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Interlocutory Appeal Accepted in Trump Rally Incitement Case

By George Khoury, Esq. on November 06, 2017 | Last updated on March 21, 2019

Using a rarely exercised bit of appellate procedure, the Sixth Circuit Court of Appeals has agreed to take up an interlocutory appeal of the Trump campaign rally incitement case. The lower court had denied Trump's motion to dismiss the incitement claim, but then certified the opinion so that the order could be appealed (as normally orders on a motion to dismiss are not eligible for interlocutory appeals).

But, as the circuit court noted, the procedural circumstances, like the facts, in this case, are rather unique. Clearly the appellate court sees the value in an early resolution of this issue, as a determination that Trump's speech is protected under the First Amendment would squash the incitement claim, and squashing claims against a sitting U.S. president is something the federal courts are somewhat motivated to do in order to maintain political peace.

Facts of the Case

At the March 1, 2016 presidential campaign rally in Louisville, Kentucky, after being jeered by protesters, Trump exclaimed "Get'em out of here!" Then later added "Don't hurt them, if I say go get'em I get in trouble with the press." However, three protesters were physically attacked by Trump supporters. Those protestors then filed this case seeking to hold Trump liable for inciting a riot (under Kentucky law) and causing them to be attacked.

After the federal district court refused to dismiss the incitement claim, Trump sought to appeal that ruling, and the district court agreed that there would be merit to an interlocutory appeal due to the contentious First Amendment issue at play.

Issue(s) on Interlocutory Appeal

The big issue to hopefully be decided by the Sixth Circuit is whether Trump's speech is protected under the First Amendment, or can qualify as "fighting words" or, better yet, "inciting words." But, as the Sixth Circuit formally noted in their order accepting to the hear the appeal, the Circuit Court will not be limited to the questions the district court has "certified." Rather, it will be able to review the entirety of order on the motion to dismiss.

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