Defense counsel argued that Trump was exercising his free speech in calling for the removal of the protesters. However, Judge Hale that the violence occurred immediately after Trump’s worlds and that “it is plausible that Trump’s direction to ‘get ‘em out of here’ advocated the use of force.” The court described Trump’s words as “an order, an instruction, a command.” Accordingly, if Trump is viewed as inciting violence, the words would lose their protections under the First Amendment.
For the record, I have long been a critic of the criminalization of speech, including speech deemed “violent.” Violent speech is protected under the First Amendment. The Supreme Court has repeatedly held that citizens cannot be prosecuted for their exercise of free speech, even in the case of so-called “violent speech.” See Brandenburg v. Ohio, 395 U.S. 444, 447–48 (1969) (per curiam); see also NAACP v. Claiborne Hardware Co., 458 U.S. 886, 928–29 (1982). The only exception to this rule is found in extreme cases where the speech is akin to “one who falsely shouts fire in a crowded theatre.” Brandenburg, 395 U.S. at 456 (Douglas, J., concurring). In such cases, the Court has stressed that “the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” Id. at 447. The government must show not only that the defendant both advocated imminent violence, but also that such advocacy was likely to incite or produce such a response. Hess v. Indiana, 414 U.S. 105, 108–109 (1973).
The plaintiffs are seeking unspecified financial damages from Trump and the three supporters who allegedly assaulted them. The court ruled “In sum, the Court finds that Plaintiffs have adequately alleged that their harm was foreseeable and that the Trump Defendants had a duty to prevent it.”
Bamberger is a Korean War veteran who later apologized for wearing his uniform at the rally.
Heimbach sought unsuccessfully to bar discussion of his association with a white nationalist group but the judge allowed the evidence to be used, particularly since he allowed Nwanguma, an African-American, to argue that she was the victim of racial, ethnic and sexist slurs from the crowd at the rally.
