Part 5 of 6
To sum up, the court holds that Plaintiffs have successfully pleaded a § 1985(1) conspiracy claim against President Trump, the Oath Keepers, and Tarrio. They have fallen short as to Giuliani and Trump Jr.
C. Failure to State a § 1986 ClaimThe court already has held that President Trump is immune from suit as to Swalwell’s § 1986 claim. The question remains whether Swalwell has stated such a claim against the other defendants, Giuliani and Trump Jr. He has not.
Recall, § 1986 provides a cause of action against anyone who has “knowledge that any of the wrongs conspired to be done, and mentioned in section 1985 of this title, are about to be committed, and having the power to prevent or aid in preventing the commission of the same, neglects or refuses so to do.” 42 U.S.C. § 1986. Thus, if Giuliani or Trump Jr. “knew of a [§ 1985(1)] conspiracy, were in a position to prevent the implementation of that conspiracy, and neglected or refused to prevent it, they are liable under § 1986.” Park v. City of Atlanta, 120 F.3d 1157, 1160 (11th Cir. 1997). Swalwell’s pleading falls short in two respects. First, it fails to plead sufficient facts establishing that Giuliani or Trump Jr. knew of a tacit plan to prevent members of Congress from discharging their duties. The Complaint does not, for example, allege either was involved in the planning of the January 6 Rally or knew in advance that the President would call on rally-goers, including organized groups, to march on the Capitol while Congress was in session. Second, it does not allege that Giuliani or Trump Jr. had the “power” to prevent such conspiracy. Few courts appear to have addressed this element, but those finding the requisite power to be present have done so where the defendant was a government official or employee with some formal authority to act. See, e.g., Peck v. United States, 470 F. Supp. 1003, 1013 (S.D.N.Y. 1979) (FBI agents); Santiago v. City of Philadelphia, 435 F. Supp. 136, 156 (E.D. Pa. 1977) (mayor and city managing director who had “some authority, though limited, to control policies and practices”), abrogated on other grounds by Chowdhury v. Reading Hosp. & Med. Ctr., 677 F.2d 317 (3d Cir. 1982). Giuliani and Trump Jr., as personal lawyer to the President and the President’s son, respectively, evidently do not so qualify. Swalwell’s Complaint thus fails to plead a § 1986 claim against Giuliani and Trump Jr.
D. The First Amendment DefenseThe court thus far has held that President Trump is not immune from suit as to Plaintiffs’ § 1985(1) claim and that Plaintiffs have successfully pleaded such claim against him. The question remains, however, whether that claim (and others) can move forward when, as here, the President’s alleged conspiratorial acts are predicated entirely on his speech. This is a substantial constitutional question. The First Amendment grants all citizens expansive protections in what they can say, but that protection must be particularly guarded when it comes to the President of the United States. As the Supreme Court has repeatedly reminded, a President’s position in our system of government is unique and his duties and responsibilities “are of unrivaled gravity and breadth.” Vance, 140 S. Ct. at 2425. A President could not function effectively if there were a risk that routine speech might hale him into court. Only in the most extraordinary circumstances could a court not recognize that the First Amendment protects a President’s speech. But the court believes this is that case. Even Presidents cannot avoid liability for speech that falls outside the expansive reach of the First Amendment. The court finds that in this one-of-a-kind case the First Amendment does not shield the President from liability.
1. The First Amendment and Speech on Matters of Public ConcernThe Supreme Court has spoken in soaring terms about the First Amendment’s protection of speech on matters of public concern. “Expression on public issues ‘has always rested on the highest rung of the hierarchy of First Amendment values.’” NAACP v. Claiborne Hardware Co., 458 U.S. 886, 913 (1982) (citation omitted). “[S]peech concerning public affairs is more than self-expression; it is the essence of self-government.” Garrison v. Louisiana, 379 U.S. 64, 74–75 (1964). The First Amendment embodies our “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open.” New York Times Co., 376 U.S. at 270. Such speech may “well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.” Id. “Strong and effective extemporaneous rhetoric cannot be nicely channeled in purely dulcet phrases. An advocate must be free to stimulate his audience with spontaneous and emotional appeals for unity and action in a common cause.” Claiborne Hardware, 458 U.S. at 928.
Protection for speech on matters of public concern is decidedly capacious, but it is not unbounded. “The presence of protected activity . . . does not end the relevant constitutional inquiry. Governmental regulation that has an incidental effect on First Amendment freedoms may be justified in certain narrowly defined instances.” Id. at 912. But when considering liability in such “narrowly defined instances,” courts must tread carefully. When, as here, 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.” Id. at 926–27. Such care extends even when, as in this case, the allegation is that speech produced violence. “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.’” McKesson v. Doe, 141 S. Ct. 48, 50 (2020) (quoting Claiborne Hardware, 458 U.S. at 916–17).
Thus, the court’s task here is to determine whether a “narrowly defined instance” applies to President Trump’s speech such that he “may be held accountable” for the damages it may have caused. Plaintiffs here advance two such “narrowly defined instances”: (1) the President participated in an unlawful conspiracy and (2) the President’s January 6 Rally Speech incited violence. Thompson Pls.’ Opp’n at 49–56; Swalwell Opp’n at 18–19; Blassingame Pls.’ Opp’n at 36–39. The court considers in turn each of these grounds for denying President Trump’s speech First Amendment protection.
a. Participation in an unlawful conspiracy Plaintiffs say that “conspiratorial statements and agreements in furtherance of unlawful actions are not protected by the First Amendment.” Thompson Pls.’ Opp’n at 50. They cite various cases for various propositions, including that the First Amendment does not authorize “knowing association with a conspiracy,” id. at 50 (quoting Scales v. United States, 367 U.S. 203, 229 (1961)); it does not confer a right to “impede or obstruct” a government employee’s “performance of duty by threats,” id (quoting United States v. Varani, 435 F.2d 758, 762 (6th Cir. 1970)); it does not protect “speech integral to criminal conduct,” Blassingame Pls.’ Opp’n at 18 (quoting United States v. Alvarez, 567 U.S. 709, 717 (2012)); and it does not “immunize[] [speech] from regulation when [ it] is used as an integral part of conduct which violates a valid statute,” id. at 18–19 (quoting Cal. Motor Transp. Co. v. Trucking Unlimited, 404 U.S. 508, 514 (1972)).
