Content Regulation / Censorship, Freedom of Association and Assembly / Protests, Hate Speech, Political Expression
Brandenburg v. Ohio
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The United States district court for the district of Columbia ruled that “only in the most extraordinary circumstances could a court not recognize that the First Amendment protects a president’s speech”, and that “even Presidents could not avoid liability for speech that falls outside the expansive reach of the First Amendment.” The court was tasked with determining the civil liability of individuals involved in the January 6, 2021 events in the U.S. Capitol building. The plaintiffs were eleven members of the House of Representatives and two capitol police officers. Among the defendants were former president Donald Trump, his son Donald J. Trump Jr., his counsel Rudolph W. Giuliani, as well as various organized militia groups, and the leader of one these groups – the Proud Boys – Enrique Tarrio. The main reliance was placed on 42 U.S.C. § 1985(1), also known as the Ku Klux Klan Act of 1871, which was aimed at eliminating extra-legal violence committed by white supremacist and vigilante groups as well proscribing conspiracies that, by means of force, intimidation, or threats, prevent federal officers from discharging their duties or accepting or holding office. Former president Trump contended absolute immunity since his alleged conduct fell within the “outer perimeter” of his official presidential responsibilities and asserted that his alleged actions involved speech on matters of public concern and therefore were well within the President’s duties. The court denied former president Trump’s motion to dismiss on the grounds that the tweets leading up to the January 6 rally and the words spoken by the former president reflect an electoral purpose, not speech in furtherance of any official duty, therefore not falling under the president’s immunity from damages liability predicated on his official acts. The Court then found in the former president’s January 6 speech ‘an implicit call for imminent violence or lawlessness’, in application of the Brandenburg test. The court also denied the Oath Keepers’ and Tarrio’s motions to dismiss finding them liable for the riots, while the other defendants were held not liable. The court analyzed the Brandenburg case and concluded that the key to the Brandenburg exception was incitement, in other terms whether the speech “is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” The court stated that in making the requisite evaluation, both the words spoken and the context play a decisive role.
The plaintiffs were eleven members of the House of Representatives and two capitol police officers. The defendants were former president Donald Trump, his son Donald J. Trump Jr., his counsel Rudolph W. Giuliani, Representative Mo Brooks, and various organized militia groups – the Proud Boys, Oath Keepers, and Warboys – as well as the leader of the Proud Boys, Enrique Tarrio. (P. 1) The plaintiffs claimed that, before and on January 6, 2021, defendants conspired to prevent members of congress from discharging their duties in connection with the certification of the electoral college vote and to prevent President-elect Joseph R. Biden and Vice President–elect Kamala D. Harris from accepting or holding their offices by force, intimidation, and threats.
On January 6, 2021, thousands of supporters of former president Donald J. Trump arrived at the U.S. capitol building where a joint session of Congress was convened for the certification of electoral college vote [p. 2]. Former president Donald J. Trump gave a 75-minute speech calling on his already incited supporters to “fight like hell” and “walk down Pennsylvania Avenue”. After the rioters had entered the Capitol, former president Trump sent a tweet critical of the Vice President for lacking “the courage to do what should have been done to protect our Country and our Constitution” [p. 12]. The plaintiffs alleged that Trump’s January 6 rally speech incited his supporters to commit imminent acts of violence and lawlessness at the Capitol [p. 4].
The plaintiffs also alleged that before January 6, former president Trump and his allies purposely sowed seeds of doubt about the validity of the presidential election and promoted or condoned acts of violence by the then president’s followers in an attempt to overturn the November 2020 presidential election. Those efforts culminated on January 6, when Trump’s supporters attacked the Capitol building. The events led to death of five people, physical and emotional injuries as well as abuse to police officers and damage to the Capitol building itself [p. 3].
Later on, the House of Representatives passed a single Article of Impeachment accusing President Trump of “inciting an insurrection”, but the Senate acquitted him after he left office [p. 13].
Justice Amit P. Mehta of the United States District Court of Columbia presided over this case. The central issue for consideration was the civil liability of the defendants in the events that transpired on January 6, 2021 in the Capitol building, and whether former president Trump enjoyed “absolute immunity” from the suit and consequently whether his January 6 speech was protected under the First Amendment.
