Amicus Curiae Brief — Donald J. Trump, Petitioner v. Norma Anderson, et al.

No. 23-719

IN THE

Supreme Court of the United States

DONALD J. TRUMP,

Petitioner,

v.

NORMA ANDERSON, ET AL.,

Respondents.

On Writ of Certiorari to the

Supreme Court of Colorado

BRIEF OF CAPITOL POLICE OFFICERS PRESENT

AT THE U.S. CAPITOL ON JANUARY 6, 2021, AS

AMICI CURIAE IN SUPPORT OF RESPONDENTS

Lauren M. Blas

Counsel of Record

Katherine Marquart

GIBSON, DUNN & CRUTCHER LLP

333 South Grand Avenue

Los Angeles, CA 90071

(213) 229-7000

LBlas@gibsondunn.com

Lee R. Crain

Connor S. Sullivan

Mark J. Cherry

Alexandra Perloff-Giles

Brian Yeh

Sasha Dudding

Iason Togias

GIBSON, DUNN & CRUTCHER LLP

200 Park Avenue

New York, NY 10166

(212) 351-4000

Damon Hewitt*

Jon M. Greenbaum

Edward G. Caspar

Marc P. Epstein

LAWYERS’ COMMITTEE FOR

CIVIL RIGHTS UNDER LAW

1500 K St. NW, Suite 900

Washington, D.C. 20005

(202) 662-8600

William J. Blechman

Elizabeth B. Honkonen

KENNY NACHWALTER, P.A.

1441 Brickell Avenue, Suite 1100

Miami, FL 33131

(305) 373-1000

* Admitted in Pennsylvania only.

Practice limited to matters before

federal courts.

Counsel for Amici Curiae

i

TABLE OF CONTENTS

Page(s)

TABLE OF AUTHORITIES ....................................... ii

INTEREST OF AMICI CURIAE ................................1

SUMMARY OF THE ARGUMENT ............................3

ARGUMENT ...............................................................7

I.

The First Amendment Is No Defense

Because Mr. Trump’s Speech Was

Integral to His Unlawful Activity ..................7

II. Mr. Trump’s Speech Is Not Protected

Under Brandenburg .....................................12

CONCLUSION ..........................................................18

ii

TABLE OF AUTHORITIES

Page(s)

