“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. I thought everyone wanted to live in a world where everyone was free and there was no more tyranny. I guess I was wrong.

  2. If Russia violated the Budapest Memorandum, then when can we expect Russia to be punished for the violations? Punishment should stop further agression, if that is the point. If not, then the entire Budapest Memorandum was as pointless as a “NO SKATEBOARDING” sign.

  3. Thank you, David Benson for the link.

    *************
    The justification for action is there, should any nation decide to take it, but they don’t have to take it? What’s the point in gaining the justification at all if it’s not going to be used?

  4. Putin is getting away Scot-free with all kinds of violations to international laws and treaties. World War 2 was supposed to have set the standard that, no, dictators will NOT get away with such things. They will be arrested and put on trial. What has changed?

    1. “World War 2 was supposed to have set the standard that, no, dictators will NOT get away with such things. They will be arrested and put on trial.”

      Arrested and put on trial by whom?

      There have been many dictators in the world since WW2 (Stalin, Castro, Duvalier, Chavez, Kim Jong-Un, al-Bakr, Bokassa, Amin, Bashir, Noriega, Pinochet, Assad, Hussein, Mao, Putin, Pol Pot, Khrushchev, Ceauşescu, …).

    2. “What has changed?”

      You can’t be that dense, can you?

      Biden, the propped up, demented, corrupt, illegitimate corpse is in the White House.

  5. An appeaser is one who feeds a crocodile—hoping it will eat him last.
    – Sir Winston Churchill 1954

    Democrats are all appeasers.

    1. Republicans are crocodiles. But the Jan 6 Committee is NOT an appeaser nor are the 475 witnesses who have provided their testimony and documents.

  6. Judge Notes That Trump Encouraged Crowd To “Fight”

    Finally, Judge Mehta held that Trump’s words may not be protected by the First Amendment. Courts have long held that speakers are exempt from liability unless they were explicitly or implicitly “inciting imminent lawless action,” which may apply to Trump’s words. Mehta found:

    Having considered the President’s January 6 Rally Speech in its entirety and in context, the court concludes that the President’s statements that, “[W]e fight. We fight like hell and if you don’t fight like hell, you’re not going to have a country anymore,” and “[W]e’re going to try to and give [weak Republicans] the kind of pride and boldness that they need to take back our country,” immediately before exhorting rally-goers to “walk down Pennsylvania Avenue,” are plausibly words of incitement not protected by the First Amendment. … It is reasonable to infer that the President would have known that some supporters viewed his invitation as a call to action …

    So, when the President said to the crowd at the end of his remarks, “We fight. We fight like hell and if you don’t fight like hell, you’re not going to have a country anymore,” moments before instructing them to march to the Capitol, the President’s speech plausibly crossed the line into unprotected territory.

    The opinion is not a decision on the merits, but in allowing the cases to go forward, it sets the stage for what could be a nightmarish trial for Trump. Trump may refuse to testify, but unlike a criminal proceeding, taking the Fifth could be used against him in a civil hearing. (Plus, in his flurry of post-presidential speeches remarking on the insurrection, he may have waived his Fifth Amendment rights or, at the very least, given plaintiffs even more statements showing he was seeking to overthrow the election.)

    Edited From:

    https://www.washingtonpost.com/opinions/2022/02/21/trump-civil-lawsuit-january-6-insurrection/

  7. Joseph Biden is an absolute failure to the United States, to Europe, and accelerated a return of a renewed Cold War post Reagan-Gorbachev. Americans in return got screwed with leftist, anarchist, woke religion bereft of any truth, spiritual depth nor longevity. This is all on Democrats, America’s new Authoritarian Marxists. Throw them all out this November for good. Republicans step up or be shown the door just as enthusiastically. Americans deserve better than the elitist GOP-DNC monopolies.

    Putin Address Takes Swipe at U.S.-Led World Order

    Recounting historical grievances, Russian president signals entrenched confrontation with the West in televised speech

    https://www.wsj.com/articles/putin-address-takes-swipe-at-u-s-led-world-order-11645485419

  8. Judge Finds That Trump Sent Thousands To Capitol For Purposes Of Disrupting Certification

    In a 112-page opinion, District Court Judge Amit P. Mehta wrote:

    Trump repeatedly tweeted false claims of election fraud and corruption, contacted state and local officials to overturn election results, and urged the Vice President to send Electoral ballots back for recertification. The President communicated directly with his supporters, inviting them to Washington, D.C., to a rally on January 6, the day of the Certification, telling them it would be “wild.” He directly participated in the rally’s planning, and his campaign funded the rally with millions of dollars. At the rally itself, the President gave a rousing speech in which he repeated the false narrative of a stolen election. The crowd responded by chanting and screaming, “Storm the Capitol,” “Invade the Capitol,” “Take the Capitol right now,” and “Fight for Trump.” Still, the President ended his speech by telling the crowd that “we fight like hell and if you don’t fight like hell, you’re not going to have a country anymore.” Almost immediately after these words, he called on rally-goers to march to the Capitol to give “pride and boldness” to reluctant lawmakers “to take back our country.” Importantly, it was the President and his campaign’s idea to send thousands to the Capitol while the Certification was underway. It was not a planned part of the rally. In fact, the permit expressly stated that it did “not authorize a march from the Ellipse.” From these alleged facts, it is at least plausible to infer that, when he called on rally-goers to march to the Capitol, the President did so with the goal of disrupting lawmakers’ efforts to certify the Electoral College votes.

    Focusing on the number of times Trump used “we” in his address to the mob, Mehta held that this “implies that the President and rally-goers were acting together towards a common goal.” That, he wrote, “is the essence of a civil conspiracy.”

