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Can Trump Be Sued for Inciting Violence at a Rally?

TrumpTrump is in hot water yet again, but this time, for something he said during one of his campaign rallies before elected into office.

On March 1, 2016, Trump held a campaign rally in Louisville, Kentucky at the Kentucky International Convention Center. Three protestors were singled out during the campaign when Trump pointed to the protestors and instructed his supporters to “Get ‘em out of here,” which he repeated several times.  The three were then physically attacked. Trump then added, “Don’t hurt ‘em. If I say ‘go get ‘em,’ I get in trouble with the press.’” The protestors sustained personal injuries by being shoved and punched by Trump supporters. They sued Trump for incitement.

Trump’s lawyers filed a motion to have the case thrown out, arguing that what he said was protected free speech under the U.S. Constitution and that he wasn’t actually speaking to the crowd that night when he instructed them to “get ‘em out of here.” The Kentucky U.S. District Judge David J. Hale was unpersuaded and allowed the case to proceed.

What is Incitement?

In laymen terms, inciting violence means a person encourages, provokes or urges violence upon another. It requires somebody to actively urge violence against particular individuals.

The main question for incitement is whether the speech in question purposely and clearly directs others to commit an act of violence against another individual. The government can only punish speech if there is a “substantial likelihood of imminent illegal activity and if the speech is directed to causing imminent illegality.”

Incitement Analysis

To analyze what is incitement, we must first look to what it isn’t. Let’s take this scenario where three protestors interrupt one of Trump’s campaign rallies. Instead of directing the crowd to “get ‘em out of here,” he asks them, “Where’s the exit?” Would that be incitement?

In that scenario, no. While his intent may have been to encourage his supporters to find the exit and kick the protestors out, he would’ve simply asked a harmless question about the location of the exit. Since he wouldn’t have directed or urged them to act violently, incitement wouldn’t be found.

Let’s take the same scenario. What if Trump not only told his supporters to “get [the protestors] out of here,” but he said to a specific group of people in the crowd, “Kick [the protestors] in the stomach” and “Punch them in the face on the way out!” That would be a clear example of inciting violence. In this hypothetical, he would have told specific people in the crowd to act violently against the protestors.

Why the Judge Didn’t Dismiss the Case

Trump’s attorneys cited two main arguments for why the case should’ve been dismissed: Trump’s speech was protected free speech, and that he never directed the crowd to become violent. He argued that his insistence to “get ‘em out of here” was directed to his security guards. Judge Hale didn’t buy it.

Judge Hale looked at numerous Trump campaign speeches that were submitted into evidence by plaintiffs to demonstrate a pattern of Trump asking his audience to act violently.  Among the examples were pleas by Trump in a 2015 Alabama campaign rally that a protestor “maybe…should have been roughed up”  and a 2016 rally in Iowa when Trump instructed the crowd to “knock the crap out of” anyone getting ready to throw a tomato. In one rally in Michigan, he asked a protestor to be removed and urged the crowd not to hurt him, but then added, “If you do, I’ll defend you in court. Don’t worry about it.” This is our President, people.

Will Incitement be Found?

Procedurally, Judge Hale’s decision can be reversed on appeal. Trump’s attorneys would have to convince the appellate judge that Trump was not directing the speech at his campaign crowd. While that certainly may be true, Trump has teetered on the edge of encouraging violence at his rallies throughout his campaign. A judge could easily adopt Judge Hale’s thinking and reject Trump’s defense.

Whether incitement will ultimately be found would require a detailed analysis of the facts of this particular case. Either way, chances are this is not the last time we will see Trump in court for something he did or said during his presidency.

Trump Repeals Internet Privacy

For someone who ran for President on a platform promising to “Make America Great Again,” he sure has done a lot of things to make Americans feel like we’ve moved backward, not forward. Since January 20th, President Trump has turned away refugees, encouraged the defunding of Planned Parenthood, and acted personally and professionally sexist toward women. His new bill that he quietly signed into law repeals internet privacy rules passed last year by the Federal Communications Commission (“FCC”) under the Obama administration. It seems like another huge step backward.

TrumpWhat Did the Internet Privacy Law Do?

Adopted on October 27, 2016 and issued on November 2, 2016, the FCC established a rule that protected the privacy of customers of broadband and other telecommunication services. It also gave broadband customers more choices, transparency, and security over their personal data. The rule empowered users to decide how data was used and shared by broadband providers. In other words, it forced internet service providers (Comcast, Xfinity, AT&T, and Verizon, to name a few) to ask consumers before it collected certain personal information.

Why Is the Privacy Rule Important?

The rule has not gone into effect yet, and it won’t go into effect now that Trump has repealed it. However, the law was intended to require more transparency by internet service providers. Companies use data to target advertising. This is known as data mining, sometimes known as data or knowledge discovery. It is the process of analyzing data and summarizing it into useful information. The information is then sold from the internet service providers to specific companies that target their advertising to the consumer based on their data.