Cases

Anderson v. Griswold,

2023 WL 8006216

(Colo. Dist. Ct. Nov. 17, 2023) ......................... 7, 15

Anderson v. Griswold,

2023 WL 8770111 (Colo. Dec. 19, 2023)

.............................. 3, 4, 5, 10, 11, 13, 14, 15, 16, 17

Brandenburg v. Ohio,

395 U.S. 444 (1969) ............ 6, 12, 13, 15, 16, 17, 18

Cal. Motor Transp. Co. v. Trucking Unlimited,

404 U.S. 508 (1972) .............................. 6, 7, 8, 9, 11

Counterman v. Colorado,

600 U.S. 66 (2023) ................................................ 17

FCC v. Pacifica Found.,

438 U.S. 726 (1978) .............................................. 13

Giboney v. Empire Storage & Ice Co.,

336 U.S. 490 (1949) ............................................ 8, 9

Haupt v. United States,

330 U.S. 631 (1947) .............................................. 11

Hess v. Indiana,

414 U.S. 105 (1973) ........................................ 13, 17

NAACP v. Button,

371 U.S. 415 (1963) ................................................ 8

NAACP v. Claiborne Hardware Co.,

458 U.S. 886 (1982) ........................................ 11, 16

Ocasio v. United States,

578 U.S. 282 (2016) .............................................. 10

iii

R.A.V. v. City of St. Paul,

505 U.S. 377 (1992) .............................................. 12

Rice v. Paladin Enters., Inc.,

128 F.3d 233 (4th Cir. 1997) ................................ 12

Sines v. Kessler,

558 F. Supp. 3d 250 (W.D. Va. 2021) .................... 9

Smith v. Trump,

2023 WL 417952 (D.D.C. Jan. 26, 2023) ............... 2

Smith v. Trump,

No. 21-cv-2265 (D.D.C. Dec. 3, 2021) ................ 1, 5

Thompson v. Trump,

590 F. Supp. 3d 46 (D.D.C. 2022) ........................ 15

United States v. Alvarez,

567 U.S. 709 (2012) .............................................. 10

United States v. Bell,

414 F.3d 474 (3d Cir. 2005) ................................. 12

United States v. Chansley,

525 F. Supp. 3d 151 (D.D.C. 2021) ...................... 12

United States v. DeGrave,

539 F. Supp. 3d 184 (D.D.C. 2021) ...................... 12

United States v. Freeman,

761 F.2d 549 (9th Cir. 1985) .............................. 8, 9

United States v. Fullmer,

584 F.3d 132 (3d Cir. 2009) ................................. 11

United States v. Hansen,

599 U.S. 762 (4th Cir. 2023) .................. 6, 8, 10, 11

United States v. Mackey,

652 F. Supp. 3d 309 (E.D.N.Y. 2023) .................... 9

iv

United States v. Miselis,

972 F.3d 518 (4th Cir. 2020) .................................. 6

United States v. Nordean,

2022 WL 17583799 (D.D.C. Dec. 11, 2022) ......... 11

United States v. Pierce,

785 F.3d 832 (2d Cir. 2015) ................................. 11

United States v. Rahman,

189 F.3d 88 (2d Cir. 1999) ................................... 10

United States v. Robertson,

588 F. Supp. 3d 114 (D.D.C. 2022),

aff’d, 86 F.4th 355 (D.C. Cir. 2023) ..................... 12

United States v. Stevens,

559 U.S. 460 (2010) ................................................ 8

United States v. Trump,

2023 WL 8359833 (D.D.C. Dec. 1, 2023) ............... 9

United States v. Williams,

553 U.S. 285 (2008) ................................................ 8

Wisconsin v. Mitchell,

508 U.S. 476 (1993) .............................................. 11

Young v. Am. Mini Theatres, Inc.,

427 U.S. 50 (1976) ................................................ 13

Other Authorities

John Stuart Mill, On Liberty

(London, John W. Parker & Son, 2d

ed. 1859) ............................................................... 15

The Reconstruction Acts,

12 Op. Att’y Gen. 182 (1867) ............................... 10

1

INTEREST OF AMICI CURIAE1

Amici Curiae are current and former United

States Capitol Police officers who, collectively, have

dedicated more than 150 years to their shared mission

to protect the United States Congress. On January 6,

2021, amici and their fellow law enforcement officers

risked their lives to defend the Capitol from a violent

attack, suffering significant physical and psychological injuries in the process. They were violently assaulted, spat on, tear-gassed, bear-sprayed, subjected

to racial slurs and epithets, and put in fear for their

lives. See Am. Compl. ¶¶ 157–64, Smith v. Trump,

No. 21-cv-2265 (D.D.C. Dec. 3, 2021).

In August 2021, amici filed a complaint in the

United States District Court for the District of Columbia against former President Donald J. Trump and

others involved in the January 6 attack on the Capitol. Smith v. Trump, No. 21-cv-2265 (D.D.C.). Among

other claims, amici assert that Mr. Trump and others

conspired to use force, intimidation, or threats to prevent Congress from certifying the results of the 2020

presidential election, in violation of the Ku Klux Klan

Act. That case is ongoing.

In Smith v. Trump, as here, Mr. Trump has argued that his statements leading up to and on January 6 urging people to forcibly prevent Congress from

certifying the results of the 2020 presidential election

are protected by the First Amendment. That is wrong,

1 No counsel for a party authored this brief in whole or in part,

and no person or entity other than amici curiae or their counsel

made a monetary contribution to this brief’s preparation or submission. See Sup. Ct. R. 37.6.

2

as the court in Smith v. Trump recognized. 2023 WL

417952, at *3 (D.D.C. Jan. 26, 2023).2 The First

Amendment does not immunize Mr. Trump from accountability for his behavior on and leading up to January 6, 2021.

Mr. Trump devotes scant attention to the First

Amendment issue in this case, yet a ruling by this

Court that Mr. Trump’s relevant actions are protected

by the First Amendment would have broad impact,

not only in Smith v. Trump and other civil and criminal cases stemming from the events of January 6, but

also in future civil and criminal cases concerning public unrest and the First Amendment. Ultimately, Mr.

Trump has failed to establish on the record before the

Court in this case that the First Amendment protects

the conduct relevant to the Colorado Supreme Court’s

determination. Amici take no position on the other

questions presented in this case.

2 Although Mr. Trump appealed the District Court’s denial of his

motion to dismiss based on his claim of presidential immunity,

he has not appealed the District Court’s rejection of his First

Amendment argument.

3

SUMMARY OF THE ARGUMENT

On January 6, 2021, then-President Donald J.

