other prosecutor will charge Trump for lesser incitements in the future, and few plaintiffs’ lawyers will seek redress on behalf of protesters injured at future rallies. Similarly, the D.C. Circuit carefully parsed Judge Chutkan’s recent gag order, striking part of it down despite Trump’s openly defiant disrespect to the court in a series of social media posts that resulted in the explicit death threats to the judge described above. In the last month, Colorado state courts became the first — and only — courts to hold that Trump’s inciting speech is not protected by the First Amendment. But this determination has likely come too late to make any real difference. “Free speech,” as applied to Trump, has become too robust a defense. And of course, Trump’s lawyers are raising the Free Speech clause as a defense to everything he is presently accused of, whether it makes sense or not. One cannot blame them for sticking with a strategy that has worked so well; we might reasonably say that there is now a Trump exception to the First Amendment.
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Dan Canon is a civil rights lawyer and a professor of law at the University of Louisville, Louis D. Brandeis School of Law. He served as lead counsel for the Kentucky plaintiffs in the case of Obergefell v. Hodges, which established marriage equality in all 50 states, and has been involved in many other high-profile cases. He writes on civil and criminal justice issues for a variety of regional and national publications. His book Pleading Out: How Plea Bargaining Creates a Criminal Class was published in 2022.
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