A federal judge on Friday refused to dismiss lawsuits against Donald Trump, rejecting the president’s legal team’s argument that there was no way he incited violence when he told people the 2020 election was stolen, called them to a mass demonstration in Washington, and then exhorted them to “flight like hell” in defense of the country.
Trump faces lawsuits attempting to hold him accountable for the Jan. 6 violence, arguing that his actions in the run-up to the deadly riot make him partly responsible. Of the three civil lawsuits, two are brought by Democratic members of Congress and the other from Capitol police officers who were attacked and injured by supporters of the ex-president.
The ruling is expected to be appealed, but for now it allows the lawsuits to go forward.
Among the issues in the judge’s ruling was whether Trump’s rally speech was protected by the First Amendment, with the judge concluding there was reason to believe that some of it fell outside the category of protected speech. “Having considered the President’s January 6 Rally Speech in its entirety and in context, the court concludes that he President’s statements… are plausibly words of incitement not protected by the First Amendment,” wrote Judge Amit Mehta of the Washington, D.C. District Court. “It is plausible that those words were implicitly ‘directed to inciting or producing imminent lawless action and [were] likely to produce such action,'” he explained, citing Brandenburg v. Ohio, the 1969 Supreme Court case that established this threshold.
In his speech, Trump encouraged his supporters to “fight like hell,” warning them that if they didn’t, they are “not going to have a country anymore.” Mehta notes that based on all that had happened prior to Trump’s speech, “it is reasonable to infer that he would have known that some in the audience were prepared for violence” when he stepped to the podium.
udge: Trump's J6 speech can be incitement: "there is no safe haven . . . for the strategic speaker who does not directly and unequivocally advocate for imminent violence or lawlessness, but does so through unmistakable suggestion and persuasion." https://t.co/9Vv8y6aiJT pic.twitter.com/tm7HfG7u2z
— Roger Parloff (@rparloff) February 18, 2022
In the 112-page ruling, Mehta acknowledges Trump’s pre-rally comment that he expected attendees “to peacefully and patriotically make your voices heard.” However, he writes, this “cannot inoculate him against the conclusion that his exhortation, made nearly an hour later, to ‘fight like hell’… was not protected expression.” Mehta also criticized Trump for trying to defend himself by bringing up comments made by Democrats. This “game of what-aboutism,” he notes — and which any reasonable person knows — is useless and irrelevant.
From here, the lawsuits could move to the evidence-gathering phase before a potential trial.
“To deny a President immunity from civil damages is no small step,” Mehta wrote. “The court well understands the gravity of its decision. But the alleged facts of this case are without precedent.”