Trump stood before a crowd of over 50,000 people and

directed them to “walk down to the Capitol” with him

and “fight like hell” to “take back our country” because

the 2020 election had been stolen from him, a situation which, he said, allowed him and his supporters

“to go by very different rules.” Appendix to Petition

for Writ of Certiorari at 291a, 317a.3 Mr. Trump’s audience, primed by months of Mr. Trump’s relentless

and baseless attacks on the legitimacy of the 2020

presidential election, obeyed his orders and engaged

in an unprecedented assault on democracy. Mr.

Trump now claims that the First Amendment shields

him from any responsibility for the consequences of

his actions. There is no reasonable reading of the

First Amendment that confers freedom to engage in

insurrection.4

January 6 marked the violent culmination of a

months-long course of conduct designed to secure Mr.

Trump’s hold on power despite his defeat in the 2020

presidential election. Even before Election Day, Mr.

Trump had been claiming that the only way he could

lose the election was if it were “rigged.” Anderson v.

Griswold, 2023 WL 8770111, at *40 (Colo. Dec. 19,

3 On future reference, citations to the Appendix to Petition for

Writ of Certiorari, which contains Mr. Trump’s January 6

speech, will be identified by page number only.

4 Amici take no position on whether Respondents have adequately shown that Mr. Trump engaged in an insurrection under

Section Three of the Fourteenth Amendment. Amici’s brief is

limited to addressing the First Amendment issues raised in Mr.

Trump’s petition and brief. Pet. 28; Pet’r Br. 37.

4

2023). When confronted with the reality of his defeat,

Mr. Trump rejected the indisputable evidence he had

lost and immediately began working to persuade the

public that the election had been stolen. Without evidence, he repeatedly claimed that “Swing States” had

found “massive VOTER FRAUD.” Id. He sought to

pressure state officials across the nation to overturn

the election results, even calling local officeholders directly to persuade them to adopt his fictional narrative. Id. Mr. Trump’s public pressure campaign

against these officials had grave consequences, as he

intended it would: wide swaths of the public believed

his claims and joined in, threatening state officials

with harassment and violence. Id. at *41. Mr. Trump

was well aware of those activities and his role in instigating them. Id. Yet Mr. Trump disregarded the

growing swell of chaos and continued to “fan the

flames” of national discord anyway. Id. So-called

“Stop the Steal” rallies proliferated nationwide. Id.

Mr. Trump’s efforts to disrupt the post-election

process failed one after another. The date drew near

when Congress would certify the election results and

confirm President Biden’s victory in the election, as

the Constitution and the Electoral Count Act require.

Mr. Trump, still refusing to accept defeat, called for a

“[b]ig protest in D.C. on January 6,” the day Congress

would meet to certify the 2020 election results, infamously telling his supporters: “Be there, will be wild!”

Anderson, 2023 WL 8770111, at *41. Tens of thousands heeded his call, including members of violent

far-right extremist groups—whom he specifically

courted—and many individuals who came armed. Id.

at *41–42; see also id. at *47 (noting that Mr. Trump

“told the Proud Boys to ‘stand back and stand by’

5

during a debate for the 2020 presidential election”).

Mr. Trump had worked for months to fashion a

powder keg. On January 6, he threw the match. That

afternoon, Mr. Trump addressed the crowd he had

summoned to the Ellipse, just blocks away from the

Capitol, where Congress was certifying the election’s

results. He told those gathered before him to “confront this egregious assault on our democracy,” and

“show strength” or else “you’re not going to have a

country anymore.” Anderson, 2023 WL 8770111, at

*43. Mr. Trump’s audience did as it was told. Attackers breached the Capitol’s defenses, forced entry, and

temporarily obstructed Congress’s electoral vote

count. Id. In the process, the attackers violently assaulted amici and other Capitol Police officers, striking them and spraying them with toxic chemicals.

Am. Compl. ¶¶ 157–64, Smith, No. 21-cv-2265.

Based on Mr. Trump’s involvement in the January 6 attack, Respondents—a group of Colorado electors—challenged his eligibility to be on the State’s

2024 Republican presidential primary ballot, arguing

he was disqualified under Section Three of the Fourteenth Amendment because he “engaged in insurrection.” The Colorado Supreme Court agreed. Mr.

Trump’s defense, both below and before this Court,

rests in part on a claim that his participation in the

January 6 attack on the Capitol was protected First

Amendment expression and therefore cannot support

a finding that he engaged in insurrection. Pet’r Br.

