“A Game of What-Aboutism” — Ruling against Trump Leaves More Questions Than Answers on Free Speech

Below is my column in the Hill on the decision in Thompson v. Trump, the case brought by Democratic members and Capitol police officers against President Trump, Donald J. Trump Jr., Rudy Giuliani, and others for injuries (physical or emotional) related to the January 6th riot. The lawsuits against three out of four of the speakers from the rally on that day were dismissed but the motion on behalf of former President Donald Trump was denied. He could well prevail on appeal and there remain unanswered questions over the free speech protections that should be accorded such speeches.

Here is the column:

A “one-of-a-kind case.” Judge Amit Mehta‘s description of the litigation against four principal speakers at the Jan. 6 Trump rally may have been as much a prayer as a portrayal. As famed Supreme Court justice Oliver Wendell Holmes once said, “Hard cases make bad law” — and the litigation against President Trump and his associates is a hard case that just proved Holmes right.

In consolidated cases brought by Democratic members of Congress and Capitol Police officers, Judge Mehta ruled on motions to dismiss by the former president, his son Donald Jr., former Trump counsel Rudy Giuliani and Rep. Mo Brooks (R-Ala.), as well as several extremist groups like the Oath Keepers. The judge dismissed the claims of a violent conspiracy against Trump Jr. and Giuliani, and he invited Brooks to file a motion to dismiss on the same grounds. He rejected arguments that their speeches at the rally caused the subsequent rioting in the Capitol. Yet, while admitting that the case raised difficult constitutional questions, he declined to dismiss the claim against Trump.

The ruling will now allow a long-awaited appeal on core constitutional questions, including the protections for inflammatory speech.

Most analysts expected that groups like the Oath Keepers would likely remain in the lawsuit, given their active role in the rioting and the recent charges of seditious conspiracy filed against them. The most controversial parties were the speakers at the rally near the White House before the riot.

The judge’s 112-page opinion makes easy work of dismissing the claims against the other speakers. These speeches were reckless but constitutionally protected. Giuliani’s declaration — “Let’s have trial by combat” — has been cited by some critics as a clear incitement to an insurrection, but the judge found such arguments were implausible and that Giuliani’s words “were not likely” to cause a riot. He also found that Trump Jr.’s comments on the election were “protected speech,” and he rejected claims that Brooks urging Trump’s supporters to “start taking names and kicking ass” could be the basis for liability.

previously wrote that the claims against these four Jan. 6 speakers might find “a sympathetic trial judge” but that “they will likely fail on appeal, even if they survive the trial level litigation.” All but one of those claims are now dismissed on the trial level. Moreover, Judge Mehta’s opinion seems to reinforce the view that Trump’s speech was protected, too.

The judge could well be reversed on the threshold question of immunity, raised by Trump, that presidents cannot be sued for speaking on matters of public interest. Mehta was honest in saying that “this is not an easy issue” and that “the alleged facts of this case are without precedent.” Yet, he offered a detailed explanation of why he believes such immunity should not extend to a speech contesting election results — the strongest portion of his decision. In so holding, Mehta is making new law — and some jurists on appeal, particularly on the Supreme Court, are likely to be concerned over the implications of such liability for a sitting president.

However, it is the free speech issue that is most concerning. My concern is not based on any agreement with Trump’s view of the election or Congress’s certification of it; I criticized his speech as he gave it and later called for Congress to censure him; nevertheless, his remarks fall well short of the high standard set for criminal or civil liability for speech.

The Supreme Court has repeatedly rejected such liability despite the use of inflammatory or even violent words.

In 1969, in Brandenburg v. Ohio, the Supreme Court ruled that even a  Ku Klux Klan leader 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.” In Hess v. Indiana, the court rejected the prosecution of a protester declaring an intention to take over the streets because “at worst, (the words) amounted to nothing more than advocacy of illegal action at some indefinite future time.” In a third case, NAACP v. Claiborne Hardware Co., the court overturned a judgment against the National Association for the Advancement of Colored People after one of its officials promised to break the necks of opponents.

Although Trump pumped up his Jan. 6 supporters with allegations of election fraud and calls to “fight like hell,” Judge Mehta acknowledged that Trump also told the crowd that “everyone here will soon be marching over to the Capitol building to peacefully and patriotically make your voices heard.” His comments were consistent with a protest in saying that “we are going to cheer on our brave senators and congressmen and women.”

In fairness to the court, it is merely saying that the case’s plaintiffs could possibly prove a conspiracy between Trump and some Jan. 6 groups. But he cites little support for such a conspiracy beyond facts like Trump’s earlier controversial statement in a debate that the Proud Boys should “stand back and stand by.” The court’s careful, meticulous analysis on the earlier claims seems to break down over Trump’s status; it struggles to ignore the clear weight of prior case law and countervailing interpretations of Trump’s words.