First Amendment Defense by Donald Trump
While examining the First Amendment defense taken by former president Trump, the court observed that “first amendment grants all citizens expansive protection in what they can say, but that protection must be particularly guarded when it comes to the president of the United States.” The court also stated that a President’s speech can be left unprotected under the First Amendment only in the most extraordinary circumstances. Yet, even presidents cannot avoid liability for speech falling outside the wide ambit of the First amendment. The court found that the president was not shielded by the First amendment from the liability in the present matter [p. 80, 81].
The court revisited certain principles of the First amendment’s protection of speech on matters of public concern and reiterated that “expression on public issues has always rested on the highest rung of the hierarchy of first amendment values.” The court also stated that the First amendment embodies the “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open” [p. 81. However, the court also expounded that protection for speech on matters of public concern is decidedly capacious, but is not unbounded.
While analyzing the factual allegations in hand, the court stated that, “when liability is based in part on ‘a public address which predominantly contained highly charged political rhetoric’, the court must approach this suggested basis of liability with extreme care. Such care extends even to cases in which the allegation is that speech produced violence.” The court quoted McKesson v. Doe stating that “when violence occurs during activity protected by the First Amendment, that provision mandates ‘precision of regulation’ with respect to ‘the grounds that may give rise to damages liability’ as well as the persons who may be held accountable for those damages” [p. 82].
The plaintiffs’ allegations can be narrowed down to two instances: 1) The President participated in an unlawful conspiracy, and 2) the President’s January 6 rally speech incited violence [p. 82]. The court, however, stated that speech on matters of public concern can be protected even if it is part of a concerted violation of law [p. 83]. The court observed that President Trump’s speech could not be labelled unprotected only for allegedly being a part of a conspiratorial agreement to violate a civil statute. Instead, because his speech was on a matter of public concern, it could lose its First Amendment protection only if it met the stringent Brandenburg “incitement” standard [p. 84].
In defense of the words he spoke, former president Trump advanced three arguments. First, he contended that the Plaintiffs’ attempt to fit his speech in the Brandenburg box improperly relied on how its receivers interpreted the speech rather than his actual words. The President further defended his statements by focusing on the fact that when he first alluded to marching to the Capitol, he said he expected rally-goers “to peacefully and patriotically make your voices heard.” President Trump also cited fiery speeches from Democratic legislators, which he contended would not be protected speech if the court were to find that his speech was not. The court found no utility in such comparators as each case must be evaluated on its own merits. The court, however, agreed with the conclusion that a speaker only in the rarest of circumstances should be held liable for political speech [p. 95-96].
The court relied on the trio of Supreme Court cases Brandenburg v. Ohio, 395 U.S. 444, (1969), Hess v. State of Indiana, 414 U.S. 105, 105-106 (1973) NAACP v. Claiborne Hardware Co., 458 U.S. 886, 913 (1982) to summarize the incitement exception to the First Amendment [p. 85] which requires proof that “(1) the speaker subjectively intended incitement, (2) in context, the words used were likely to produce incitement, lawless action, and (3) the words used by the speaker objectively encouraged, urged and provoked imminent action” [p. 87]. The court noted that the Brandenburg test precludes speech from being sanctioned as incitement to riot unless “(1) the speech explicitly or implicitly encouraged the use of violence or lawless action, (2) the speaker intends the speech will result in the use of violence or lawless action, and (3) the imminent use of violence or lawless action is the likely result of his speech” [p. 88]. The court concluded that the key to the Brandenburg exception is incitement: whether the speech “is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” The court also stated that in making that evaluation, both the words spoken and the context in which they are spoken matter [p. 88].