But the court finds these broad-stroke principles inapt here. For one, cases like Scales, Varani, and Alvarez involve criminal conspiracies, which the Supreme Court seems to have put in its own category. Plaintiffs sometimes suggest that the President engaged in criminal conduct, but what is before the court is a civil conspiracy, and it would be imprudent for the court to assess whether factual allegations in a civil complaint make out criminal conduct. Even the low probable-cause standard is higher than Rule 8’s plausibility standard. Other cases, like California Motor Transport, arise in the context of economic regulation, involving, for example, statutes barring monopolization or concerted activity, where the speech at issue usually is not on matters of public concern. Speech used to facilitate the fixing of prices or the manipulation of markets is naturally afforded less First Amendment protection than a presidential speech on a matter of public concern.
Speech on matters of public concern may even be protected if it is part of a concerted violation of law. That is the lesson of the Supreme Court’s decision in Claiborne Hardware. There, Mississippi state courts had found the NAACP; its state field secretary, Charles Evers; and others liable for losses incurred by white merchants as a result of a boycott—a kind of civil conspiracy—that violated state law “on three separate conspiracy theories.” 458 U.S. at 891. Indeed, the Mississippi Supreme Court had found that the defendants “had agreed to use force, violence, and ‘threats’ to effectuate the boycott.” Id. at 895. The Supreme Court observed that the boycott was “supported by speeches and nonviolent picketing” aimed at expressing dissatisfaction with “the social structure that denied them rights to equal treatment and respect”— plainly matters of public concern. Id. at 907. The Court, in assessing the defendants’ plea for First Amendment protection, did not dismiss it out of hand merely because the defendants had conspired to violate state law. Rather, in recognition of the weighty First Amendment values at stake, the Court narrowed the scope of inquiry to whether any of the business losses were caused by speech that was not otherwise protected under the First Amendment—namely, speech that caused violence or constituted threats of violence. Id. at 916. Once the Court identified speech that might so qualify, it did not declare the speech unprotected because it was part of a conspiracy; instead, it evaluated the speech under the narrow “incitement” standard announced in Brandenburg v. Ohio, 395 U.S. 444 (1969).
The court here must follow the same path the Court did in Claiborne Hardware. President Trump’s speech cannot be deemed unprotected merely because Plaintiffs have alleged it to be part of a conspiratorial agreement to violate a civil statute. Instead, because his speech is on a matter of public concern, it will lose its First Amendment protection only if it meets the stringent Brandenburg “incitement” standard. See Tri-Corp Housing, Inc. v. Bauman, 826 F.3d 446, 449 (7th Cir. 2016) (recognizing that public officials have the right to “urge their constituents to act in particular ways . . . , as long as they refrain from making the kind of threats that the Supreme Court treats as subject to control under the approach of Brandenburg” (citation omitted)). It is to that inquiry the court now turns.
b. Brandenburg and incitement A trio of Supreme Court cases has come to define the incitement exception to the First Amendment. They are Brandenburg, Hess v. State of Indiana, and Claiborne Hardware. A brief discussion of each helps to frame the determination this court must make.
Brandenburg involved the conviction of a member of the Ku Klux Klan under Ohio’s Criminal Syndicalism statute. 395 U.S. at 444.28 Two films of the defendant were introduced at trial. One showed him among twelve hooded Klansmen, surrounding a large wooden cross, which they burned. Words uttered on the film included statements disparaging of Black and Jewish people. The defendant also said the following: “We’re not a revengent organization, but if our President, our Congress, our Supreme Court, continues to suppress the white, Caucasian race, it’s possible that there might have to be some revengeance taken. We are marching on Congress July the Fourth, four hundred thousand strong . . . .” Id. at 446. Seen on the film, and introduced into evidence, were a pistol, shotgun, and ammunition. Id. at 445–46. The second film was along the same lines. Id. at 447. The Supreme Court overturned the defendant’s conviction, finding the films to be protected speech. Articulating what is now termed the “Brandenburg test,” the Court said that “the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” Id. Thus, Brandenburg has come to stand for the proposition that “mere advocacy” of the use of force or violence is protected speech; only when speech is directed at inciting imminent lawless action, and likely to do so, does it lose the cloak of the First Amendment’s protection.
Four years later, in Hess v. State of Indiana, the Court applied Brandenburg to a defendant convicted under Indiana’s disorderly conduct statute. 414 U.S. 105, 105–06 (1973). The defendant was participating in a demonstration of between 100 and 150 people when the sheriff gave an order to clear the streets. As the sheriff passed him, Hess was standing off the street and said words to the effect of “We’ll take the fucking street later” or “We’ll take the fucking street again.” Id. at 107. Witnesses testified that Hess did not appear to be exhorting the crowd to go back into the street, was not addressing any particular person, and though loud, was no louder than anyone else in the area. Id. Applying Brandenburg, the Court overturned Hess’s conviction. The Court observed that Hess’s statement was “[a]t best, . . . counsel for present moderation, at worst, it amounted to nothing more than advocacy of illegal action at some indefinite future time.” Id. at 108. The Court said that, because Hess was not directing his statement to any person or group of persons, it could not be said he was advocating any action. Id. Also, “since there was no evidence or rational inference from the import of the language, that his words were intended to produce, and likely to produce, imminent disorder,” his words could not be punished based on the mere “tendency to lead to violence,” as the Indiana Supreme Court had held. Id. at 108–09 (citation omitted).