Despite a lengthy, detailed discussion of issues like presidential immunity, Mehta becomes more curt and cursory over Trump’s constitutional claims. When Trump’s lawyers said his language was largely indistinguishable from that of many Democrats like Rep. Maxine Waters (D-Calif.), Mehta chided them for playing “a game of what-aboutism.”

That “what-aboutism,” however, is precisely the point. The selective imposition of liability for speech is the very thing that the First Amendment is designed to prevent.

As rioting raged in Brooklyn Center, Minn. and nationwide in 2020, Congresswoman Waters went to Minnesota and told protesters there that they “gotta stay on the street” and “get more confrontational.” Others have used language very similar to Trump’s in declaring elections to be invalid (including Hillary Clinton calling Trump an “illegitimate president“) or urging supporters to “fight” or “battle” against Republicans; Rep. Ayanna Pressley (D-Mass.) once said, “There needs to be unrest in the streets for as long as there’s unrest in our lives.”

All of those statements arguably were reckless but clearly protected speech.

Free speech demands bright lines. While this is a “one-of-a-kind case,” Trump’s comments were hardly unique. And Judge Mehta does not clearly establish why Giuliani’s “trial by combat” remark or Brooks’ “taking names and kicking ass” exhortation are not calls for imminent violence or lawlessness — but Trump’s “fight like hell” would be.

With three of the four speakers now dismissed from the case, only Trump remains. Along with him remains the most looming question: whether the Jan. 6 speech, which was central to his impeachment, was protected under the Constitution. If Trump prevails on appeal, he may claim a degree of vindication thanks to some of his fiercest opponents.

What the court dismisses as “a game of what-aboutism” is all about free speech.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can find his updates on Twitter @JonathanTurley.

293 thoughts on ““A Game of What-Aboutism” — Ruling against Trump Leaves More Questions Than Answers on Free Speech”

  1. If legal precedence matters at all (foundation of American law) it should be noted that the constitutional “Oath of Office” – under Article VI and Article II – PREDATES the Bill of Rights and 100% of all federal agencies. It even has precedence over government officials/contractors in First Amendment matters. The American Oath of Office (along with the other constitutional articles) has legal precedence.

    In other words did Trump follow the letter & spirit of the U.S. Constitution to the best of his ability? Did the leadership of executive branch agencies follow their Oath of Office?

    I’ve never met any government officials that have actually received annual Oath of Office loyalty training

  2. George, the commies are coming to get your precious bodily fluids. I would be very vigilant if I were you.

  3. Somewhat related:

    Trump had petitioned the Supreme Court for a writ of cert in the case involving records of Trump’s that were subpoenaed by the House Jan. 6 Select Committee (case 21-932), which NARA has already started turning over (based on a lower court ruling), and the Supreme Court denied cert this afternoon.

  4. You can’t arbitrarily and with great frequency step in an and out a nation willy-nilly as in a game of Marco Polo. This would create much chaos.
    “One day we’re in, they next day we’re out. One day, we’re back in, the next day we’re out”…etc, etc, etc,

    1. It is a matter of record that Lincoln denied constitutional secession, acted unconstitutionally (i.e. Chief Justice Taney), seized power and imposed a tyrannical regime on the once-free United States of America.

      It is also a matter of record that Lincoln paid the ultimate price for his heinous crimes of high office.

    1. “Lincoln tried to hold a nation together.”

      – Anny
      _____

      Where is that in the Constitution?

      Oh, yeah, nowhere.

      Nowhere is it required that states that voluntarily united must remain so.

      Neither is secession, which means secession is neither prohibited nor precluded, and is, therefore, fully constitutional.

      “Crazy Abe” had zero, NO, authority to deny secession.

      That was the end of the story and the end of “Crazy Abe” Lincoln’s unconstitutional Civil War before it started.

      Lincoln egregiously usurped power as a despot, took the law into his own hands, and violated fundamental law as a criminal of high office worthy of impeachment and conviction.

      Every effect of Lincoln, to this day, is illicit and illegitimate and must be dismantled.
      ________________________________________________________________

      “There is no provision in the U.S. Constitution which prohibits a state from seceding from the union. This is made clear by a proposal which was made at the 1787 Constitutional Convention to grant the new federal government the specific power to suppress a seceding state. James Madison, widely acknowledged as the key founding father of the Constitution and scholar, rejected this proposal stating,

      ‘A Union of states containing such an ingredient seemed to provide for its own destruction. The use of force against a state would look more like a declaration of war than an infliction of punishment and would probably be considered by the party attacked as dissolution of all previous compacts by which it might be bound.’

