Kashiya Nwanguma v. Donald Trump, 903 F.3d 604

Background

In March 2016, plaintiffs Nwanguma, Shah, and Brousseau attended a Trump campaign rally in Louisville to protest; Trump twice told the crowd “Get ’em out of here,” and also said “Don’t hurt ’em.”
As protesters were escorted out, members of the audience allegedly assaulted, pushed, and shoved plaintiffs; Brousseau was punched.
Plaintiffs sued in state court asserting state-law claims including incitement to riot (Ky. Rev. Stat. § 525.040); defendants removed the case to federal court on diversity grounds.
The district court dismissed some claims but denied dismissal of the incitement-to-riot count; it later certified that denial for interlocutory appeal under 28 U.S.C. § 1292(b).
The Sixth Circuit reviewed de novo whether the complaint plausibly alleged Kentucky incitement-to-riot and whether the First Amendment would bar liability.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the complaint plausibly states a claim for inciting to riot under Kentucky law (elements: incitement of ≥5 persons to a public, tumultuous, violent disturbance creating grave danger)	Trump’s repeated “Get ’em out of here” implicitly urged supporters to use force; similar conduct at other rallies shows intent	The words were not a call to riot; Trump also said “Don’t hurt ’em,” which negates any urging of violence	No — allegations fail to plausibly plead the statutory elements (especially tumultuous/violent conduct creating grave danger)
Whether, even if the state claim were plausible, the First Amendment protects Trump’s speech under Brandenburg (speech can be punished only if it advocates imminent lawless action and is likely to produce it)	Context (rally, hostile crowd, prior rallies) makes the words incitive; intent/likelihood factors weigh for plaintiffs	Speech did not explicitly or implicitly advocate imminent violence; audience reaction cannot convert protected speech into incitement	Yes — speech is protected; words did not specifically advocate imminent lawless action, and admonition not to harm undermines an incitement finding
Proper focus for incitement inquiry: words vs. listener reaction / subjective effect	Must evaluate context and listener reaction; plaintiffs stress context shows likely violence	Focus must be on the speaker’s words (objective content); hostile crowd reaction cannot transform protected speech into incitement	Focus on the speaker’s words (content, form, context) — objective assessment of the language is required; crowd reaction alone insufficient
Pleading standard on 12(b)(6): whether defendant’s proffered benign reading of the words improperly displaces plausibility inquiry	Plaintiffs: plausible alternative inferences should be credited at pleading stage	Defendants: the complaint’s own factual allegations (including “Don’t hurt ’em”) contradict plaintiffs’ incitement theory	The court applied plausibility standard: plaintiffs’ allegations amount to mere possibility, not plausibility, so dismissal proper

Key Cases Cited

Brandenburg v. Ohio, 395 U.S. 444 (1969) (establishes test forbidding punishment unless advocacy is directed to inciting imminent lawless action and is likely to produce it)
Hess v. Indiana, 414 U.S. 105 (1973) (emphasizes reliance on the actual words used; intent and likelihood are insufficient without language that advocates imminent lawless action)
Snyder v. Phelps, 562 U.S. 443 (2011) (court must examine content, form, and context; offensive context alone does not strip First Amendment protection)
Bible Believers v. Wayne Cty., Mich., 805 F.3d 228 (6th Cir. 2015) (en banc) (speech that does not explicitly or implicitly encourage violence is protected; hostile crowd reaction does not convert protected speech into incitement)
Ashcroft v. Iqbal, 556 U.S. 662 (2009) (pleading must state a plausible claim; legal conclusions need not be accepted)
Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) (complaint must plead factual content that raises a plausible entitlement to relief)