Kashiya Nwanguma; Molly Shah; Henry Brousseau, Plaintiffs-Appellees,
Donald J. Trump; Donald J. Trump for President, Inc., Defendants-Appellants.
Argued: June 6, 2018
from the United States District Court for the Western
District of Kentucky at Louisville. No. 3:16-cv-00247-David
J. Hale, District Judge.
Michael A. Carvin, JONES DAY, Washington, D.C., for
J. Canon, DANIEL J. CANON, PSC, Louisville, Kentucky, for
Michael A. Carvin, Anthony J. Dick, Andrew J. M. Bentz, Vivek
Suri, JONES DAY, Washington, D.C., for Appellants.
Gregory A. Belzley, BELZLEYBATHURST ATTORNEYS, Prospect,
Kentucky, David N. Ward, CLAY DANIEL WALTON & ADAMS, PLC,
Louisville, Kentucky, for Appellees.
Greenbaum, LAWYERS' COMMITTEE FOR CIVIL RIGHTS UNDER LAW,
Washington, D.C., for Amicus Curiae.
Before: McKEAGUE, GRIFFIN and WHITE, Circuit Judges.
McKEAGUE, CIRCUIT JUDGE.
participated in a Trump for President campaign rally in
Louisville in March 2016 . . . with the purpose of
protesting. Perceived to be disruptive, they were
unceremoniously ushered out after then-candidate Donald J.
Trump said, "Get 'em out of here." Plaintiffs
were pushed and shoved by members of the audience as they
made their exit and now seek damages from Trump alleging his
actions amounted to "inciting to riot," a
misdemeanor under Kentucky law. The district court denied
Trump's motion to dismiss the claim but certified its
order for immediate interlocutory appeal. The court
identified a two-part question for review: whether plaintiffs
have stated a valid claim under Kentucky law and, if so,
whether the First Amendment immunizes Trump from punishment
under state law. We answer "no" to the first part,
because plaintiffs' allegations do not satisfy the
required elements of "incitement to riot." As to
the second part, we hold "yes," Trump's speech
enjoys First Amendment protection, because he did not
specifically advocate imminent lawless action. The district
court's denial of Trump's motion to dismiss the claim
must therefore be reversed.
March 1, 2016, a campaign rally was conducted at the Kentucky
International Convention Center in Louisville. The rally was
organized by defendant Donald J. Trump for President, Inc.
("the Trump campaign"), a Virginia corporation.
During the rally, then-presidential candidate Donald J.
Trump, a resident of New York, spoke for approximately 35
minutes. Plaintiffs in this action, Kashiya Nwanguma, Molly
Shah and Henry Brousseau, all residents of Kentucky, attended
the rally with the intention of peacefully protesting.
Protesters' actions during Mr. Trump's address
precipitated directions from Trump on five different
occasions to "get 'em out of here." R. 1-1,
Complaint at ¶ 32, Page ID 10. In response, members of
the audience assaulted, pushed and shoved plaintiffs, and
Brousseau was punched in the stomach. Defendants Matthew
Heimbach and Alvin Bamberger, Ohio residents and Trump
supporters, were in the audience during the rally. They
participated in the assaults on plaintiffs.
than two months later, plaintiffs filed their complaint in
the Jefferson Circuit Court in Louisville, naming Trump, the
Trump campaign, Heimbach, Bamberger, and an unknown woman who
punched Brousseau as defendants. The complaint sets forth
state law tort claims for battery, assault, incitement to
riot, as well as negligence, gross negligence and
recklessness. The Trump defendants immediately removed the
action to federal court based on the parties' diversity
of citizenship. They then moved to dismiss the claims against
them for failure to state claims upon which relief can be
granted. Fed.R.Civ.P. 12(b)(6).
district court granted the motion in part and denied it in
part. Nwanguma v. Trump, 273 F.Supp.3d 719 (W.D. Ky.
2017). The court dismissed claims against the Trump
defendants alleging they were vicariously liable for the
assaultive actions of Heimbach, Bamberger and the unknown
woman. The court reasoned that plaintiffs' allegations
were insufficient to state a plausible claim that these
individual defendants acted as agents of the Trump
defendants. The court refused to dismiss the
incitement-to-riot and negligence claims. In a later
decision, however, the district court revisited and reversed
its decision on the negligence claim against the Trump
defendants. The court concluded that plaintiffs'
negligent-speech theory was "incompatible with the First
Amendment." In the same order, the court also certified
its order denying dismissal of the incitement-to-riot claim
as appropriate for immediate appeal under 28 U.S.C. §
1292(b). A panel of this court granted the Trump
defendants' ensuing petition for leave to appeal. In
re Donald J. Trump, 874 F.3d 948 (6th Cir. 2017). Hence,
the viability of the incitement-to-riot claim is the sole
focus of this interlocutory appeal.