That was complicated, so let me give you an example. I’m a new mom and my internet service provider can ascertain this information through my search habits. Let’s say they sell that information to Babies R’ Us, Carter’s, and other baby stores, who then sends me coupons for various deals on car seats, baby toys, and diapers. My internet service provider just profited off of invading my privacy.

Why We Haven’t Heard about the Law

Trump has been acting like a bull in a china shop, signing controversial executive orders with big hoopla and making unfounded allegations about his predecessor President Obama. Why, then, have we heard very little about his decision to repeal the internet privacy law, especially when it has such a huge effect on the American people?

It seems that the Trump administration tries to sneak anything controversial or unpopular quietly into law. That way, there’s less backlash.

Should We Be Worried about Net Neutrality?

In 2014, the FCC released a plan that would have allowed internet service providers such as AT&T, Comcast and Verizon to charge more depending on what the consumer uses. For instance, instead of providing things like Facebook and Youtube for free so long as you have internet access, big companies want to sell package deals that allow one access to Facebook and Youtube only if they use their company and buy a particular package. The proposal was met with so much resistance that it was shelved.

Net neutrality is the principle that treats all websites and services the same. Specifically, it prevents certain internet service providers from charging more for specific content. It prevents companies like Comcast from charging users for a package subscription to Netflix and Hulu.

People are concerned that Trump’s repeal is just one step away from the end of net neutrality, and they should be concerned. Trump is a well-known businessman. His failed Trumpcare attempted to create huge tax breaks for the super wealthy. He’s appointed cabinet members who primarily favor big business. It should come as no surprise that this President may attack net neutrality when he has consistently shown preferential treatment toward big business at the expense of “the little people.”

United Faces a Beating… in Court

Over the last week, the news (and many videos) of one Dr. David Dao being brutally attacked by Aviation Security Officers and dragged from his legally purchased seat on United Flight 3411 has been absolutely everywhere.  The incident has caused a firestorm of public outrage against United.

For those who have not seen the videos or read the news, passengers of Flight 3411 from Chicago to Louisville were told before boarding that the flight had been overbooked (United had sold more tickets to the flight than there were seats on the plane) and asked for volunteers to take $400 and a hotel stay to take a flight the following day.  This was apparently resolved, and the passengers were allowed to board the plane.  However, after the flight was boarded, United decided that it wanted four seats to fly employees to Louisville for their work on a flight the following day–it should be noted that the drive to Louisville is just over four hours.  United again requested volunteers to get off the plane, then when nobody was willing upped their offer to $800.  However, there was still nobody willing to get off.   Finally, United had a computer randomly select people to be kicked off the plane.  Dr. Dao was one member of the second couple to be randomly selected.

Dr. Dao refused to get off the plane and security was called to remove him–and remove him they did.  The footage from the many recordings made by other passengers on the flight show Dr. Dao’s head being slammed into the armrest next to him before he is pulled from his seat and, as onlookers scream in horror, his motionless form is dragged down the aisle of the plane–mouth bleeding, glasses askew, and shirt riding up his belly.  After this happened, the passengers were all removed from the plane so United employees could clean up the blood before the plane took off.

Since then, Dr. Dao has retained attorneys and has filed a motion to preserve evidence from the incident for a future lawsuit.  His attorneys report that he suffered a concussion, lost two front teeth, had his nose broken, and his sinuses were so badly damaged that he will require reconstructive surgery.

So the question is, how the heck did this happen in the first place?  The answer may surprise you, airlines have an enormous amount of leeway in a post-9/11 world.  So, with this in mind, let’s look at the law here and Dr. Dao’s chances in his upcoming lawsuit.

Airlines Overbooking and Booting Paying Customers

As anybody who’s flown in the last few years can attest, overbooking flights is an extremely common practice nowadays.  The heartbreak and annoyance of buying a ticket months in advance then being told that an airline sold more tickets than there were seats happens all the time-but it rarely escalates as far as it did in this case.

Almost every major airline currently intentionally overbooks the majority of its flights for the simple reason that it usually makes them more money than it loses them–despite how awful that is from a customer service standpoint.  The reason for this is not only the careful algorithms these airlines apply to overselling their flights, but also because these airlines are protected under both the contract you agree to and-believe it or not-federal law.

First and foremost, when you buy a ticket you are essentially agreeing to a contract with the airlines.  You best believe this contract gives the airlines enormous leeway to, among many other things, boot you off a plane.

United’s contract, a behemoth at just a bit over 37,000 words long, specifically says that when a flight is oversold passengers may be “denied boarding involuntarily.”  Overbooked is defined in their contract as when there are more passengers with valid confirmed tickets than seats before check-in time.  “Passenger” is defined as any non-crew person holding a confirmed registration.  The contract also gives them the right to boot disruptive or violent passengers–or to boot passengers for any number of other reasons.