The last of the three cases is Claiborne Hardware, the facts of which the court already has briefly discussed. The Court evaluated Charles Evers’s speech in the context of the boycott, during which he said to several hundred people, referring to boycott violators, “If we catch any of you going in any of them racist stores, we’re gonna break your damn neck.” 458 U.S. at 902. In another speech Evers warned that “the Sheriff could not sleep with boycott violators at night,” an implicit threat to Black persons that retaliation for shopping at white establishments could come at any moment without the protection of law enforcement. Id. The Court held that the “emotionally charged rhetoric of Charles Evers’ speeches did not transcend the bounds of protected speech set forth in Brandenburg.” Id. at 928. The court acknowledged that Evers had used “strong language” and observed that if his “language had been followed by acts of violence, a substantial question would be presented whether Evers could be held liable for the consequences of that lawful conduct.” Id. However, “[w]hen such appeals do not incite lawless action, they must be regarded as protected speech.” Id. The Court also said that “[ i]f there were other evidence of his authorization of wrongful conduct, the references to discipline in the speeches could be used to corroborate that evidence.” Id. at 929. But because there was no evidence that “Evers authorized, ratified, or directly threatened acts of violence,” his words could not be used for such purpose. Id. The Court therefore vacated the damages award against Evers.
The Supreme Court has not had occasion to apply the Brandenburg test in the 40 years since Claiborne Hardware. Scholars have given it attention, but few federal appellate court decisions have applied it. The parties have not cited any D.C. Circuit case applying Brandenburg, and the court has not found one.29 One treatise has distilled Brandenburg into a three-part test, requiring proof that “(1) the speaker subjectively intended incitement; (2) in context, the words used were likely to produce imminent, lawless action; and (3) the words used by the speaker objectively encouraged and urged and provoked imminent action.” 5 RONALD D. ROTUNDA & JOHN E. NOWAK, TREATISE ON CONSTITUTIONAL LAW: SUBSTANCE AND PROCEDURE § 20.15(d), Westlaw (database updated May 2021). An en banc panel of the Sixth Circuit articulated a similar three-part test:
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.
Bible Believers v. Wayne County, 805 F.3d 228, 246 (6th Cir. 2015) (en banc). The court does not take a position on whether defining Brandenburg’s standard as a three-part test is useful, or even accurate.30 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.” Brandenburg, 395 U.S. at 447.
In making that evaluation, both the words spoken and the context in which they are spoken matter. The Supreme Court said as much in Young v. American Mini Theaters:
The question whether speech is, or is not, protected by the First Amendment often depends on the content of the speech. Thus, the line between permissible advocacy and impermissible incitation to crime or violence depends, not merely on the setting in which speech occurs, but also on exactly what the speaker had to say.
427 U.S. 50, 66 (1976). Similarly, the Court in FCC v. Pacifica Foundation observed that the
classic exposition of the proposition that both the content and the context of speech are critical elements of First Amendment analysis is Mr. Justice Holmes’ statement for the Court in Schenck v. United States[:] . . . “[T]he character of every act depends upon the circumstances in which it is done . . . . The most stringent protection of free speech would not protect a man falsely shouting fire in a theater and causing a panic . . . .”
438 U.S. 726, 744 (1978) (quoting Schenck v. United States, 249 U.S. 47, 52 (1919)).
Bearing the foregoing principles in mind, the court turns to evaluate President Trump’s speech under Brandenburg.
c. President Trump’s speech Plaintiffs do not contend that President Trump’s words prior to the January 6 Rally Speech (almost entirely through tweets) meets the Brandenburg incitement exception. They focus on the Rally Speech, so the court does, too, starting with a summary of what he said.31
The President spoke for 75 minutes. He spun a narrative in which he told those present that the election was “rigged” and “stolen,” and not just from him, but from them. He told attendees at the start that “our election victory” had been taken away, “we won this election,” and “[w]e didn’t lose.” He urged on the crowd, “We will never give up. We will never concede. It doesn’t happen. You don’t concede when there’s theft involved. . . . We will not take it anymore . . . . [W]e will ‘stop the steal.’” He said that elections in “Third World Countries” are “more honest” than the election that had just taken place. The President said all of this within the first few minutes of his remarks.
He then told the crowd what had to happen for them to “win” the election. “[ I]f Mike Pence does the right thing, we win the election.” “All Mike Pence has to do is send it back to the states to recertify, and we become president, and you are the happiest people.” And he warned what would happen if the Vice President did not act: “[W]e’re stuck with a president who lost the election by a lot, and we have to live with that for four more years. We’re not going to let that happen.”
The President identified who was to blame for the “stolen” and “rigged” election: “radical left Democrats,” “weak Republicans,” “the fake news,” and “Big tech,” among others. He specifically identified those who he thought were the “weak Republicans” who would bear responsibility for a lost election: then–Senate Majority Leader McConnell, Representative Elizabeth Cheney, and Governor Brian Kemp (calling him “one of the dumbest governors in the United States”). He accused the media of “suppressing thought” and “suppress[ ing] speech” and said it “was the enemy of the people. It’s the biggest problem we have in this country.” He told the crowd,
[W]e’re going to have to fight much harder, and Mike Pence is going to have to come through for us. And if he doesn’t, that will be a sad day for our country because you’re sworn to uphold our Constitution. Now it is time for Congress to confront this egregious assault on our democracy.
It was at this point that the President first said anything about a march to the Capitol. He said, [A]fter this, we’re going to walk down—and I’ll be there with you— we’re going to walk down to the Capitol, and we’re going to cheer on our brave senators, and congressmen and women. And we’re probably not going to be cheering so much for some of them because you’ll never take back our country with weakness. You have to show strength, and you have to be strong.
