The U.S. District Court for the Western District of Kentucky Louisville Division upheld protesters right to claim for damages on various counts including assault and battery against audience members who attacked them, and against Trump and his campaign for inciting violence and negligence. Three individuals attended a Donald Trump for President rally with the intent to peacefully protest but when then-Presidential Candidate Donald Trump noticed them in the crowd he stated, “get ’em out of here.” In response, audience members Heimbach and Bamberger, as well as an unknown individual, began to physically attack the protesters in an alleged effort to remove them from the hall. Applying the three-part test from Brandenberg v. Ohio, the Court found it plausible that Trump’s speech advocated the use of force; that whether or not the Defendants intended for the violence to occur is a matter to be litigated; and that the requirement that violence was likely to result was met by allegations that violence actually occurred. Notably, the District Court rejected the defense that Trump’s speech was constitutionally protected speech under the First Amendment, stating “The law is clear….that ‘[s]peech that falls within th[e] category of incitement is not entitled to First Amendment protection.” With regard to the negligence claim, the Court reasoned that the complaint sufficiently established that Trump had a duty of care to the Plaintiffs and their harm was foreseeable. In these circumstances, the Court found the Plaintiffs’ incitement to riot claim plausible and denied the motion to dismiss.
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