37–38. That First Amendment defense fails for two

independent reasons.

First, the First Amendment does not protect

speech that forms an integral part of unlawful

6

activity. The Colorado courts did not disqualify Mr.

Trump from the ballot because of his speech, but rather because it found he had engaged in insurrection.

It is well settled that the First Amendment does not

shield a defendant from liability “merely because [his]

conduct was . . . carried out by means of language.”

Cal. Motor Transp. Co. v. Trucking Unlimited, 404

U.S. 508, 514 (1972) (citation omitted). To hold otherwise “would make it practically impossible ever to enforce laws against . . . many . . . agreements and conspiracies deemed injurious to society.” Id. (citation

omitted). Put differently, “[s]peech intended to bring

about a particular unlawful act has no social value;

therefore, it is unprotected.” United States v. Hansen,

599 U.S. 762, 783 (2023); see also United States v.

Miselis, 972 F.3d 518, 533 (4th Cir. 2020) (“Speech

taking some form other than abstract advocacy,” such

as conspiracy, solicitation, aiding and abetting, and

other civil and criminal misconduct, simply “doesn’t

implicate the First Amendment.”) (internal quotation

marks omitted). The speech at issue here—including

Mr. Trump’s explicit instructions to a vast crowd to

assault the Capitol and disrupt the proceedings of

Congress—is precisely the kind of speech that is excluded from the First Amendment’s protections.

Second, if the First Amendment is implicated at

all, it offers no protection for speech, like Mr. Trump’s,

that incites violence. In Brandenburg v. Ohio, 395

U.S. 444 (1969) (per curiam), this Court set forth a

test for determining when pure speech crosses the line

from protected expression to unprotected incitement

to violence. It held that advocacy may be lawfully proscribed where it “is directed to inciting or producing

imminent lawless action and is likely to incite or

7

produce such action.” Id. at 447. Mr. Trump’s January 6 speech was replete with “incendiary rhetoric”

such as calls to “fight,” “fight like hell,” and to “walk

down to the Capitol” to “take back our country!” Anderson v. Griswold, 2023 WL 8006216, at *21, *42

(Colo. Dist. Ct. Nov. 17, 2023). These words, interpreted as a “call to arms” by Mr. Trump’s audience,

exceeded the bounds of permissible speech. Id. at *21.

They exhorted the crowd to adopt any means necessary to stop the constitutionally required electoral certification process then underway. Violence and lawless action were not only likely to result from these

words—they actually did. Three law enforcement officers died, and many others were injured in the riot.

JA335, JA1330.

For these reasons, the First Amendment poses no

obstacle to the Colorado Supreme Court’s decision to

disqualify Mr. Trump from the ballot. This Court

should affirm the general principle that speech like

Mr. Trump’s, calling for and in service of the violence

seen at the Capitol on January 6, is not protected by

the Constitution.

ARGUMENT

I.

The First Amendment Is No Defense

Because Mr. Trump’s Speech Was Integral

to His Unlawful Activity

Speech integral to an alleged act of insurrection,

like Mr. Trump’s speech on and leading up to January

6, lies entirely outside the First Amendment’s ambit.

“First Amendment rights may not be used as the

means or the pretext for achieving ‘substantive evils’

which the legislature has the power to control.” Cal.

Motor Transp., 404 U.S. at 515 (quoting NAACP v.

8

Button, 371 U.S. 415, 444 (1963)). Accordingly, the

First Amendment does not shield a defendant from liability “merely because [his] conduct was in part initiated, evidenced, or carried out by means of language,

either spoken, written, or printed.” Id. at 514 (quoting

Giboney v. Empire Storage & Ice Co., 336 U.S. 490,

502 (1949)); United States v. Stevens, 559 U.S. 460,

468 (2010) (noting that “[f]rom 1791 to the present”

the First Amendment has permitted restrictions on

speech integral to misconduct) (citation omitted).

“[W]here speech becomes an integral part of” misconduct, “a First Amendment defense is foreclosed even

if the [claims] rest[] on words alone.” United States v.

Freeman, 761 F.2d 549, 551–52 (9th Cir. 1985) (Kennedy, J.).

The Court has applied this principle to numerous

forms of civil and criminal misconduct that are or can

be committed by speech alone. See United States v.