He then said, “We have come to demand that Congress do the right thing and only count the electors who have been lawfully slated, lawfully slated,” and he added that “everyone here will soon be marching to the Capitol building to peacefully and patriotically make your voices heard.”
Moments later, he focused the crowd’s attention on the Certification. Referring to the Capitol, he said,
[W]e see a very important event though, because right over there, right there, we see the event going to take place. . . . We’re going to see whether or not we have great and courageous leaders or whether or not we have leaders that should be ashamed of themselves throughout history, throughout eternity, they’ll be ashamed. And you know what? If they do the wrong thing, we should never ever forget that they did. Never forget. We should never ever forget.
The President continued, telling the crowd repeatedly that the election had been stolen. “We’ve amassed overwhelming evidence about a fake election,” he said to them. Changes in election procedure at the state level had “paved the way for fraud on a scale never seen before.” He then recited a litany of false claims about the ways in which the election had been stolen in Pennsylvania (e.g., over 200,000 more ballots cast than voters), Wisconsin (e.g., postal service workers were told to backdate 100,000 ballots), Georgia (e.g., election officials pulled “boxes . . . and suitcases of ballots out from under a table”), Arizona (e.g., 36,000 ballots were cast by noncitizens), Nevada (e.g., more than 42,000 double votes), and Michigan (e.g., thousands and thousands of ballots were improperly backdated). In the midst of reciting these examples of fraud, the President regularly alluded to what the Vice President had to do. He told rally-goers that, if Mike Pence failed to act, “You will have an illegitimate president, that’s what you’ll have. And we can’t let that happen.” He said, “I’m not hearing good stories” about the Vice President. And he again told those assembled that the election was a fraud: “this is the most fraudulent thing anybody’s—This is a criminal enterprise. This is a criminal enterprise.” And, he said that when fraud occurs “it breaks up everything, doesn’t it? What you catch somebody in a fraud, you’re allowed to go by very different rules. So I hope Mike has the courage to do what he has to do.”
In the final moments of his speech, the President spoke about the country’s future. He said he had to be “careful” in saying he was confident in our nation’s future: “If we allow this group of people to illegally take over our country, because it’s illegal when the votes are illegal, when the way they got there is illegal, when the States that vote are given false and fraudulent information.” He also warned that, because of a potential change in administration, “the [ immigrant] caravans are forming again. They want to come in again and rip off our country. Can’t let it happen.”
Finally, the President told them he suspected impropriety on election night itself: “Something’s wrong here. Something’s really wrong. Can’t have happened.” And then he said: “And we fight. We fight like hell and if you don’t fight like hell, you’re not going to have a country anymore.” Moments later, he concluded and told those assembled:
So we’re going to, we’re going to walk down Pennsylvania Avenue, I love Pennsylvania Avenue, and we’re going to the Capitol and we’re going to try and give—the Democrats are hopeless. They’re never voting for anything, not even one vote. But we’re going to try to give our Republicans, the weak ones, because the strong ones don’t need any of our help, we’re going to try and give them the kind of pride and boldness that they need to take back our country. So let’s walk down Pennsylvania Avenue.
d. Brandenburg applied to the January 6 Rally Speech The President’s words on January 6th did not explicitly encourage the imminent use of violence or lawless action, but that is not dispositive. In Hess, the Supreme Court recognized that words can implicitly encourage violence or lawlessness. In reversing Hess’s conviction, the Court held that there was “no evidence or rational inference from the import of the language” intended to produce, or likely to produce, imminent disorder. 414 U.S. at 109 (emphasis added). By considering the “import of the language,” and the “rational inferences” the words produce, the Court signaled that there is no safe haven under Brandenburg for the strategic speaker who does not directly and unequivocally advocate for imminent violence or lawlessness, but does so through unmistakable suggestion and persuasion. Federal appellate courts have understood the Brandenburg exception to reach implicit encouragement of violent acts. See, e.g., Bible Believers, 805 F.3d at 246 (inquiring as the first element whether “the speech explicitly or implicitly encouraged the use of violence or lawless action”).
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 plausible that those words were implicitly “directed to inciting or producing imminent lawless action and [were] likely to produce such action.” Brandenburg, 395 U.S. at 447.
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 6th, 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. Some of his supporters’ beliefs turned to action. In the weeks after the election, some had made threats against state election officials and others clashed with police in Washington, D.C., following pro-Trump rallies. The President would have known about these events, as they were widely publicized. Against this backdrop, 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. President Trump and his advisors “actively monitored” pro-Trump websites and social media. Thompson Compl. ¶ 66. These forums lit up in response to the rally announcement. Some supporters explicitly called for violence on January 6th (e.g., calling for “massing hangings and firing squads”). Others took direct aim at the Certification itself (e.g., stating that people in the Capitol should “leave in one of two ways: dead or certifying Trump the rightful winner”) or at law enforcement (“Cops don’t have ‘standing’ if they are laying on the ground in a pool of their own blood.”). Thompson Compl. ¶¶ 56–63; Swalwell Compl. ¶ 89; Blassingame Compl. ¶¶ 33–34. These violent posts were discussed “by media outlets regularly viewed by President Trump, including Fox News.” Thompson Compl. ¶ 66. 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.” Id. Thus, when the President stepped to the podium on January 6th, it is reasonable to infer that he would have known that some in the audience were prepared for violence.
Yet, the President delivered a speech he understood would only aggravate an already volatile situation. For 75 uninterrupted minutes, he told rally-goers that the election was “rigged” and “stolen,” at one point asserting that “Third World Countries” had more honest elections. He identified who the culprits were of the election fraud: “radical Left Democrats” and “weak” Republicans. They were the ones who had stolen their election victory, he told them. He directed them not to “concede,” and urged them to show “strength” and be “strong.” They would not be able to “take back [their] country with weakness.” He told them that the rules did not apply: “When you catch somebody in a fraud, you’re allowed to go by very different rules.” And they would have an “illegitimate President” if the Vice President did not act, and “we can’t let that happen.” These words stoked an already inflamed crowd, which had heard for months that the election was stolen and that “weak politicians” had failed to help the President.
