mulching his conduct under the statute or imminent lawless action under the constitution so the kentucky statute doesn't reaches speech and if he did it would be unconstitutional under the first amendment all mr trump said was get him out of here that's not advocating imminent lawless action that's perfectly lawful and he has a common law right under kentucky law to exclude on wanted intruders and he hasn't this court's decision and says strong first amendment right to exclude people who are interfering with his message to his supporters so far from being unlawful was perfectly lawful the only way would become unlawful was if he had advocated the use of excessive force more force than was reasonably necessary to remove these people from the venue and obviously the words here pale in comparison to the words of the supreme court has said are protected as a matter of law in  s he said we're going to break their damn necks in the has case they said we're going to take the f in street again but both of these were held constitutionally protected by the supreme court as a matter of law so the district court suggested he needed further discovery to look at the context but we know the context the context was at the core the first amendment the context was a president running for somebody running for the presidency united states in a campaign rally and this is precisely the kind protected by the first amendment would you want us to rule on both the fences and the others obviously underage wonder if you can go off on the non constitutional ground the statutory ground that would be more than sufficient we think any ambiguity in terms of whether the kentucky statute reaches our conduct is satisfied by the first rule of lenity and the doctrine of constitutional avoidance that any expansive interpretation of the statute in ocular speech here would render it unconstitutional i'm not asking for a constitutional ruling but we think the constitution is clearly on our side is in another way of looking at it at least potentially that whether construction one way or not  unconstitutional they should be considered in the construction of the statute and that was why we keep the first amendment in mind and hopefully try to avoid it my shorthand reference that judgment keyed was constitutional avoidance it's a well established proposition that if there is in even a marginally reasonable the fact that he didn't get out of here and make sure they never come back be rough with them or break their necks that opposite he said get mad if you're that he said don't hurt him at other points he said forget him ignore so there's no way that you can interpret those words to do excessive force that's particularly true in the context of the first amendment where is this court emphasized in bible believers the scales are weighted very heavily in favor of the free speech side so if there's any ambiguity if the speaker wins that's also the teaching of the court in wisconsin right to life where they were confronted actually with a very similar claim to what's being done here the plaintiffs in the district court want you to skip over the threshold issue of whether or not the words actually convey excessive force and jump to the questions that first questions purely legal and jump to the questions if they say involve facts which is president trumps intent and the effect that it had on the audience that was precisely the issue that was confronted by the court in wisconsin right to life there the question was whether or not the words advocated the defeat although i also understand these are not my clients when little has it and that discovery is not going forward i think everybody is awaiting the outcome of this but there's nothing to prohibit it from going forward don't they have every right to go all right i mean if their argument is they want to to discern what the words had on on the assault turf the other the defendants i mean they can obviously the pows those defendants they can certainly depose the defendants i don't think the defendants have any kind of legal argument that they were somehow travel agents but they can go after these people who sold you're saying discovery has not gone forward as those other defendants even though it could those people engage in violent assaults under the alert allegation so obviously you can go after them here we have a very unusual circumstance where there's same somebody who didn't engage in violent assault any games and constitutionally protected speech can nonetheless be held live we think the issue with respect to president trump is whether or not he gauge a constitutionally protected speech since we think it's quite clear that he did and there's no way you can come after them we gordons of the effect on the people who didn't get in the assault and that was really actually the teaching of wisconsin right to life where there was an advocate test well the way to figure out whether or not to skeets speech is constitutionally protected is look at the speaker's intent and the effect on the audience in wisconsin right to life rejected that it said first of all if you get into intent then you're going to have to have very burdensome discovery which itself is a great burden on constitutionally protected speech it also said would create zor that was there were the bizarre rule that if the same words came out of two different people's mouths one would be constitutionally protected and one wouldn't depending on the speaker's intent also in terms of the effect on on them that they said we're not going to get into effect for the same reason because you would a involve some discovery but more importantly you put the speakers right to speak at the mercy of how the audience interpret it and that was the point that this court made bible believers where it said a hostile audience reaction cannot convert protected speech into a protected speech we also get that of course from hess and claiborne was conceded that the words might have been perceived might have been understood as advocating violence but since we err on the side of not speech that would no the final point i'll make in terms of discovery is of course there's really no point to discover if you're looking at the words in the context we already know what the words in context are they were led to the complaint and if they are willfully insufficient in the complaint then obviously discovery is not going to matter they have a film of the words in the time plates which were not disputed so if you engage in this very