    Edited From:

    https://www.washingtonpost.com/opinions/2022/02/21/trump-civil-lawsuit-january-6-insurrection/

    1. I hope everyone realizes that this poster isn’t being honest. This is a Jennifer Rubin opinion, and she hates Trump and hasn’t been honest herself.

      The accurate title for this article is: “Opinion: Trump’s legal problems are about to get a whole lot worse
      Jennifer Rubin” NOT “Judge Finds That Trump Sent Thousands To Capitol For Purposes Of Disrupting Certification ”

      I don’t think this joker is being paid to mislead, but that is what he does. The false title of the piece is intentionally dishonest, something even Jennifer Rubin smartly stayed away from.

      We all know who this guy is. He’s been lying around here forever.

  9. Everything Putin does is done with an attitude of “What are you going to do about it?” NATO can play that game, too. Why not just bomb the Russian tanks? Have they forgotten how to? The tanks seem like such big, easy targets. If these tanks are the problem, then bomb the tanks, problem solved. After NATO bombs the tanks, Putin can be asked “What are you going to do about it?” NATO shouldn’t fear what Putin might do, Putin should fear what NATO might do.

  10. Ruling Rejects Trump’s Claim Executive Immunity

    Judge Mehta flat-out rejected Trump’s absurd claim that he was acting in his executive capacity in trying to throw out the results of the 2020 election. Trump was able to contest the election through litigation, but the insurrection was Trump’s last resort after his campaign lost more than 60 court battles challenging the results. Furthermore, Mehta wrote, Trump does not gain immunity simply because his actions touched on “matters of public concern.” The court also rejected the notion that because Trump was acquitted in his impeachment trial he gets absolution from civil cases.

    Second, Mehta held that congressional plaintiffs have standing to sue since they are indisputably “officers” within the meaning of the statute. Trump tried to prevent members of Congress from carrying out their duties regarding the tabulation of electoral college votes; therefore, they can sue. Mehta also found that the plaintiffs properly set forth a claim of conspiracy to prevent Congress from performing its duties by “force, intimidation, or threat.”

    Edited From:

    https://www.washingtonpost.com/opinions/2022/02/21/trump-civil-lawsuit-january-6-insurrection/

    1. If only you could get things right and use the correct words. Where did Mehta accuse Trump of insurrection?

      1. Anonymous,

        From Above:

        Mehta also found that the plaintiffs properly set forth a claim of conspiracy to prevent Congress from performing its duties by “force, intimidation, or threat.”
        …………………………………

        That sounds a lot like insurrection!

        1. What sounds like insurrection to you isn’t insurrection. Your mind is cloudy, so one cannot take what you say as sensible words coming from a serious poster. One has to assume that you got things wrong.

        2. Mehta also found that the plaintiffs properly set forth a claim of conspiracy to prevent Congress from performing its duties by “force, intimidation, or threat.”

          That’s impossible. It’s a civil lawsuit, and that’s not a tort.

  11. NATO can still help Ukraine simply because it needs to be done. NATO helped Libya when it wasn’t a NATO member. Article 5 states what members MUST do. It doesn’t state that they must never help non-NATO members. They can go above and beyond Article 5 at their own discretion if they believe it is the right thing to do. It’s irrational to tie their hands with Article 5 when the letter of the charter doesn’t even do that. It’s in NATOs interest to help Ukraine if they would like to have Ukraine as a future member.

  12. So Russia now starts a war with Ukraine under the guise of “protection” in the eastern portion. An invasion, to be met by limited sanctions from the USA and the EU.

    Do you actually think that Putin will stop short of gobbling all of Ukraine?

    1. David: “Do you actually think that Putin will stop short of gobbling all of Ukraine?”

      +++

      Hitler gobbled up the rest of Czechoslovakia without a murmur after Chamberlain caved on the Sudetenland so history suggests Putin may exploit similar Western weakness and few leaders have looked weaker than Biden.

      1. Besides, I am unsure our military can fight well. We have poofs at the upper positions and resentful troops in the ranks. Who wants to lose his life in battle to protect the graft of the Biden familia?

        Notice how our ships keep colliding with things, for example? They have their pronouns straight but not their navigation or lookouts.

  13. The rape of Ukraine will be like the rape of Nanking. Instead of rushing in to stop the rape, everyone just wrings their hands and says “isn’t that just awful?”

  14. Lawsuits Based On Ku Klux Klan Act Of 1871

    In a 112-page opinion by District Court Judge Amit P. Mehta, the language was devastating for Trump. “The first ever presidential transfer of power marred by violence was over,” the court explained. “These cases concern who, if anyone, should be held civilly liable for the events of January 6th.”

    The lawsuits make use of the Ku Klux Klan Act of 1871, which was originally aimed at White vigilantes who “conspire to prevent, by force, intimidation, or threat, any person from accepting or holding any office, trust, or place of confidence under the United States, or from discharging any duties thereof.”

    Mehta wrote that this allows people to sue who are harmed by violent conspiracies that “prevent federal officers from discharging their duties or accepting or holding office their duties or accepting or holding office.” Trump sought to dismiss the suits, but Mehta refused, making several critical findings.

    Edited From:

    https://www.washingtonpost.com/opinions/2022/02/21/trump-civil-lawsuit-january-6-insurrection/

  15. Biden must be holding his lowered head in wonder. Trump toke Putin’s natural gas sales to Germany away and Biden gave them back. This is the thanks he gets. Joe says to Putin, “I gave you your money back so you could buy more war toys and now you are making me look bad.” “It’s all right, slap me again cause I like it. Is it ok if I send the Ukrainians some more blankets?”

  16. I received a phone call from the police that today would be the day that a burglar would burglarize my home. Sure enough, it was! Thank you for the heads up, police!

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