Williams, 553 U.S. 285, 298 (2008) (“Many long established criminal proscriptions—such as laws against

conspiracy, incitement, and solicitation—criminalize

speech . . . that is intended to induce or commence illegal activities.”) (citation omitted); Cal. Motor

Transp., 404 U.S. at 511–13, 515 (upholding civil antitrust conspiracy claim and rejecting argument that

defendants’ conduct involved advocacy protected by

the First Amendment). Consider, for example, the

“promotion of a particular piece of contraband,” “solicitation of unlawful employment,” or “picketing with

the sole, unlawful and immediate objective of inducing

a target to violate the law.” Hansen, 599 U.S. at 783

(cleaned up). To hold that the First Amendment protects such unlawful speech-acts “would make it practically impossible ever to enforce laws against . . .

9

agreements and conspiracies deemed injurious to society.” Giboney, 336 U.S. at 502. Significantly, the

rule that the First Amendment does not protect

speech integral to unlawful activity holds true “even

if [the speech] spring[s] from the anterior motive to

effect political or social change.” Freeman, 761 F.2d

at 551; see also Cal. Motor Transp., 404 U.S. at 513

(stating participants in unlawful activity “cannot acquire immunity by seeking refuge under the umbrella

of ‘political expression’”).

Courts around the country routinely reject defendants’ attempts to invoke the First Amendment to

avoid liability for misconduct involving, or even undertaken solely through, speech or expressive activity.

See, e.g., United States v. Mackey, 652 F. Supp. 3d 309,

340–41 (E.D.N.Y. 2023) (rejecting First Amendment

defense in case involving alleged conspiracy to spread

disinformation on Twitter during the 2016 election);

Sines v. Kessler, 558 F. Supp. 3d 250, 285–86 (W.D.

Va. 2021) (rejecting First Amendment defense to

claims of conspiracy to commit racial violence arising

out of 2017 Charlottesville rally). Courts have even

specifically considered and rejected the precise First

Amendment arguments Mr. Trump makes on essentially the same facts. See, e.g., United States v.

Trump, 2023 WL 8359833, at *15 (D.D.C. Dec. 1,

2023) (holding, in criminal case against Mr. Trump

arising from his efforts to overturn the 2020 election,

including the January 6 riot, that “prohibiting and

punishing speech integral to criminal conduct does

not raise any Constitutional problem”) (internal quotation marks omitted).

Under this Court’s precedents, the conduct at issue here, including its speech components, falls

10

squarely outside the bounds of the First Amendment.

Here, the Colorado Supreme Court defined “engag[ing] in” “insurrection” as “an overt and voluntary

act, done with the intent of aiding or furthering the

common unlawful purpose” of the “insurrection.” Anderson, 2023 WL 8770111, at *40; see also id. at *38

(defining “insurrection” as a “concerted and public use

of force or threat of force by a group of people to hinder

or prevent the U.S. government from taking the actions necessary to accomplish a peaceful transfer of

power in this country”). Engaging in an insurrection

may be accomplished through speech alone. Id. at *39

(“[W]hen a person has, by speech or by writing, incited

others to engage in rebellion, [h]e must come under

the disqualification.”) (quoting The Reconstruction

Acts, 12 Op. Att’y Gen. 182, 205 (1867)). Like other

unlawful speech-acts, such as solicitation (“the intentional encouragement of an unlawful act,” Hansen,

599 U.S. at 771), aiding and abetting (“the provision

of assistance to a wrongdoer with the intent to further

an offense’s commission,” id.), and conspiracy (“a joint

commitment to an ‘[unlawful] endeavor,’” Ocasio v.

United States, 578 U.S. 282, 287 (2016) (citation omitted)), engagement in insurrection, when committed

through speech, is a “speech-based offense[]” from

which “one is not immunized from prosecution . . .

merely because one commits [it] through the medium

of political speech,” United States v. Rahman, 189

F.3d 88, 117 (2d Cir. 1999) (per curiam).