The court then gauged President Trump’s 75-minute speech under Brandenburg [p. 89], observing that the President’s words on January 6th did not explicitly encourage the imminent use of violence or lawless action. However, having considered the President’s Rally Speech in its entirety and in context, the court concluded that the President’s statements that, “We fight. We fight like hell and if you don’t fight like hell, you’re not going to have a country anymore,” and “We’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,” were words of incitement not protected by the First Amendment. The court opined that those words were implicitly “directed to inciting or producing imminent lawless action and were likely to produce such action.” The court further held that ‘the ‘import’ of the President’s words must be viewed “within the broader context in which the Speech was made and against the Speech as a whole”. Before January 6, as the court opined, “the President and others had created an air of distrust and anger among his supporters by creating the false narrative that the election literally was stolen from underneath their preferred candidate by fraud and corruption.” The court analyzed the facts and observed that “some of his supporters’ beliefs turned to action. The President invited his followers to Washington, D.C., on January 6th. It is reasonable to infer that the President would have known that some supporters viewed his invitation as a call to action” [p. 93].
The court further observed that the prospect of violence had become so likely that a former aide to the President predicted in a widely publicized statement that “there will be violence on January 6th because the President himself encourages it.” Thus, the court observed, when the President stepped to the podium on January 6th, it was reasonable to infer for him to have known that some in the audience were prepared for violence [p. 94]. Moreover, the court observed that “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.” These words, the court opined, were, “speech… brigaded with action” [p. 94 & 95].
Giuliani, Trump Jr. and Oath Keepers’ liability
While distinguishing the case of Giuliani’s and Trump Jr.’s words as protected speech, the court stated that their words lacked an implicit call for imminent violence or lawlessness which were very much present in Trump’s speech. He called his supporters “to fight like hell” and directed a march to the Capitol, that was beyond the scope of permission granted, knowing that militia groups and others among the crowd were prone to violence [p. 96]. The court held that Brandenburg’s stringent imminence requirement was satisfied by the President’s words and were beyond the already high bar protecting political speech [p. 97]. With regard to Giuliani’s words, the court found them to be at most “advocacy of illegal action at some indefinite future time” [p. 98]. As to the Oath Keepers’ contention that the claim against them must be dismissed because their alleged acts were protected speech, assembly, and petitioning, the court stated that the Oath Keepers are alleged to have acted violently by breaching the Capitol building, and that the first amendment does not protect violence. The court also took judicial notice that ten members of the Oath Keepers, including its leader, have been charged with seditious conspiracy [p. 98].
Political Question Doctrine
President Trump further raised a related jurisdictional argument that these cases presented a non-justiciable political question. The political question doctrine removes from the purview of the courts cases that “revolve around policy choices and value determinations constitutionally committed for resolution to the halls of Congress or the confines of the Executive Branch.” The court stated that the President’s actions leading up to the riot at the Capitol building were not undertaken in his official capacity. To that extent, these cases implicate no policy choice or value determination committed to the Executive Branch [p. 42]. The court disagreed with the President’s opinion that any suit touching on Presidential Speech gave rise to a political question because the Constitution says nothing about a President’s speech. Moreover, the Supreme Court had never held that just because a case involved review of a President’s claimed exercise of his general Article II executive powers it becomes nonjusticiable. President Trump also argued that adjudicating these cases would force the court “to make a value determination about what is or is not proper for the President to say during a political speech when advocating for governmental action.” The court observed that an adjudication of a political speech might involve a “judgment” of the President’s speech, but that has never been enough, by itself, to trigger the political question doctrine’s jurisdictional bar. A suit, the court stated, against the President often has political overtones, but courts cannot avoid their responsibility merely because the issues have political implications. President Trump also suggested that the court in conducting a review of the impeachment proceedings showed disrespect for a co-equal branch. The court held that it is concerned with the President’s potential civil liability for the events of January 6 and the mere fact that these cases and the impeachment proceedings pertain to the same subject matter does not implicate the political question doctrine [p. 42, 43, 44]
Absolute Immunity Defense
Former president Trump, while placing reliance on Nixon v. Fitzgerald, 457 U.S. 731 (1982) contended to be absolutely immune from damages liability in all three cases since his alleged conduct fell within the “outer perimeter” of his official presidential responsibilities and thus claimed absolute Presidential immunity [p. 23]. Trump asserted that his alleged actions all involved speech on matters of public concern and therefore were well within the President’s duties. He contended that “it is enough that the nature of the activity, a speech by the President, is the type of activity normal and customary to the presidency.” Herein, the Courts agreed with the former President in two respects: first, speech was unquestionably a critical function of the presidency, and second, his pre-January 6 tweets and the January 6 rally speech addressed matters of public concern. The court also observed that whatever one thinks of the President’s views on those subjects, they plainly were matters of public concern. However, the court found such contentions insufficient to answer the question at hand. The question being, were the former President’s words uttered in performance of official acts, or were his words express is some other, unofficial capacity. The President’s response to this was “whenever and wherever a President speaks on a matter of public concern he is immune from civil suit”. Such a view in the court’s opinion went too far and ‘blanket immunity cannot shield a President from suit merely because his words touch on mattes of public concern. The context in which those words are spoken and what is said matter’ [p. 32, 33, 34].