burdensome discovery and go to trial with mr trump in the trump campaign still involved at the end of that laborious process we're going to do is say as a matter of law everyone agrees it's a legal question these words don't rise to the level of constitutionally protected speech so will this discovery into these external events would be meaningless so if you have a situation where you have these we covering campaign rallies in it there are certain words that trigger certain responses so you go through and you go through the litany of different things and first you go through a locker and then there's another one make america great and then when there's a protester there's the get him out of here and the expected response to get him out of here is that the crowd swells and they identify what the euro tent is and they take the person physically and or right excessive force in either beat them up or do whatever it is and that's that's the pattern that's the that's the way it grows at each one of these rallies and it doesn't matter there that all he says is get him out of here i would accept hypothetically the notion that if there'd been a consistent pattern of saying the words get mad if you and it was understood in that context that the normal english usage didn't apply they get mad if he was really go beat them up then they might have some argument about getting into these prior events but the key thing when you look at the three events that they have a legitimate complaint that preceded this event they never suggested the words get  uttered much less if they were understood as some kind of code word for violence if you walk through the three examples they gave you the one was the alabama event before first of all the words they quote from president trump were not stated at the rally they were stated after the rally were you saying that somebody maybe should have been rough roughed up so it doesn't even tell you anything about rally related speech the second one was same in the old days of people engage in this kind of behavior they would be taken out on the stretcher they don't allege  it's not true that that led to any kind of violent reaction by the audience because obviously he was talking about the old days the time that passed the third example they give is he said something like naacp the crap out of them if they're going to throw it made at so even in that context he's making the point that if somebody is about to assault me you can protect me obviously that has no application here because they were arguing they were alleging peaceful protests not on the verge of assaulting president trump so the summary of the three events that proceeded this that they think are relevant to keep points i'd like the court to focus on is one know where do they suggest that the words get mad if you had some significance along the lines of your honor's hypothetical to mean something different and in fact the fact that there's points all these other words suggest that those are the ones if any that would have spurred violence but he didn't say any of those other words here plus which for the reasons i've articulated all of these prior events are clearly distinguished well from what happened in louisville and what their wrote what i was really getting at is whether you can look at the context to mean you made the point that it can't be the case that the same words added to different tinderbox one on the verge of violence then then you might have a different result in terms of whether was inciting violence but the key point there i think iran is to look at the supreme court cases involving all of these were much more racially tinge tinderboxes than anything going on here in claiborne black child had just been shot by mississippi police in the late sixty's the supreme court said that the community was quote at the breaking point in terms of racial tension which had started all of this in h vietnam war protests where they already resisted the police and arrests had been made so a very highly contentious atmosphere in bible believe knows they were invading the arab international festival with discussed in comments about muslims and the prophet and brand was klan rally so my point is these issues never really arise unless the situation is has some potential for people to engage in controversial activities but we've already stipulated to the contents we already know what the context was we already know what the two people did in response so the discovery won't balloon eight that in any way short form normal discovery illuminates what happened of the prophets through all matters of public good morning good morning may please the court opposing counsel good morning runners my name is dean cain and i'm here representing the plaintiffs in this matter and mr trump throughout his campaign intentionally use crowd violence to suppress dissidents unpopular and counter majeure tarion speech that is the kind of course peach that the first amendment traditionally is supposed to protect and is now seeking to use the first amendment as a shield simply because his own prompted the sort of violence that he had been asking for publicly to happen at these rallies for a period of months you disagree mr cannon that will least start with the words themselves we start with the words themselves and i think that the rule that is being urge by counsel is that you start with those words completely devoid of context and the rule that they're asking for here i think is unprecedented in the but in that's a pretty simple question start with the words now if you start with the words then you may go someplace next and maybe it's context maybe it's other things but we look at the first thing we do is look at the words right yes sir and i think it's impossible to look at those words first thing we do is look at the words rights are now what word or words when we're just looking at the words this is the first step not precluding you from however many steps you want to take after that what is it about the words themselves that rise to the level of inciting a riot in this is our overall point your honor i think looking at those words in a vacuum without any reference to context whatsoever in the situation in frankly in any first moment situation is impossible always look at the context in which  the threshold matter or otherwise of course have always looked at the kind i take it based on your answer or your not answer there's nothing about the words themselves just that the first step the words themselves