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. These words did not “amount[] to nothing more than illegal action at some indefinite future time.” Hess, 414 U.S. at 108. President Trump’s words were, as Justice Douglas termed it, “speech . . . brigaded with action.” Brandenburg, 395 U.S. at 456 (Douglas, J., concurring). They were plausibly “directed to inciting or producing imminent lawless action and [were] likely to incite or produce such action.” Hess, 414 U.S. at 108–09.
In his motions, President Trump largely avoids any real scrutiny of the actual words he spoke or the context in which they were spoken. His tack entails essentially three arguments. First, citing Justice Stevens’s dissent in Morse v. Frederick, 551 U.S. 393, 442–43 (2007), he contends that Plaintiffs’ attempt to fit President Trump’s speech in the Brandenburg box improperly relies on how its listeners interpreted the speech rather than his actual words. See Blassingame Trump Mot. at 25 (citing Morse, 551 U.S. at 442–43 (Stevens, J., dissenting) (observing that
the distinction between advocacy and incitement “could not depend on how” others understood speech; to hold otherwise would leave “‘the speaker . . . wholly at the mercy of the varied understanding of his hearers and consequently of whatever inference may be drawn as to his intent and meaning’” (quoting Thomas v. Collins, 323 U.S. 516, 535 (1945)))). The court has no quarrel with the proposition that
an incitement-speech inquiry cannot turn on the subjective reaction of the listener. See Nwanguma v. Trump, 903 F.3d 604, 613 (6th Cir. 2018) (
“It is the words used by the speaker that must be the focus of the incitement inquiry, not how they may be heard by a listener.”).32 In conducting the inquiry above
the court assiduously avoided relying on any allegations that Plaintiffs made about any person’s reaction to the President’s January 6 Rally Speech. (And, Plaintiffs did make such allegations. See, e.g., Thompson Compl. ¶¶ 88, 122; Blassingame Compl. ¶¶ 61, 93.)
The court’s conclusion rests on the words spoken and their context, including the audience to whom the President spoke and when he spoke to them. Next, the President focuses 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.” Blassingame Trump Mot. at 25. Those words are a factor favoring the President. See Nwanguma, 903 F.3d at 611–12 (holding that the allegation that candidate Trump’s repetition of the words “get ’em out of here,” directed at protesters attending a campaign rally, were inciting words was “undercut[]” by the accompanying words “don’t hurt ’em”). That is why the court recited those words in summarizing his Speech. But the President’s passing reference to “peaceful[] and patriotic[]” protest cannot inoculate him against the conclusion that his exhortation, made nearly an hour later, to “fight like hell” immediately before sending rally-goers to the Capitol, within the context of the larger Speech and circumstances, was not protected expression.
“These are the things and events that happen when a sacred landslide election victory is so unceremoniously & viciously stripped away from great patriots who have been badly & unfairly treated for so long. . . . Remember this day forever!”
-- Donald Trump, Tweet, 6:00 p.m., January 6, 2020
When the President tweeted an invitation to the January 6 Rally, pro-Trump message boards and social media lit up with some supporters expressing a willingness to act violently, if needed. Based on these allegations, it is reasonable to infer that before January 6th the President would have known about the power of his words and that, when asked, some of his supporters would do as he wished. On January 6th they did so. When he called on them to march to the Capitol, some responded, “Storm the Capitol.” Thousands marched down Pennsylvania Avenue as directed. And, when some were inside the Capitol, they told officers, “We were invited here by the President of the United States.” Even the President’s counsel conceded that an invitation to commit a tort and the acceptance to do so would establish a civil conspiracy....-- Memorandum Opinion and Order, Bennie Thompson, et al., v. Donald J. Trump, USDC for the District of Columbia, by Judge Amit P. Mehta, February 18, 2022
Finally, President Trump plays a game of what-aboutism, citing fiery speeches from Democratic legislators, including Plaintiff Waters, which he says likewise would not be protected speech if the court were to find, as it has, that the President’s is not. Thompson Trump Reply at 8, 11–13. The court does not find such comparators useful. Each case must be evaluated on its own merits, as the court has done above. If the President’s larger point is that a speaker only in the rarest of circumstances should be held liable for political speech, the court agrees. Cf. Bible Believers, 805 F.3d at 244 (observing in a case involving religious expression that
“[ i]t is not an easy task to find that speech rises to such a dangerous level that it can be deemed incitement to riot”). That is why the court determines, as discussed below, that Giuliani’s and Trump Jr.’s words are protected speech. But what is lacking in their words is present in the President’s: an implicit call for imminent violence or lawlessness. He called for thousands “to fight like hell” immediately before directing an unpermitted march to the Capitol, where the targets of their ire were at work, knowing that militia groups and others among the crowd were prone to violence. Brandenburg’s imminence requirement is stringent, and so finding the President’s words here inciting will not lower the already high bar protecting political speech.33
* * *
The nineteenth century English philosopher John Stuart Mill was a fierce advocate of free speech. But Mill understood that not all speech should be protected. In his work On Liberty, Mill wrote, “No one pretends that actions should be as free as opinions. On the contrary, even opinions lose their immunity, when the circumstances in which they are expressed are such as to constitute their expression a positive instigation to some mischievous act.”
JOHN STUART MILL, ON LIBERTY 100 (London, John W. Parker & Son, 2d ed. 1859). As an example Mill offered the following:
An opinion that corn-dealers are starvers of the poor, or that private property is robbery, ought to be unmolested when simply circulated through the press, but may justly incur punishment when delivered orally to an excited mob assembled before the house of a corn-dealer, or when handed about among the same mob in the form of a placard.
