President Donald Trump addressed his supporters at the Save America Rally near the White House on January 6, 2021. The photo shows him speaking to the crowd on the Ellipse, captured by Yuri Gripas/Abaca/Sipa USA (Sipa via AP Images).
Donald Trump is asking a federal court to dismiss several lawsuits brought against him by members of Congress. These lawsuits accuse him of encouraging the attack on the Capitol on January 6. Trump’s defense argues that holding him responsible for the riot would violate his First Amendment rights. His legal team likened his speech at the Ellipse to the provocative lyrics of a certain rapper.
The lawsuits in question were filed following a complaint by Rep. Bennie Thompson from Mississippi, a former chair of the House Select Committee that investigated the January 6 Capitol attack. The plaintiffs include Rep. Barbara Lee from California, Rep. Eric Swalwell also from California, as well as police officers like Conrad Smith, Bobby Tabron, Briana Kirkland, and others.
The parties collectively contend that Trump, acting in his personal capacity, violated the Ku Klux Klan Act of 1871, a law barring mob violence directed at federal officials, and they have made allegations of physical and emotional injury because of his conduct leading up to and on Jan. 6, 2021.
In a 35-page motion filed Friday in the federal district court in Washington, D.C., Trump asked the court to reverse a previous ruling which held that the plaintiffs in the case had plausibly alleged that Trump’s Jan. 6, 2021, speech had “incited the crowd to violence.”
The filing posits a hypothetical rapper who is “ranked as one of the most controversial lyricists of all time” and is “particularly popular among angsty teenagers.” It specifically refers to Chief Justice John Roberts reciting rapper Eminem’s lyrics about drowning his wife in the song “97 Bonnie and Clyde” during oral arguments in an unrelated case in 2014.
“Many of his lyrics describe explicit violent acts, including gun violence, rape, and a description of the rapper drowning his wife,” the filing states. “While at times, the rapper’s lyrics suggest that his work is not intended to encourage or endorse actual violence, other lyrics suggest the contrary. There is extensive news coverage of the impact that the rapper’s music has on young people, commenting on how it incites them to act emotionally and sometimes violently. The rapper publicly acknowledges that he is aware that his music is causing some of his fans to commit violence.”
The hypothetical goes on to describe the rapper taking the stage at an “enormous concert venue” where he “stokes his audience’s passions” and yells for them to “Fight the Establishment” and “Fight like hell,” the latter of which Trump actually said during his Jan. 6 speech.
“Inspired by the rapper’s fiery rhetoric, several of his fans decide to mirror his expressed disdain for authority by storming the nearest establishments, stealing food from the venue’s concession stands, violently attacking the vendors, and beating down security guards to access the backstage areas of the venue,” the motion stated.
Trump argues that while the rapper’s speech would historically “fall squarely within the protections of the First Amendment,” the court’s previous order could hold him liable by finding that his speech contained “an implicit call for imminent violence or lawlessness.” Such an outcome is “constitutionally impermissible” and would “open floodgates to incitement liability for future speakers of all types (not just politicians and presidents),” according to Trump.
Trump has already appealed the trial court’s previous ruling on grounds that he was entitled to official-act immunity a president. Should the court rule against Trump on First Amendment grounds, he asked the court to certify the issue for appeal so that the appellate court can consider both arguments in tandem.