don't incite violence no your honor i believe that in this case you've got a situation that begin as something of an outlier among first moment cases particularly incitement cases where you have a direct command being given this was important to the district courts analysis so i do think this is different from has i do think it's different from claim warren than the other incitement cases that been cited by the supreme court in that you've got an explicit command you've got a direct imperative to take immediate action in that is what sets but i think that's all true it's a says get him out of here that's either four or five words however you want to count them so none of them speak to the manner in which somebody gets these protesters out of the rally that the fair to say and then underscores the point that you can't look at these words completely devoid of context because there is no way to understand get them out of here without understanding who is being spoken to which is something that was put in the controversy by the defendants at the beginning of this case but they could have gotten them out of there peacefully correct they could have gotten them out of there peacefully they could have been asked to leave peacefully so so if you can interpret the words both of those ways then at least on the face of the words there's nothing that incites somebody to use violence as one of multiple means to get them out of there is that who would agree with them are so we're ok on the words so then we have to put the words in context of the context is what happened in these prior rallies i think you would have a good argument if you said get is get them out of here and do what they did in akron or wherever a prior rally was if that had involved excessive violence but that didn't happen here right that's correct and those were the explicit words that were said other words were don't hurt them right after get them out of here write the words that he said that he spoke were don't hurt them when they go ok so you couple that then i get in trouble with the press and if i say don't hurt injected a whole nother concept now that i don't think so even in the briefs in that sense is there a case that it dresses how sincere instead insincere somebody is when they say words i think seventh circuit but it's exemplary of the kind of cases that you run into in the federal law that interpret solicitation and other crimes that are based upon speech in the facts in that case you've got a defendant a criminal defendant that makes a blog post in two thousand and five that says it would be great is all the jurors that were sitting on this case got assassinated and then three years later makes another post putting information personal information just it's just a personal information that's under the defendant's tast that indictment would have to be thrown out that indictment would be invalid because it doesn't specifically advocate violence within those when what the court says in that case which is politics a poster says in that case is that you have to look at the context in which this arises let me just for a moment take a breath or start on this concept of violence so let's assume for purposes of the argument that somebody could interpret those words to utilize violence start with that assumption for a moment advocating violence does not alone does it if that's all we have does not violate the kentucky statute does it no your honor so it has to be violence plus something else in other words in the context of the statute it has to be to mulch you us and violent conduct and that creates a grave danger of personal injury to the other so it's not just saying even if he had said rough him up on the way out i'm having trouble seeing how that rises to the level of a riot and again when you look at those words in context knowing what the trump campaign knew about these rallies leading up to we cited i think in our briefing below we said something like six examples that happened prior to this march the first rally knowing what they knew about what was likely to occur at these rallies the sort of violence that was likely to occur you continue and that there was actually a riot within the meaning of kentucky law in any of these prior rallies i don't know that i don't know if there was actually a riot ever occurred within the meaning of the kentucky law and prior of all this was what is seventh attempt to incite a riot in the only one that was successful in what we're to believe it wouldn't matter one way or the other argument would have some traction if there had been prior riots with the kentucky statute doesn't require a riot actually occurred it's an incoming prime and so just simply asking for what it has to create a grave danger of personal injury so it's as we discussed before it's something more than just advocating violence in the get if you look yes or and again if you look in this this is what that was this was an explicit command to take immediate action and you know what  my colleague characterized it as a tinderbox on the verge of violence and he said if it was a tinderbox on the verge of violence then we have a different situation that's what this was what where is there anything even in the complaint that alleges that this rally it was a tinderbox on the edge of violence you carbonless comparing that to things happening in the past where where the community was full of racial tension it's throughout   rally it's through our complaint in the situation that you have on the ground at this rally is you have essentially what are uniformed white supremacists running around and waiting for an excuse to beat people up and i think it's important to the court know that you know that violence actually occurred in this case and that's that's again what makes this case an outlier in the prior incitement jurisprudence that we've been looking at violence actually occurs in and  doesn't occur and tell mr trump gives the command it can't possibly be the test that you look to see whether the words satisfy the statute and don't violate the first amendment because of what did or did not happen i think that's right your honor i well i am but i think that it's evidence that we've been attacked for not setting forth a plausible case that this could incite violence in mr trump's words inside violence or point is they did actually incite violence and they did not inside while so you have a protest of this area my client is one who's there with a sign that has mr trump's head on the body of a pig