Speech Rights for Trump, but Not DeRay Mckesson

On March 1, 2016, Donald Trump pointed to a group of protesters at a campaign rally in Louisville, Kentucky, and said “Get ‘em out of here,” piously adding, “Don’t hurt ‘em.” Supporters assaulted the protesters as they were led out.

The protesters later sued Trump for “incitement to riot”; a panel of the Sixth Circuit dismissed the claim: “The mere tendency of speech to encourage unlawful acts” is not “sufficient reason for banning it.” Even if Trump had intended to encourage violence, the First Amendment still protected him, unless “the words used specifically advocated the use of violence, whether explicitly or implicitly.”

The decision was correct; the Supreme Court has repeatedly held that public protest, and even advocacy of violence, is protected by the First Amendment unless clearly to cause immediate violence. But a three-judge panel of the Fifth Circuit, in a case decided last week, seemed to see things otherwise; it made a mockery