In short, just as “solicitation of unlawful employment,” Hansen, 599 U.S. at 783, “a false statement

made to a Government official,” United States v. Alvarez, 567 U.S. 709, 720 (2012) (plurality), and speech

integral to a “conspir[acy] to monopolize trade and

11

commerce in the transportation of goods,” Cal. Motor

Transp., 404 U.S. at 509, are “unprotected,” so too is

Mr. Trump’s call to antidemocratic rioting. Hansen,

599 U.S. at 783. Far from mere advocacy, Mr.

Trump’s speech “has no social value,” is “intended to

bring about a particular unlawful act,” and is not protected by the First Amendment. Id. This Court

should hold, consistent with its precedents, that the

First Amendment does not apply to Mr. Trump’s

statements leading up to or on January 6 promoting

the attack on the Capitol.5

5 Even if only some of Mr. Trump’s statements were unprotected,

all of his statements could still be considered as evidence of his

intent to “prevent the U.S. government from taking the actions

necessary to accomplish a peaceful transfer of power.” Anderson,

2023 WL 8770111, at *38. “The First Amendment . . . does not

prohibit the evidentiary use of speech to establish the elements

of a[n] [offense] or to prove motive or intent.” Wisconsin v. Mitchell, 508 U.S. 476, 489 (1993); see also, e.g., Haupt v. United States,

330 U.S. 631, 642 (1947) (“[S]tatements showing . . . hostility to

the United States . . . clearly were admissible on the question of

intent” to commit treason); United States v. Pierce, 785 F.3d 832,

841 (2d Cir. 2015) (“[S]peech . . . [can be] used to establish the

existence of, and [the speaker’s] participation in, [an unlawful]

enterprise.”); United States v. Fullmer, 584 F.3d 132, 158 (3d Cir.

2009) (even “political speeches” can “provide circumstantial evidence from which a [factfinder] could . . . reasonably infer[] that

[the speaker] was involved in a conspiracy”); cf. NAACP v.

Claiborne Hardware Co., 458 U.S. 886, 926–27 (1982)

(“[S]peeches might be taken as evidence that [the speaker] gave

other specific instructions to carry out violent acts or threats.”).

In using Mr. Trump’s statements to assess his intent, the Colorado Supreme Court followed the many other courts that have

inferred nefarious intent from speech—including in cases arising

from the January 6 attack. See, e.g., United States v. Nordean,

2022 WL 17583799, at *17 (D.D.C. Dec. 11, 2022); United States

12

II. Mr. Trump’s Speech Is Not Protected

Under Brandenburg

In this case, Mr. Trump has argued that his

speech was protected under Brandenburg. It is not,

because Mr. Trump’s speech on and leading up to January 6 was integral to his participation in unlawful

conduct. See supra Section I. The Brandenburg analysis does not apply to unlawful acts, like engaging in

an insurrection, that merely happen to involve speech.

See United States v. Bell, 414 F.3d 474, 482 n.8 (3d

Cir. 2005) (“Brandenburg clearly does not apply to the

kind of unprotected or unlawful speech or speech-acts

(e.g., aiding and abetting, extortion, criminal solicitation, conspiracy, harassment, or fighting words) at issue”); Rice v. Paladin Enters., Inc., 128 F.3d 233, 265

(4th Cir. 1997) (explaining that Brandenburg does not

apply “to speech other than advocacy”). But even if

this Court were to conclude that Brandenburg is the

appropriate framework to evaluate Mr. Trump’s statements, his First Amendment defense still fails.

The First Amendment draws a “line between permissible advocacy and impermissible incitation to

crime or violence.” R.A.V. v. City of St. Paul, 505 U.S.

377, 420 (1992) (Stevens, J., concurring in the judgment) (citation omitted). Brandenburg makes clear

that the First Amendment does not protect speech

that “is directed to inciting or producing imminent

lawless action and is likely to incite or produce such

v. Robertson, 588 F. Supp. 3d 114, 124 (D.D.C. 2022), aff’d, 86

F.4th 355 (D.C. Cir. 2023); United States v. DeGrave, 539 F.

Supp. 3d 184, 209 (D.D.C. 2021); United States v. Chansley, 525

F. Supp. 3d 151, 164 (D.D.C. 2021).

13

action.” 395 U.S. at 447. It makes no difference

whether speech implicitly or explicitly encourages

lawless action; either may constitute incitement. See

Hess v. Indiana, 414 U.S. 105, 109 (1973) (per curiam)

(applying Brandenburg and looking for any “rational

inference” from “the import of the language” that the

speech was intended to or likely to lead to violence).

Mr. Trump’s January 6 speech bears all the hallmarks of incitement. Starting with the lead-up to

January 6, Mr. Trump had already stoked feelings of

distrust and anger among his supporters with respect

to the legitimacy of the 2020 presidential election. Anderson, 2023 WL 8770111, at *47. Before and after

the 2020 election, Mr. Trump told his supporters that

the only way he could lose “is if the election is rigged.”