      “The assurance of state sovereignty is embodied in the Tenth Amendment of the Constitution, which reserves to the states all rights which have not been specifically delegated to the federal government. As the federal government was never delegated the right to force the states into violent submission, secession is properly a legal right which can be exercised at any time.”

      – Charles Moster
      _____________

      America is in a condition of hysteria, incoherence, chaos, anarchy and rebellion.

      President Abraham Lincoln seized power, neutralized the legislative and judicial branches and ruled by executive order and proclamation to “Save the Union.”

      President Donald Trump, the real President, must now seize power, neutralize the legislative and judicial branches and rule by executive order and proclamation to “Save the Republic.”

      1. “Nowhere is it required that states that voluntarily united must remain so.”

        George, when one voluntarily breaks three eggs to make an omelet, nowhere is it required that the three eggs remain united. Certain things in life do not have to be written down to be understood.

        1. S. Meyer,

          Would you care to test your glorious skills and engage in debate on the subject with James Madison et al.?
          ____________________________________________________________________________________

          “There is no provision in the U.S. Constitution which prohibits a state from seceding from the union. This is made clear by a proposal which was made at the 1787 Constitutional Convention to grant the new federal government the specific power to suppress a seceding state. James Madison, widely acknowledged as the key founding father of the Constitution and scholar, rejected this proposal stating,

          ‘A Union of states containing such an ingredient seemed to provide for its own destruction. The use of force against a state would look more like a declaration of war than an infliction of punishment and would probably be considered by the party attacked as dissolution of all previous compacts by which it might be bound.’

          The assurance of state sovereignty is embodied in the Tenth Amendment of the Constitution, which reserves to the states all rights which have not been specifically delegated to the federal government. As the federal government was never delegated the right to force the states into violent submission, secession is properly a legal right which can be exercised at any time.”

          – Charles Moster

          1. “Would you care to test your glorious skills and engage in debate on the subject with James Madison et al.?

            “There is no provision in the U.S. Constitution which prohibits a state from seceding from the union.”

            George, in the end, the final check on absolute power is revolution. Jefferson said something of that nature.

            What would James Madison have said when he was President. I doubt he would have permitted the union to dissolve. That experience was nearly seen with the Articles of Confederation that led to the Constitution. Madison recognized this and supported the new Constitution to keep the union of states together. Additionally, one has to remember the Constitution was not a singular idea. It was a compromise. All the signers had disagreements with the Constitution, while some members refused to sign even though their states eventually became part of the nation living under the Constitution.

  5. This is what failure looks like. And to think she is next in the line of succession followed by Pelosi

    Vice President Kamala Harris at the Munich Security Conference in Germany:

    “I mean, listen, guys, we’re talking about the potential for war in Europe,” ….“I mean, let’s really take a moment to understand the significance of what we’re talking about,” the veep went on. “It’s been over 70 years. And through those 70 years … there has been peace and security. We are talking about the real possibility of war in Europe”

    We are so screwed

    1. And just think, it will never be a “natural born citizen” because both of its parents were foreign citizens “at the time of the candidate’s birth,” and it will never be eligible for the office of president or vice president.

      So much for the Constitution, eh?

  6. “PUTIN AND LINCOLN – LINCOLN AND PUTIN”

    Is there a difference between these two heinous dictators?

    Putin forces Eastern Ukraine to secede into Russia.

    Lincoln forces the CSA to un-secede back into the Union.

    These despicable despots want to have their cake and eat it too.

    The way to stop them is to create a Constitution.

    Oops, that didn’t stop “Crazy Abe” Lincoln, and no sane person would conjecture in the affirmative, that it would have had any effect at all on Putin.

    At least, they are consistent; they both demand the implementation of communism in their respective countries.

      1. “RECONSTRUCTION OF A SOCIAL WORLD”

        “These capitalists generally act harmoniously and in concert, to fleece the people.”

        – Abraham Lincoln, from his first speech as an Illinois state legislator, 1837
        __________________________________________________________

        “Everyone now is more or less a Socialist.”

        – Charles Dana, managing editor of the New York Tribune, and Lincoln’s assistant secretary of war, 1848
        __________________________________________________________________________________

        “The workingmen of Europe feel sure that, as the American War of Independence initiated a new era of ascendancy for the middle class, so the American Antislavery War will do for the working classes. They consider it an earnest of the epoch to come that it fell to the lot of Abraham Lincoln, the single-minded son of the working class, to lead his country through the matchless struggle for the rescue of an enchained race and the reconstruction of a social world.”

