I recently wrote about Rep. Eric Swalwell’s lawsuit against former President Donald Trump as a grave misjudgment that could result in Trump being upheld either on trial or on appeal. In my opinion, the lawsuit violates freedom of expression and the scrutiny of the case law of the Supreme Court. Now, two Capitol police officers injured in the riot, James Blassingame and Sidney Hemby, have been suing for similar reasons with many of the same inherent shortcomings. The 40-page lawsuit was drafted by DC attorney Patrick Malone, who previously filed ethics complaints against Trump campaign or Republican Party attorneys. Many Trump attorneys see this lawsuit as a greater opportunity than liability for their clients.
The officials are demanding $ 75,000 in damages in their complaint, but are also demanding unspecified punitive damages.
The complaint contains five points. There are actually six “counts” listed, but there are two five counts in the complaint. The second “Count Five” is actually just a demand for punitive damages and not an independent illegal act. The first five counts are:
COUNT ONE (directional attack and battery)
COUNT TWO (Aid and Attack)
COUNT THREE (direct the deliberate infliction of emotional stress)
COUNT FOUR (violation of a public safety law: DC code § 22-1322 – incitement to insurrection)
COUNT FIVE (violation of a public safety law: DC code § 22-1321 (a) (1), (a) (2) and (b) misdemeanor)
Specifically, the lawsuit includes the same allegation of intentional infliction of emotional stress made by Swalwell. This claim is in direct contradiction to the controlling jurisprudence. In 2011 the court ruled 8: 1 in favor of Westboro Baptist Church, a notorious group of zealots who made homophobic protests against the funerals of murdered American troops. When Chief Justice John Roberts dismissed a lawsuit against the Church on constitutional grounds, he wrote: “The speech is powerful. It can stimulate people to act, move them to tears of joy and suffering and – as here – cause great pain. According to the facts at hand, we cannot respond to this pain by punishing the speaker. “Roberts distinguished our country from hateful personalities like the Westboro Group, noting that” we as a nation have taken a different course – to protect self-injurious speeches on public issues, to make sure we don’t suppress public debate. “
The complaint adds a tense right to “aid” in addition to the direct right to bodily harm and battery. For example, the complaint states: “Trump supported and facilitated the attack and battery of his followers on James Blassingame and Sidney Hemby through his suggestive words and encouragement on and before January 6, 2021, spoken from and given to him from his position of authority Message extra weight. “Imagine what would happen to freedom of speech in the US if people could be sued for their ‘suggestive words and encouragement’ for third parties who later break the law.
In the Brandenburg v Ohio case, the 1969 Supreme Court ruled that even the demand for violence is protected under the First Amendment unless there is a risk of “imminent lawless action likely to encourage or result in such action.”
Trump never called for violence and instead urged his supporters to go peaceably to the Capitol to “cheer” those who question the electoral vote. Such protests in the capital cities are widespread, and while ruthless, Trump’s speech could just as easily be interpreted as a call to protest rather than violence.
In particular, the leader of the Ku Klux Klan, Clarence Brandenburg, also referred to a planned march at Congress after declaring that “revenge” could be taken for the betrayal of the President and Congress. The Supreme Court still overturned the conviction.
The court has consistently rejected this type of argument as a threat to freedom of expression in our society. In the Hess v Indiana case, the court declined to prosecute a protester who declared intent to take over the streets, stating that “at worst (the words) nothing but advocating illegal activity at some unspecified future time were”. In another case, NAACP v Claiborne Hardware Co., the court overturned a judgment against the National Association for the Advancement of Colored People after an official said, “If we catch any of you in one of these racist businesses, we are it’s gonna break your damn neck “That was ruled as the hyperbolic language of the legal profession.
The complaint also contains a direct right to riot. This will force the court to answer the question raised in the second impeachment. I have repeatedly asked in columns why, if the incitement was so clear and public, there is still no need to file a criminal complaint against Trump. A host of legal experts insisted that this was a strong and clear case in favor of such a charge, and District of Columbia Attorney General Karl Racine received widespread recognition for announcing that he was shortly after the January 6 uprising Trump investigated over possible incitement to incitement. Then nothing happened. That was strange as legal experts insisted the January 6th crime was public and obvious. Still, four months have passed without Trump conducting an interview, let alone a charge of criminal incitement. Why?
The reasons could be a timeline showing a messy and contradicting report:
►Trump finished his speech at 1:10 p.m.
►The first rioter entered the U.S. Capitol at 2:12 a.m.
► According to CNN, at around 2:20 a.m., Trump had a violent call to house minority leader Kevin McCarthy, who told him about the injury.
At 2:26 a.m., Trump mistakenly called Utah Senator Mike Lee instead of Alabama Senator Tommy Tuberville. After Lee gave Tuberville his phone, he reportedly said Trump didn’t seem to realize the extent of the unrest in the building.
At 2:38 am, Trump urged his supporters to be peaceful and support the police.
The greatest risk to Democrats is that this lawsuit (and Swalwell’s lawsuit) will give Trump the ultimate justification in court. These cases are brought under the lower standard of evidence under civil law. If Trump were able to defeat these cases below the easier standard, it would significantly undermine allegations of criminal offense.
The multitude of such lawsuits can exacerbate the changes in the search for a likable trial judge. However, these lawsuits are inherently flawed and pose a serious threat to freedom of expression. Based on the evidence, they are likely to fail on appeal even if they survive the litigation at the trial level. Additionally, the proximity of the records can allow the Trump team to effectively pick the weakest case to resolve these issues by slowing down the walking in the other cases.
The lack of comment on the threat to freedom of speech in these lawsuits is self-appalling. While I condemned Trump’s speech (while it was being delivered) and his ruthless role in this insurrection, such views should not blind us to the ramifications of those actions. If the courts accepted the arguments in these lawsuits, we would be taking advantage of the protection of freedom of expression in the United States.
The complaints make extensive and, in my opinion, reckless liability claims for political expression. In the end, freedom of speech should be confirmed, but these lawsuits could also provide some sort of legal justification for Trump ahead of the 2024 elections.
Here’s the complaint: Blassingame v. Trump