Id. at *48. He claimed that Democrats had stolen the

election from him, and that the results were “a fraud

on the American public.” Id. It is against this backdrop that Mr. Trump invited his followers to Washington, D.C., on January 6, exhorting them to “[b]e there”

because it “will be wild.” Id. at *41; see Young v. Am.

Mini Theatres, Inc., 427 U.S. 50, 66 (1976) (plurality

opinion) (“[T]he line between permissible advocacy

and impermissible incitation to crime or violence depends . . . on the setting in which the speech occurs,”

as well as “on exactly what the speaker had to say.”);

FCC v. Pacifica Found., 438 U.S. 726, 744 (1978)

(“[B]oth the content and the context of speech are critical elements of First Amendment analysis.”).

When Mr. Trump stepped up to the podium on

January 6 to deliver his speech, Congress was preparing to convene at the Capitol—just a short walk

away—to certify the electoral count and to declare the

winner of the presidential election based on that

14

count. See Anderson, 2023 WL 8770111, at *42–43.

Mr. Trump knew that at least some attendees were

prepared for violence, were willing to fight, and would

perceive his words as a call to action. See id. at *49–

50. Nevertheless, Mr. Trump made the following

statements:



Mr. Trump declared that “[w]hen you catch

somebody in a fraud, you’re allowed to go by

very different rules. . . . And if you don’t fight

like hell, you’re not going to have a country

anymore.” Id. at *43; 313a.



When informed that people were chanting

“Hang Mike Pence,” Mr. Trump “responded

that perhaps the Vice President deserved to

be hanged.” Anderson, 2023 WL 8770111, at

*43.



Mr. Trump also told the crowd: “[A]fter this,

we’re going to walk down, and I’ll be there

with you . . . . [W]e’re going to walk down to

the Capitol . . . . [Y]ou’ll never take back our

country with weakness. You have to show

strength and you have to be strong.” Id. at

*43; 291a.



Mr. Trump exhorted the mob to “walk down

Pennsylvania Avenue” to give “weak” Republicans “pride and boldness . . . to take back our

country.” 317a.



Mr. Trump told the crowd at the January 6

rally that “[w]e will never give up” or “concede,” 286a, because “[y]ou don’t concede

when there’s theft involved,” Anderson, 2023

WL 8770111, at *48; 286a, and “[w]e must

15

stop the steal and then we must ensure that

such outrageous election fraud never happens

again, can never be allowed to happen again,”

314a.

On the basis of these and other statements before,

during, and after Mr. Trump’s speech, both the Colorado District Court and the Colorado Supreme Court

determined that Brandenburg was satisfied.6 See Anderson, 2023 WL 8006216, at *41–43; Anderson, 2023

WL 8770111, at *46–51. The “obvious and unmistakable” message of Mr. Trump’s speech was that his audience had “an obligation to fight back and to fight aggressively.” Anderson, 2023 WL 8770111, at *48. And

Mr. Trump’s words evinced an intent to spur “his

riled-up supporters to walk down to the Capitol and

fight.” Id. at *50. The likely effect of these words was

to cause imminent lawlessness and violence. Id. That

danger was not just likely: Mr. Trump got the “fight”

that he asked for. As detailed in a staff report published by the Senate Committee on Homeland Security and Governmental Affairs and the Senate Committee on Rules and Administration, “[t]hroughout

the seven hours of the riot on the Capitol grounds, law

enforcement officers faced verbal and absolutely brutal, violent physical abuse.” JA1328 (internal quotation marks omitted). Amici were among the law enforcement officers targeted with such brutal violence.

6 Other courts have agreed that Mr. Trump’s speech was both

directed to inciting and likely to incite violence and imminent

lawless action. See Thompson v. Trump, 590 F. Supp. 3d 46, 118

(D.D.C. 2022) (Mr. Trump’s speech was “plausibly . . . a ‘positive

instigation of a mischievous act.’”) (quoting John Stuart Mill, On

Liberty 100 (London, John W. Parker & Son, 2d ed. 1859)).

16

Mr. Trump offers three arguments as to why his

statements are not incitement under Brandenburg.

All three are without merit.

First, Mr. Trump argues that “[t]he Brandenburg

standard does not turn on whether violence actually

occurs in response to a person’s speech.” Pet’r Br. 37.