and she's standing there in the crowd they don't touch her made were people calling out where the signs creating distractions that this detracted from his speech but to my knowledge judge it was just he saw this one go meet with the sign and potential impact of one route infringing upon the first amendment and one route not infringing on the first amendment well i think that there are a number of different routes that could have been taken by the truck campaign of asking situations of solicitation there's a case that we've also cited in our briefing called united states versus hale where you've got a criminal defendant saying wink wink nudge nudge don't do anything illegal and those words on their face do not advocate any particular kind of violence they don't incite violence they go you know in under the defendant's test you have to throw out that indictment and i would propose to the court that you have to throw out a lot of these indictment you were to just look at the words in a vacuum and completely devoid of context which i believe is what the defendants are urging in this case i'm really having trouble understanding how we have to throw out a lot of indictments under federal law because of how we interpret an incitement to riot statute in tennessee excuse me kentucky could you explain that please yes your honor because if the first amendment is allowed to be an absolute defense to this based on just the facial meaning of the pointed out by or by or are in because it would nullify a lot of employment discrimination where you have coded language where you have your skipping right by the question of whether the words themselves in this case violate kentucky or the words in an indictment that  allegedly the source of an invite and i meant violate it one or more federal laws step to look at the words i think that's right in but the key thing is that the kentucky law just like the first amendment would look at those words in context and just because there isn't a an explicit call for violence on the face of the words in black and white does not mean that the speaker wasn't trying to incite a riot and that's exactly what we have in this case just looking at the words in a vacuum without any reference to context of reference to happen what's happened before or sense is a mistake i think it would throw out decades of first memory jurisprudence and a lot of different areas if you allow an absolute defense like that and we just ignore don't heard of that matter no i don't think we ignore it but i think that we're entitled to discovery on it number one i don't think on what the president intended something that has been called into direct controversy by the defendants in this case so number one they're saying that it's not plausible that he was even talking to the crowd because he was talking to security and clearly that's the only plausible interpretation so they've called his intent even in saying get him out of here  question but then secondarily two things i'd say one is just saying don't hurt him after you've already incited violence and that could be used as an affirmative defense i suppose or some sort of mitigating factor but it doesn't excuse the incitement the inciting conduct that's already occurring there in order for us to follow that argument we'd have to assume that the words themselves did assert or encourage violence as the means of getting somebody out of their correct you're talking about get him out of here who yes you have to assume under your line of thought that get him out of here either explosively or implicitly urges the use of violence to accomplish that means that's the you have to make that assumption in order to then be able to negate the concept of don't hurt yes your honor in that assumption is made in the overall context in which those comments were made thank you very much mister briefly your honor first of all this new new notion that president trump saw this thing incited these other people to engage in violence is not the complaint doesn't make a whole lot of sense because among other things to people that they claimed didn't have any kind of man were also violently assaulted according to their complaint so that's goes well beyond the pleadings my major point is that we're not asking you to ignore the context we're asking you to pay attention to the context in the context again was something which is as the court put it claiborne's highly emotive language is being used in a public attendance and that's where the courts need to proceed with the most extreme care before they get involved and i'm perfectly happy for you to look at the prior events because the key takeaway from those prior events which my opponent did not dispute is the words get him out of here were never uttered nor were they misunderstood as somehow excessive violence in terms of how you're supposed to interpret those words yes they did use the word implicitly in bible believers but i just hardly encourage you to look at bible believers because that tells you three things it says that the scales are heavily weighted in terms of protecting the speech it says it needs to be an objective standard in the text not just in the footnote it says that a tendency to elicit illegal activity quoting ashcroft is not enough this court's decision briggs says you can't look at the implications of speech unless it's a very clear implication because it creates the grave danger of trenching on protected speech in claymore in itself the supreme court decision they said these words might have been understood as a call to physical violence that's a  seven of the opinion but it said given the context and given the need to protect unprotected speech to give us the breathing space that the first amendment demands we as a matter of law are holding that these were you're not actionable all of those things make it clear that even if this did violate the statute which it plainly does not that there's no way that this can be penalized under the first amendment and so none of my opponent's answers to  turned a statement get him out of here don't hurt them into meaning precisely the opposite which is hurt them while you're getting getting the mad here and the first amendment won't allow you to twist the speaker's words to mean the opposite of what it says in this case under bible believers should be shut down at the outset of this without engaging in the burdensome discovery on speakers that itself greatly chills first amendment protected speech unless there are additional questions