Id. at 100–01. President Trump’s January 6 Rally Speech was akin to telling an excited mob that corn-dealers starve the poor in front of the corn-dealer’s home. He invited his supporters to Washington, D.C., after telling them for months that corrupt and spineless politicians were to blame for stealing an election from them; retold that narrative when thousands of them assembled on the Ellipse; and directed them to march on the Capitol building—the metaphorical corn-dealer’s house—where those very politicians were at work to certify an election that he had lost. The Speech plausibly was, as Mill put it, a “positive instigation of a mischievous act.” Dismissal of Plaintiffs’ claims on First Amendment grounds is not warranted.
e. Giuliani and Trump Jr. As the court already has said, it finds that Giuliani’s and Trump Jr.’s words spoken before and on January 6th are protected expression. None of their words, explicitly or implicitly, rose to the level of a call for imminent use of violence or lawless action. That is true even of Giuliani saying, “Let’s have trial by combat.” That statement was made in the context of his assertion that the election was rife with criminal fraud, and that he was “willing to stake “[his] reputation,” and the President would too, “on the fact we’re going to find criminality.” But Giuliani never said anything about where or when the “trial by combat” would occur. Giuliani’s statement is therefore, at most, “advocacy of illegal action at some indefinite future time.” Hess, 414 U.S. at 108. The “trial by combat” line is surely provocative, but it is not unprotected speech. See Claiborne Hardware, 458 U.S. at 928 (holding that where “spontaneous and emotional appeals for unity and action in a common cause . . . . do not incite lawless action, they must be regarded as protected speech”).
Accordingly, the court dismisses all federal and District of Columbia–law claims brought by Swalwell and the Bass Plaintiffs against Giuliani and Trump Jr.
f. Oath KeepersThe Oath Keepers also contend that the § 1985(1) claim against them must be dismissed because their alleged acts were protected speech, assembly, and petitioning. Thompson Oath Keepers Mot. at 27–28. The court quickly dispenses with this argument. “The First Amendment does not protect violence.” Claiborne Hardware, 458 U.S. at 916. The Oath Keepers are alleged to have acted violently by breaching the Capitol building, “with the rest of the riotous mob,” wearing “paramilitary equipment, helmets, reinforced vests and clothing with Oath Keepers paraphernalia, moving in a regimented manner as members of the military are trained.” Thompson Compl. ¶ 126. Such actions, if true, are not entitled to First Amendment protection.
The court also notes that, if the court were to dismiss the § 1985(1) claim against the Oath Keepers for failing to overcome a First Amendment defense, Plaintiffs could easily cure any deficiency through amendment. “The security of the community life may be protected against incitements to acts of violence and the overthrow by force of orderly government.” Near v. Minnesota ex rel. Olson, 283 U.S. 697, 716 (1931). The court can take judicial notice that ten members of the Oath Keepers, including its leader Stewart Rhodes, have been charged with seditious conspiracy. See Thompson v. Linda & A., Inc., 779 F. Supp. 2d 139, 144 n.2 (D.D.C. 2011) (“The Court may take judicial notice of public records like docket sheets and other court documents.”); Indictment, United States v. Rhodes, No. 22-cr-15 (APM) (D.D.C.), ECF No. 1. There is no First Amendment protection for such alleged conduct.
F. District of Columbia–law claimsWhat remains to address are President Trump’s motions to dismiss the District of Columbia–law claims asserted by Swalwell and the Blassingame Plaintiffs. (Recall, the Bass Plaintiffs advance only a single federal claim under § 1985(1).) The court considers these arguments solely as to President Trump because the court already has dismissed those claims brought by Swalwell against Giuliani and Trump Jr. on First Amendment grounds. The court takes up the District of Columbia–law claims in the order in which they appear in Swalwell’s Complaint, followed by any unique claims asserted by the Blassingame Plaintiffs. The court will note in the header when the claims overlap.
1. Negligence Per Se Based on Violation of District of Columbia Criminal Statutes (Swalwell Counts 3 and 4 and Blassingame Counts 4 and 5) Swalwell and the Blassingame Plaintiffs advance two similar claims, which Swalwell styles as “Negligence Per Se” and the Blassingame Plaintiffs style as “Violation of Public Safety Statute.” Swalwell Compl. at 50–51; Blassingame Compl. at 40–41. The court understands these claims to advance a theory under District of Columbia law that violations of criminal statutes can create civil liability. See Marusa v. District of Columbia, 484 F.2d 828, 834 (D.C. Cir. 1973) (setting forth “guidelines for determining whether violation of a criminal statute can create civil liability”). The court will refer to these as Plaintiffs’ “negligence per se” claims.34 Here, Swalwell and the Blassingame Plaintiffs seek to predicate liability on alleged violations of D.C. Code § 22- 1322, which prohibits inciting of a riot, and D.C. Code § 22-1321, which prohibits acts of disorderly conduct.
At oral argument, the court expressed skepticism that the negligence per se counts state claims under District of Columbia law. See Hr’g Tr., at 180–90. But the court’s skepticism is nowhere matched by an argument in President Trump’s motions to dismiss. The court has searched in vain for a contention that these claims must be dismissed because a violation of the referenced criminal statutes fails to state a cause of action. The President’s motions do not address this theory of liability generally or Plaintiffs’ negligence per se claims specifically, let alone advance the concerns the court raised during oral argument. See Swalwell Trump Motion at 32–37; Blassingame Trump Motion at 33–41. The closest the President’s brief comes to addressing these claims is when he argues that President Trump owed no duty to Swalwell, see Swalwell Trump Mot. at 33–34, but that argument is not made in the context of negligence per se law.35 The President briefly addresses the anti-riot and disorderly conduct laws, but his argument is that those statutes do not reach political speech. Blassingame Trump Mot. at 33. But the court already has held that the President’s January 6 Rally Speech was not protected expression.
