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The mere tendency of speech to encourage unlawful acts is not a sufficient reason for banning it. What is required, to forfeit constitutional protection, is incitement speech that specifically advocates for listeners to take unlawful action. It is not an easy task to find that speech rises to such a dangerous level that it can be deemed incitement to riot.
Plaintiffs 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 following Donald Trump’s instructions. Plaintiffs were pushed and shoved by members of the audience as they made their exit. Plaintiffs sought 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 held that the words allegedly uttered by presidential candidate Donald Trump during his speech did not make out a plausible claim for incitement to engage in tumultuous and violent conduct creating grave danger of personal injury or property damage, and the protestors thus failed to state a viable claim for incitement to riot. In the ears of some supporters, Trump's words may have had a tendency to elicit a physical response, in the event a disruptive protester refused to leave, but they did not specifically advocate such a response. The court noted that Trump’s speech itself included express disavowal and discouragement of violence. Because Trump did not specifically advocate imminent lawless action, his speech enjoyed First Amendment protection.