        – Karl Marx and the First International Workingmen’s Association to Lincoln, 1864
        ________________________________________________________________

        Karl Marx’s Letter of Congratulation to Abraham Lincoln

        https://www.marxists.org/archive/marx/iwma/documents/1864/lincoln-letter.htm

          1. “If you can’t dazzle ’em with brilliance, baffle ’em with bull—-,” right, Professor Buffoon?

  7. England and France thought that Poland was worth going to war over, but they did not get it in the end. The Soviet Union did.

  8. There was war for England, France, Germany, Italy, Japan, Greece, and Philiippines. Why war for these nations, but not Ukraine?
    Could your opposition have applied just as well to these nations?

  9. Listened to V.V. Putin’s announcement on BBC: A clear, unequivocal violation of the Budapest Memorandum. Took practice from Trump in tearing things up, I guess.

    1. I don’t think Putin took any practice from Trump. More likely he saw that our top office holder is senile and unfit to lead and our vice president is stupid and unfit to lead, and the next in succession is Pelosi who is…well, I don’t want to be offensive.

      Then our military is led by poofs worried about pronouns and diversity. Can you imagine this lot actually planning and carrying out a Normandy invasion? I can’t. Could probably organize a decent orgy in a San Francisco bathhouse but that won’t win any battles. Look how they ‘withdrew’ from Afghanistan. Looked like a rabble throwing down their weapons and stampeding in panic and acted like it. What a disgrace.

      In sum, Putin can do what he wants so long as he doesn’t offend China.

      And maybe he will.

      Wouldn’t it be funny if Putin invaded the Ukraine with American military equipment abandoned by our ‘leaders’?

      Europe has complained about America for a long while. Now they will have a chance to do without us and already they don’t like it.

      1. Actually V.V. Putin tore up that MoU in 2014 by taking over Crimea.
        And sending little green men in eastern Ukraine.

    2. President Trump didn’t start ANY conflicts unlike his predecessors. He brokered three historic Mideast peace deals after people like John Kerry said it wasn’t possible. Much like most of President Trump’s many successes, the media ignored all of them.

    1. Only one thing to remember. Since 1909 and before the Socialists have been hiding behind a fence of pretending to be Democrats to cover their true identify as Socialists.

      Who else would willingly destroy a thriving economy by intentionally destroying it.

      One need look know further. If they are socialist then it’s just a choice of fascists or socialists they are all members or supporters of anti Constitutionalism, they are charlatans not citizens, and they have no business in our country especially it employed in the Government.

      That includes RINO’s Republicans In Name Only and senior members of the government and military who turned traitor.

  10. It would seem that tyrants are not very good at practicing the Golden Rule, doing to others what they would not want done to themselves.

    1. David,

      True, sort of. Tyranos, but not actually a ruler without law. There are laws and they are enforced but a tyrant in the original sense was one who was supreme in the state without sanction of existing law. The Roman dictator was not a tyrant because his was an official legal, constitutional office. The tyrant in Greece held his position without formal legal office. I suspect that a Roman dictator was possessed of more arbitrary power than most Greek tyrants. A tyrant’s seat was always on shaky ground. Some of the tyrants were great. Hieron of Syracuse probably falls into the ‘great’ category as do others. His rule wasn’t ‘without law’ just without law justifying his seat of power. Do something bad in Syracuse and you would quickly discover there is law…and it hurts. Usually there are layers of information on these issues. Just saying ‘ruler without law’ is nonsensical.

          1. David,

            You have been in the university too long. If it doesn’t say ‘law’ it isn’t law to you. For much of human history laws were unwritten customs and it was a novelty for them to be written. That was the main job of the Decemvirs in ancient Rome. Solon was tasked with something like that. But what is an order that must be obeyed if not something in the character of law? Wasn’t that the character of the earliest laws? As I said before in law one must develop a tolerance for ambiguity. At times it seems almost a Mandelbrot set, no matter how closely you look you keep seeing complexity.

            If I recall, I think one of the duties of early Anglosaxon juries was not only to pronounce a verdict but also say what the law was. Sometimes people weren’t entirely sure. It’s a fun history and evolution to explore if you have the time.

            Did you know that old English court decisions and statutes are part of our law here. I once used part of a statute passed by Edward I in 1285 to prevail on an issue. It is part of our law now.

            Try as you might, you can’t reduce it to an equation or simple sentence in many cases.

        1. I didn’t look at it until now, I didn’t need wikipedia to know a little about this, but it seems to say roughly what I said and not at all what you said. It is difficult to put some of these ideas into three words without losing most of the sense of them.

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