Ultimately, notwithstanding the court’s expressed doubts about the validity of the negligence per se claims, it is not the court’s job to raise arguments that a party has not. Accordingly, the negligence per se counts survive the motions to dismiss.
2. District of Columbia Anti-Bias Statute (Swalwell Count 5)Swalwell also puts forth a claim under the District of Columbia anti-bias statute, D.C. Code § 22-3704. That statute provides a civil cause of action for, as relevant here, “any person who incurs injury to his or her person or property as a result of an intentional act that demonstrates an accused’s prejudice based on the actual or perceived . . . political affiliation of a victim of the subject designated act,” “[ i]rrespective of any criminal prosecution or result of a criminal prosecution.” The statute defines “designated act” to mean a “criminal act, including . . . assault . . . and . . . inciting . . . assault.” D.C. Code § 22-3701(2). Swalwell alleges that President Trump committed these crimes and that they were “motivated by [Swalwell’s] political affiliation as a political opponent of Donald Trump.” Swalwell Compl. ¶ 210.
The court expressed doubt at oral argument that prejudice based on “affiliation as a political opponent of Donald Trump” qualifies as “political affiliation” for purposes of the District of Columbia anti-bias law. See Hr’g Tr., 190–91.
The term “affiliation” is undefined in the statute; its ordinary meaning is “the state of belonging to a particular religious or political group.” Affiliation, MERRIAM-WEBSTER’S DICTIONARY,
https://www.merriam-webster.com/dictionary /affiliation (last visited Feb. 10, 2022).
Opposing the President of the United States would not seem to fit that definition. But President Trump does not make this argument. See Swalwell Trump Mot. at 35–36. So, the court declines to dismiss on that ground. President Trump advances two other arguments. First, he contends that Swalwell’s anti-bias claim fails “for all the reasons discussed elsewhere, especially since, incredibly, he alleges the use of political language he finds offensive gives rise not only to a cause of action but an actual crime.” Id. To the extent the court already has rejected arguments made “elsewhere,” it rejects them here, again. As for President Trump’s contention that offensive political language cannot give rise to an anti-bias cause of action, that mischaracterizes what the statute says and what Swalwell pleads. The statute does not make political speech a crime or actionable. Rather, it provides a cause of action for the victim of a crime that is motivated by bias. Here, Swalwell alleges that he was the victim of a criminal assault or incitement of an assault that was motivated by his “political affiliation.” Swalwell Compl. ¶¶ 209–214.36 The claim therefore cannot be dismissed on the ground that the statute makes offensive political speech unlawful.
Second, President Trump argues that the statute only allows for recovery for injury to an individual’s “person or property,” D.C. Code § 22-3704, and that Swalwell only seeks recovery “for psychological or emotional harm,” which is “fatal to his bias claim.” Id. at 35–36. But that argument goes nowhere because the anti-bias law expressly permits recovery of “[a]ctual or nominal damages for economic or non-economic loss, including damages for emotional distress.” D.C. Code § 22-3704(a)(2).37 Swalwell therefore can proceed with his claim under the District of Columbia anti-bias law.
3. Intentional and Negligent Infliction of Emotional Distress (Swalwell Counts 6 and 7) Swalwell asserts a claim of intentional infliction of emotional distress (IIED) and an additional claim of negligence infliction of emotional distress (NIED). To state a claim for IIED, a plaintiff must allege “(1) extreme and outrageous conduct on the part of the defendant which (2) intentionally or recklessly (3) causes the plaintiff [to suffer] severe emotional distress.” Ortberg v. Goldman Sachs Grp., 64 A.3d 158, 163 (D.C. 2013). To state a claim for NIED, a plaintiff must plead that (1) the defendant acted negligently, (2) the plaintiff suffered either a physical impact or was within the ‘zone of danger’ of the defendant’s actions, and (3) the plaintiff suffered emotional distress that was “serious and verifiable.” Wright v. United States, 963 F. Supp. 7, 18 (D.D.C. 1997) (quoting Jones v. Howard Univ., Inc., 589 A.2d 419, 424 (D.C. 1991)).38 President Trump argues that Swalwell’s pleading falls short on the first and third elements on both claims. Swalwell Trump Mot. at 36–37. The court agrees as to the third element of both claims.
“Severe emotional distress” for purposes of a IIED claim is a high bar. It “requires a showing beyond mere ‘mental anguish and stress’ and must be ‘of so acute a nature that harmful physical consequences are likely to result.’” Competitive Enterprise v. Mann, 150 A.3d 1213, 1261 (D.C. 2016). “Serious and verifiable” distress for an NIED claim is a lower bar, but it must manifest in some concrete way, such as “by an external condition or by symptoms clearly indicative of a resultant pathological, physiological, or mental state.” Jones v. Howard Univ., Inc., 589 A.2d 419, 424 (D.C. 1991) (emphasis omitted). Swalwell’s pleading meets neither of these standards. His pleading is largely conclusory. Swalwell Compl. ¶ 223 (alleging that “Defendants’ actions caused severe emotional distress”); id. ¶ 226 (alleging that “plaintiff suffered severe emotional distress”). Swalwell does, however, describe his thoughts and emotions when he was in the House chamber, heard rioters pounding on the door and smashing glass to enter, and saw Capitol police draw their weapons and barricade the entrances. Id. ¶ 224. He states that, during these events, he texted his wife, “I love you very much. And our babies.” Id. ¶ 225. The court does not minimize the trauma and shock Swalwell felt on January 6th, but his pleading simply does not meet the high bar for either an IIED or NIED claim. Those counts will be dismissed.
Before moving to the next claim, the court notes that the Blassingame Plaintiffs also brought an IIED claim (Count 3). They have voluntarily dismissed that claim. Blassingame Pls.’ Opp’n at 32 n.12. That count will be dismissed without prejudice.