The plaintiffs, with regard to this issue stated that the claim of absolute immunity should be rejected for two reasons: (1) the former president was acting solely in his personal capacity as a candidate. To this the court observed that the line between President and candidate will not always be clear. (2) the former president engaged in serious misconduct that obstructed a co-equal branch of government, removing his actions from the outer bounds of permissible presidential conduct.
Instead of applying the parties’ proffered categorical rules to the immunity question, the court found that the better course would be to evaluate the defence on the specific facts alleged and based on those facts, determine whether President Trump’s words were spoken in furtherance of a presidential function. The court applied the principle that in evaluating a presidential claim of absolute immunity the court must consider the relationship of the challenged conduct to the claimed corresponding function of the President [p. 36, 37].
After identifying these principles, the Court went on to analyze the alleged conduct of the former President. The court focused on the tweets which criticized State officials for not doing enough to enable him to prevail in their States. Trump also directly contacted local election officials and State Legislators to allegedly pressure them to overturn their election results. Trump also filed multiple lawsuits in jurisdictions in which he did not prevail. The former president also tweeted regarding rallies that occurred in Washington, D.C., in November and December 2020. The court concluded that the suits, tweets and direct outreach to State election officials, were not official acts and that such tweets were issued to help him win. The tweets did not advocate any policy changes or legislation. Rather, they expressly stated or implied that the rallies would help him remain President [p. 37, 38].
The court also found that the planning for the January 6 rally did not involve official duties as those took place largely through President Trump’s campaign organization. President Trump also allegedly participated directly in the planning. Moreover, President Trump and his campaign proposed that the rally include a march to the Capitol even though the permit they had obtained did not allow for one. With regard to the January 6 rally Speech the court was of the opinion that while the speech did touch on matters of public concern, the main thrust of the Speech was not focused on policy or legislation. It was to complain about perceived cases of election fraud that led President-elect Biden to win more votes in closely contested states, to urge members of Congress to object to certain state certifications, and to exhort the Vice-President to return those certifications to those states to be recertified. The court also observed that the words spoken by the President, without delving into the motivation behind them, reflected an electoral purpose, not speech in furtherance of any official duty [p. 39].
With regard to denying a President immunity from civil damages, the court stated that the President’s actions did not relate to his duties of faithfully executing the law, conducting foreign affairs, commanding the armed forces, or managing the Executive Branch. They entirely concerned his efforts to remain in office for a second term. These were unofficial acts, so the separation of powers concerns that justify the President’s broad immunity were absent [p. 40].
Conclusively, Guiliani’s and Trump Jr.’s motions to dismiss were granted and the motions to dismiss of President Trump, the Oath Keepers, and Tarrio were denied. The Plaintiffs’ claim as against President Trump were granted for the following claims: (1) the § 1985(1) claim (Count 1 and 7) (2) the negligence per se claims (Counts 3 and 4) (3) violation of the District of Columbia’s anti-bias law (Count 5), and (4) directing/aiding and abetting assault (Count 1, 2 & 8) (5) Violations of public safety statutes (i.e., negligence per se) (Counts 4 & 5).
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The court affirmed that when speaking on matters of public concern, the president’s words are shielded from damages liability. Concurrently, applying the Brandenburg test, the court declared that speech containing incitement to violence, either explicit or implicit, even when uttered by the president, falls outside the expansive protection guaranteed under the First Amendment rights. The court also declared that the president enjoyed no immunity for unofficial conduct performed outside the perimeter of his official prerogatives.
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