I recently wrote about the lawsuit by Rep. Eric Swalwell against former President Donald Trump as a serious miscalculation that could result in a legal vindication for Trump either on the trial or appellate levels. In my view, the lawsuit contravenes free speech as well as controlling case law from the Supreme Court. Now two Capitol Police officers injured during the riot, James Blassingame and Sidney Hemby, have sued on similar grounds with many of the same inherent flaws. The 40-page lawsuit was written by D.C. attorney Patrick Malone, who previously filed ethics complaints against lawyers representing the Trump campaign or the Republican party.  Trump lawyers may view this lawsuit as a greater opportunity than a liability for their client.

The officers seek $75,000 in damages in their complaint but also ask for unspecified punitive damages.

The complaint presents five counts. There are actually six “counts” listed but there are two count fives in the complaint.  The second “Count Five” is actually just a demand for punitive damages, rather than an actual separate tort.  The first five counts are:

COUNT ONE (Directing Assault and Battery)

COUNT TWO (Aiding and Abetting Assault and Battery)

COUNT THREE (Directing Intentional Infliction of Emotional Distress)

COUNT FOUR (Violation of a Public Safety Statute: D.C. Code § 22-1322 – Incitement to Riot)

COUNT FIVE (Violation of a Public Safety Statute: D.C. Code § 22-1321 (a)(1), (a)(2), and (b)Disorderly Conduct)

The lawsuit notably includes the same claim of intentional infliction of emotional distress that was raised by Swalwell.  That claim runs directly counter to the controlling case law.  In 2011, the court ruled 8-1 in favor of Westboro Baptist Church, an infamous group of zealots who engaged in homophobic protests at the funerals of slain American troops. In rejecting a suit against the church on constitutional grounds, Chief Justice John Roberts wrote: “Speech is powerful. It can stir people to action, move them to tears of both joy and sorrow, and — as it did here — inflict great pain. On the facts before us, we cannot react to that pain by punishing the speaker.” Roberts distinguished our country from hateful figures like the Westboro group, noting that “as a nation we have chosen a different course — to protect even hurtful speech on public issues to ensure that we do not stifle public debate.”

The complaint adds a strained “aiding and abetting” claim in addition to the direct claim of assault and battery.  For example, the complaint alleges “Trump aided and abetted his followers’ assault and battery on James Blassingame and Sidney Hemby through his suggestive words and encouragement leading up to and on January 6, 2021, which were spoken from his position of authority and gave his message extra weight.” Imagine what would happen to free speech in the United States if people could be sued for their “suggestive words and encouragement” for third parties who later violate the law.

In Brandenburg v. Ohio, the Supreme Court ruled in 1969 that even calling for violence is protected under the First Amendment unless there is a threat of “imminent lawless action and is likely to incite or produce such action.”

Trump never called for violence and instead told his followers to go to the Capitol peacefully to “cheer” on those challenging the electoral votes. Such protests at capitals are common and, while reckless, Trump’s speech could as easily be interpreted as a call for protest rather than violence.

Notably, the Ku Klux Klan leader Clarence Brandenburg also referred to a planned march on Congress after declaring that “revengeance” could be taken for the betrayal of the president and Congress. The Supreme Court still overturned the conviction.

The court has consistently rejected these types of arguments as a threat to free speech in our society. In Hess v. Indiana, the court rejected the prosecution of a protester declaring an intention to take over the streets, holding that “at worst, (the words) amounted to nothing more than advocacy of illegal action at some indefinite future time.” In another case, NAACP v. Claiborne Hardware Co., the court overturned a judgment against the National Association for the Advancement of Colored People after one official declared, “If we catch any of you going in any of them racist stores, we’re gonna break your damn neck.” That was ruled as the hyperbolic language of advocacy.

The complaint also includes a direct claim of incitement to riot.  This will force the court to answer the question raised in the second impeachment. I have repeatedly asked in columns why, if incitement was so clear and public, there has yet to be a criminal charge brought against Trump. A wide array of legal experts insisted that this was a strong and clear case for such a charge and District of Columbia Attorney General Karl Racine garnered widespread acclaim by announcing soon after the Jan. 6 riot that he was investigating Trump for a possible incitement charge. Then nothing happened. That was strange given the insistence by legal experts that the crime was public and obvious on Jan. 6. Yet, four months have gone by without word of an interview for Trump, let alone a charge, on criminal incitement. Why?

The reasons could be the timeline which shows a chaotic and conflicting account:

►Trump ended his speech at 1:10 p.m.

►The first rioter entered the U.S. Capitol at 2:12.

►According to CNN, Trump had a heated call around 2:20 with House Minority Leader Kevin McCarthy, who told him of the breach.

►Around 2:26, Trump mistakenly called Utah Sen. Mike Lee instead of Alabama Sen. Tommy Tuberville. After Lee gave Tuberville his phone, he reportedly said that Trump did not appear to realize the extent of the rioting in the building.

►At 2:38, Trump called for his followers to be peaceful and to support police.

The biggest risk for Democrats is that this lawsuit (and Swalwell’s lawsuit) will give Trump the ultimate vindication in court. These cases are brought under the lower civil standard of proof. If Trump were able to defeat these cases under the easier standard, it would substantially undermine claims of a criminal violation.

The multiplicity of such lawsuits can increase the chances of getting a sympathetic trial judge. However, these lawsuits are inherently flawed and represent serious threats to free speech. On the existing evidence, they will likely fail on appeal, even if they survive the trial level litigation.  Moreover, the closeness of the filings may allow the Trump team to effectively choose the weakest case to try these issues by slow walking the other cases.

The absence of commentary on the threat to free speech in these lawsuits is itself chilling. While I condemned Trump’s speech (while it was still being given) and his reckless role in this riot, such views should not blind us to the implications of these actions. If courts were to adopt the arguments in these lawsuits, we would gut protections for free speech in the United States.

The complaints make sweeping and, in my view, reckless claims of liability for political expression. In the end, free speech should be vindicated but these lawsuits also could bring a type of legal vindication for Trump before the 2024 election.

Here is the complaint: Blassingame v. Trump