Updated at 3:53 p.m.
In a significant victory for President Donald Trump, a federal appeals court on Tuesday ruled that Trump’s “get ‘em out of here” appeal to his supporters to eject protesters from a rally in Kentucky in 2016 was protected by the First Amendment’s free speech clause.
A three-judge panel of the U.S. Court of Appeals for the Sixth Circuit, noting that Trump also said “don’t hurt ‘em,” found that the president “did not specifically advocate imminent lawless action,” and therefore did not violate a state law barring incitement to riot.
The case was Nwanguma v. Trump and the judges on the panel were David McKeague, Richard Griffin and Helene White, all appointed by President George W. Bush.
Jones Day partner Michael Carvin represented Trump in the case, arguing that “punishing Mr. Trump for calling for the expulsion of disruptive protesters from his campaign rally would be a severe infringement on his First Amendment rights.”
During the event in Louisville on March 1, 2016, protesters displayed anti-Trump signs, interrupting his campaign speech several times. Each time, Trump said, “Get ‘em out of here,” or “Get out of here,” according to briefs filed in the case.
At one point, Trump also said, “Don’t hurt ’em. If I say ‘go get ‘em,’ I get in trouble with the press, the most dishonest human beings in the world.”
The appeals court ruling asserted that even if Trump had only said “get ‘em out of here,” that might be construed as “implicitly encouraging unwanted physical touching,” but not incitement to riot.
“The notion that Trump’s direction to remove a handful of disruptive protesters from among hundreds or thousands in attendance could be deemed to implicitly incite a riot is simply not plausible,” McKeague wrote.
The court cited the landmark 1969 U.S. Supreme Court decision Brandenburg v. Ohio, which established that the First Amendment protects speech advocating the use of force, except when it is aimed at “inciting or producing imminent lawless action.”
But because Trump “did not specifically advocate for listeners to take unlawful action,” the appeals panel stated that his remarks “are not up to the task demanded by Brandenburg.”
In a concurring opinion, White agreed with the outcome but said the decision “overemphasizes the legal significance of the ‘don’t hurt ‘em’ statement,” and should not have reached the First Amendment issue when the case could be decided on Kentucky law.
Louisville lawyer Daniel Canon, who argued for the ejected protesters, said they will seek further review.
“Mr. Trump, throughout his campaign, intentionally used crowd violence to suppress dissident speech—the kind of core speech that the First Amendment traditionally protects,” Canon said in a statement. “The court’s opinion today gives him a free pass for that conduct, even though he had publicly been asking for violence to occur at these rallies for months, and even though his co-defendants have said they would not have attacked our clients if Trump had not directed them to do so.”
Cannon added: “Allowing a candidate for public office to use the First Amendment as a shield under these circumstances is unprecedented and dangerous.”
The Sixth Circuit ruling is posted below: