Late last week some bad legal journalism about Donald Trump inspired a flurry of outrage, drama, and triumphalism. To their credit, many of the media outlets and journalists have since corrected misleading headlines and stories, but some survive. Take (if you must) The Independent:
Or Us Weekly.
This is bad legal journalism.
Here's what really happened.
In 2016 three plaintiffs, Kashiya Nwanguma, Molly Shah, and Henry Brousseau, sued Donald Trump Donald J. Trump for President Inc., and some associated individuals, claiming that through his comments to supporters at a March 1, 2016 rally in Louisville, Kentucky, Trump incited supporters to assault the plaintiffs. Plaintiffs filed their complaint in Kentucky state court; you can read it here. Trump removed the case to federal court — that is, he took advantage of a federal statute that allows a defendant to move a case from state court to federal court when the plaintiffs and defendants are from different states and the amount at issue is over a threshold. Trump (along with other defendants) then filed a motion to dismiss the complaint under Rule 12(b)(6) of the Federal Rules of Civil Procedure, arguing that the facts asserted in the complaint — even if true — do not create a valid claim. The plaintiffs filed an opposition, naturally. Last week the federal judge on the case denied the motion, finding that the factual allegations in the complaint — if true — might support a claim.
The judge did not, by any stretch of the imagination, make any finding or decision about what Donald Trump did or said, or about whether what Donald Trump did or said was "incitement." Journalists who said otherwise (or editors who wrote shoddy headlines) are ignorant, lazy, or dishonest.
A federal motion to dismiss under Rule 12(b)(6) might be described as saying "so what if I did" — the court takes facts stated in the complaint is true and determines whether they are legally sufficient to support a claim. A judge doesn't take conclusions at face value, but must accept facts in the complaint as true. Think of the distinction like this: if my complaint just says "Patrick defrauded me," the judge doesn't have to take it as true, and can find it insufficient. But if my complaint states the underlying facts — "Patrick offered to sell me a horse, and I gave him $10 for the horse, and when he delivered it, it was a pony," the court must accept it as true and determine whether that's fraud. The Supreme Court has complicated the issue a bit by saying that the allegations must be plausible, but that only means that the complaint must contain factual content that supports necessary inferences supporting the claim. So, for instance, if I said "Patrick conspired to hide a pony in my room, I know because Patrick hates me, and yesterday I found a pony in my room" might not be plausible, because it does not plead any facts supporting my accusation that Patrick is responsible for the pony. But "Patrick told associates to 'introduce Ken to my little friend Benny The Hoof,' and the next day I found a pony in my room," that's factual pleading that is plausible.
In short, denying a motion to dismiss doesn't mean that the federal judge found that the defendant did anything wrong. It just means that the plaintiff successfully listed facts that, if accepted as true, would mean the defendant did something wrong.
Here, the judge did not find that Donald Trump incited anyone to anything. The judge simply found that (1) the complaint attributed words to Trump that could be taken as incitement given proof, and (2) if the assertions in the complaint are accepted as true, then Trump's words were not protected by the First Amendment because they advocated imminent lawless action. The judge did not find that Trump's words were incitement, or were outside the First Amendment. The judge simply found that the well-pleaded complaint asserted facts that, if accepted, could lead to that conclusion.
Bad legal journalism helps contribute to a civically illiterate populace. Journalists can and should do better. Boo. Hiss.
Last 5 posts by Ken White
- Free Speech Triumphant Or Free Speech In Retreat? - June 21st, 2017
- The Power To Generate Crimes Rather Than Merely Investigate Them - June 19th, 2017
- Free Speech, The Goose, And The Gander - June 17th, 2017
- Free Speech Tropes In The LA Times - June 8th, 2017
- I write letters - June 1st, 2017