4. Aiding and Abetting Common Law Assault (Swalwell Count 8 and Blassingame Count 2)Next, the court takes up Plaintiffs’ common law assault claims based on an aiding-and-abetting theory of liability. Swalwell Compl. ¶¶ 237–252; Blassingame Compl. ¶¶ 163–168. President Trump’s motion in Swalwell does not separately address the aiding-and-abetting-assault claim, but he extensively addresses it in his Blassingame motion. See generally Swalwell Trump Mot.; Blassingame Trump Mot. at 33–40. The court will exercise its discretion and consider those arguments in both cases.39
Halberstam v. Welch remains the high-water mark of the D.C. Circuit’s explanation of aiding-and-abetting liability. The court there articulated two particular principles pertinent to this case. It observed that “the fact of encouragement was enough to create joint liability” under an aiding-and-abetting theory, but “[m]ere presence . . . would not be sufficient.” 705 F.2d at 481. It also said that “[s]uggestive words may also be enough to create joint liability when they plant the seeds of action and are spoken by a person in an apparent position of authority.” Id. at 481–82. A “position of authority” gives a “suggestion extra weight.” Id. at 482.
Applying those principles here, Plaintiffs have plausibly pleaded a common law claim of assault based on an aiding-and-abetting theory of liability. A focus just on the January 6 Rally Speech—without discounting Plaintiffs’ other allegations—gets Plaintiffs there at this stage. President Trump’s January 6 Speech is alleged to have included “suggestive words” that “plant[ed] the seeds of action” and were “spoken by a person in an apparent position of authority.” He was not “merely present.” Additionally, Plaintiffs have plausibly established that had the President not urged rally-goers to march to the Capitol, an assault on the Capitol building would not have occurred, at least not on the scale that it did. That is enough to make out a theory of aiding-and-abetting liability at the pleadings stage.
President Trump urges the court to scrutinize Plaintiffs’ aiding-and-abetting theory under the five factors set forth in the Restatement (Second) of Torts § 876(b), as cited in Halberstam. Blassingame Trump Mot. at 36–37. The five Restatement factors are (1) the nature of the act encouraged, (2) the amount and kind of assistance given, (3) the defendant’s absence or presence at the time of the tort, (4) his relation to the tortious actor, and (5) the defendant’s state of mind. The Halberstam court also considered as an additional, sixth factor the duration of the assistance provided. Halberstam, 705 F.2d at 484. Evaluating Plaintiffs’ theory under these six factors only supports the plausibility of President Trump’s liability as an aider and abettor.
Nature of the act encouraged. The nature of the act here—violent and lawless conduct at the Capitol incited by President Trump’s Rally Speech—supports a finding that President Trump “substantial[ly]” contributed to the underlying tort. Halberstam, 705 F.2d at 484. President Trump contends that this factor favors him because he admonished the crowd to “be peaceful, well before any violence was conducted by anyone listening to the speech,” thus attenuating the “temporal connection” between his words and the tortious act. Blassingame Trump Mot. at 36. But that contention ignores the President’s later words encouraging the crowd, “We fight. We fight like hell and if you don’t fight like hell, you’re not going to have a country anymore,” occurring only moments before he sent rally-goers on a march to the Capitol (“So let’s walk down Pennsylvania Avenue”).
Amount and kind of assistance given. The court in Halberstam observed that this was a “significant factor,” using as an illustration a case in which the aider and abettor through his words had “sparked” the action. 705 F.2d at 484. That is precisely what is alleged to have happened here. President Trump resists this view, arguing he “was not even present at the time of the conduct, nor did he provide any equipment, information, or any other kind of assistance.” Blassingame Trump Mot. at 37–38. This, however, ignores Plaintiffs’ theory, which the court has found plausible, that the President’s words at the rally sparked what followed.
Presence at the time of the tort. For the reasons already discussed, the fact President Trump was not at the Capitol itself does not allow him to avoid potential aiding-and-abetting liability. See Halberstam, 705 F.2d at 484 (noting that presence is not a requirement); id. at 488 (finding liability even though the defendant was not present at the time of the assisted act).
Relation to the tortfeasor. Halberstam says that an aider and abettor’s “position of authority len[ds] greater force to his power of suggestion.” Id. at 484. The application of that factor here requires little discussion. The President nevertheless pushes back, asserting that because the tortfeasors were not known to the President, this factor cuts in his favor. Blassingame Trump Mot. at 37. Leaving aside that Plaintiffs have pleaded that the President did know about organized militia groups, Halberstam makes clear that the aider and abettor need not have a personal relationship with the tortfeasor to be in a position of authority. Halberstam, 705 F.2d at 484 (citing Cobb v. Indian Springs, Inc., 522 S.W.2d 383 (Ark. 1975) (finding aiding-and-abetting liability where a security guard urged a young driver with a new car to give the car a high-speed test run that injured a bystander)).
State of mind. As to this factor, the court has found that Plaintiffs have plausibly alleged that the President was of one mind with organized groups and others to participate in violent and unlawful acts to impede the Certification. Thus, this factor is supported by more than, as the President contends, his alleged pleasure in watching news coverage of the events as they unfolded at the Capitol building. Blassingame Trump Mot. at 37.
Duration of the assistance provided. The Halberstam court considered an additional, sixth factor, the duration of the assistance provided. This factor also weighs against President Trump. True, the Rally Speech itself was relatively short in duration, but the invitation for the Rally came two weeks earlier. The duration is longer still if the court considers his tweets prior to that invitation. Importantly, even President Trump admits that his “sporadic tweets and speeches” present a “stronger argument” for “conspiracy” liability. Id. at 37–38. That duration also supports aiding-and-abetting liability.
Accordingly, the court holds that Swalwell and the Blassingame Plaintiffs have stated a claim for common law assault based on an aiding-and-abetting theory of liability.