But, although actual violence is not a prerequisite for

finding speech “likely” to incite violence, the fact that

violence in fact occurred on January 6 plainly supports a finding that it was likely to occur. In Claiborne

Hardware, the Court held that defendant Charles

Evers’ speeches “did not transcend the bounds of protected speech set forth in Brandenburg,” but observed

that “[i]f [they] had been followed by acts of violence,

a substantial question would be presented whether

[he] could be held liable for the consequences of that

unlawful conduct.” 458 U.S. at 928.

Second, Mr. Trump argues that rhetorical appeals

to “fight like hell” and “take back our country” are

“common in political discourse.” Pet’r Br. 37. But Mr.

Trump’s speech to an assembled and armed crowd

went beyond abstract appeals to “fight” for a cause

and instead directed his audience specifically to “walk

down to the Capitol” where they should “show

strength” and not be afraid to ignore the usual “rules.”

Anderson, 2023 WL 8770111, at *43; 291a, 313a. Indeed, Mr. Trump invited his supporters to come to

Washington, D.C., on the day Congress was to certify

the electoral count, knowing that they would understand his exhortations as calls for violence to disrupt

certification. See Anderson, 2023 WL 8770111, at *50

(“Professor Simi . . . identified a pattern of calls for

violence that his supporters responded to, and explained how that long experience allowed [President]

17

Trump to know how his supporters responded to his

calls for violence using a shared language[.]”). While

calls to “fight” for a cause are “common” in political

rhetoric, Mr. Trump’s words were “directed to inciting

or producing imminent lawless action.” Brandenburg,

395 U.S. at 447 (emphasis added). Mr. Trump also

himself disclaimed the “common” implication of his

use of the word “fight” when he told his audience that

the alleged election fraud permitted them “to go by

very different rules.” 313a. This sort of call for violence by a presidential candidate for a major political

party is not only uncommon, it is unprecedented.

Third, Mr. Trump argues that “[a]n inquiry into a

speaker’s intent can never” transform protected

speech into unprotected speech, criticizing the Colorado courts for their reliance on Professor Peter Simi’s

testimony about intent. See Pet’r Br. 37–38. But

Brandenburg and its progeny make clear that intent

is key to determining whether speech is protected or

not. See Brandenburg, 395 U.S. at 447 (looking to

whether “advocacy is directed to inciting or producing

imminent lawless action”); see also Counterman v.

Colorado, 600 U.S. 66, 76 (2023) (“[T]he First Amendment precludes punishment, whether civil or criminal, unless the speaker’s words were intended (not

just likely) to produce imminent disorder.”) (internal

quotation marks omitted); Hess, 414 U.S. at 109 (holding words can “be punished by the State” when they

are “intended to produce, and likely to produce, imminent disorder”) (emphasis added). Mr. Trump’s contention that intent may be used only “as a shield for

speakers who are accused of constitutionally unprotected utterances,” Pet’r Br. 38, would vitiate Brandenburg’s incitement doctrine, under which the State

18

may impose liability upon a finding of intent to produce violence or disorder.

Thus, even if Mr. Trump’s speech is treated as

subject to the Brandenburg inquiry, Brandenburg offers no safe harbor.

CONCLUSION

For these reasons, this Court should reject Mr.

Trump’s First Amendment defenses to the question of

whether he engaged in insurrection and should be disqualified from being listed on the 2024 presidential

primary ballot under Section Three of the Fourteenth

Amendment.

Respectfully submitted,

Lauren M. Blas

Counsel of Record

Katherine Marquart

GIBSON, DUNN & CRUTCHER LLP

333 South Grand Avenue

Los Angeles, CA 90071

(213) 229-7000

LBlas@gibsondunn.com

Lee R. Crain

Connor S. Sullivan

Mark J. Cherry

Alexandra Perloff-Giles

Brian Yeh

Sasha Dudding

Iason Togias

GIBSON, DUNN & CRUTCHER LLP

200 Park Avenue

New York, NY 10166

(212) 351-4000

Damon Hewitt*

Jon M. Greenbaum

Edward G. Caspar

Marc P. Epstein

LAWYERS’ COMMITTEE FOR

CIVIL RIGHTS UNDER LAW

1500 K St. NW, Suite 900

Washington, D.C. 20005

(202) 662-8600

William J. Blechman

Elizabeth B. Honkonen

KENNY NACHWALTER, P.A.

1441 Brickell Avenue, Suite 1100

Miami, FL 33131

(305) 373-1000

* Admitted in Pennsylvania only.

Practice limited to matters before

federal courts.

Counsel for Amici Curiae

January 31, 2024