When you buy an airplane ticket, you’re usually agreeing to something like this–United or no.  In fact, almost every major airline–with the notable exceptions of JetBlue and Virgin America–have some sort of provision allowing them to “deny boarding involuntarily.”

Code of Federal Regulations § 250.5–titled “Amount of denied boarding compensation for passengers denied boarding involuntarily”–not only allows this but substantially limits the amount an airline needs to pay out to a booted customer.  This makes overbooking even more appealing to airlines.  All the provisions require is that any involuntarily booted passenger be provided notice in writing (see the contract you totally read when you bought the ticket) and they are compensated.  However, compensation is limited to a maximum of 200% of the one way value of the ticket ($675 maximum) if the airline offers alternative transportation and 400% ($1,350 maximum) if they don’t.  If the alternative transportation is less than an hour away–they don’t have to give you anything.  They can even offer you vouchers for their own flights in lieu of cash or check in some situations–read most situations.

This is pretty cheap for the rare occasion where the airlines actually have to pay out, so it’s no surprise they aren’t shy about overbooking.  Since the United incident occurred, the Department of Transportation has said that they are reviewing whether overbooking rules were followed here–but they doubled down on the legality of bumping passengers and are not reviewing the rule in place.

UnitedDr. Dao’s Lawsuit

So, United can bump people off planes.  They can even do it involuntarily.  However, you’ll notice that there are a few issues in their contract that are definitely going to come up in any lawsuit with Dr. Dao.

First, they are allowed to boot passengers where a plane is overbooked–but was the plane overbooked by their own definition?  There were the exact same number of paying customers as there were seats, United just wanted to jam in four of its employees.  The question is, were these employees passengers?  If they count as crew they definitely were not.  What’s more, if they didn’t have a boarding pass at time of check-in it’s unlikely they’d count as a passenger.  If the flight wasn’t overbooked, then United didn’t have the right to boot Dr. Dao in the first place.  If Dr. Dao was being disruptive or belligerent, United may still have grounds under their contract to remove him from the plane.  However, despite the police report describing him as “irate” the videos and passenger accounts put him calmly on the phone with what turned out to be his attorney.  There is some question over the mere act of refusing to disembark from the plane was sufficient to give United grounds under their contract to remove Dr. Dao.

This being said, if remove Dr. Dao from the plane was all United did this would be much less of a media explosion–the Aviation Security Officers seriously injured Dr. Dao.  The contract you sign with United absolutely does not give them the right to assault, batter, or intentionally inflict emotional distress upon a passenger.    These are all civil torts which could Dr. Dao could use as a cause of action against United.

However, even these actions might have a bit of a hiccup.  The question would become whether the Aviation Secutity Officers acted as agents of the airline or in their own independent capacity as police officers.  If the officers were not acting as agents of the airline-or it can found that the airline sanctioned them to use such force in removing Dr. Dao-then the airline is unlikely to be held liable for the actions of their officers.

In this case, Dr. Dao may need to sue the police department of Chicago itself.  One would expect that, if and when a lawsuit finally does come there would be lawsuits target both United and the police department.  Police acting in their official capacity enjoy a certain level of immunity to lawsuits.  However, if it can be shown that the use of force was excessive here–an analysis made by looking at, among other things, standard police procedure and the level of threat posed by a suspect–Dr. Dao may still be able to bring a case.

Since the incident, the three Aviation Security Officers who attacked Dr. Dao have been placed on paid leave.  However, it is worth noting that the general procedure for the security officers is to–where there is no imminent threat–contain the situation until the officers from the Chicago Police Department arrive.  In fact, according to a deputy commissioner overseeing airport security, the protocol for Aviation Security Officers is apparently to not even go on the plane if it’s a customer service issue.  While at least one of the Aviation Security Officers wore a jacket reading “police,” they are not actual police officers and the practice of wearing such a jacket was banned a few months back.

All of this points to excessive force, a situation unnecessarily escalated in violation of standard protocol.  This would strengthen any case brought by Dr. Dao.

Almost Certain to Settle

You can see that, while Dr. Dao has several causes of action with merit, none of them are without their issues.  However, it’s very unlikely to reach that point.  This whole situation has been a PR nightmare for United and they have been judged in the court of public opinion–this is not the sort of case they are likely to want to bring before a jury.  Dollars to donuts says a settlement will be forthcoming.

Since the video hit the internet, United lost around a billion dollars in value before recovering to a mere quarter of a billion loss.  The CEO of United, Oscar Munoz, has been all over the news apologizing for the incident, although he has been doing a fairly poor job of it–first describing Dr. Dao’s beating as a “re-accomodation,” then telling United employees he thinks they did nothing wrong and calling Dr. Dao “belligerent”, then finally making an unequivocal apology.  He’s since been on television promising that United would never again let law enforcement remove a “booked, paid, seated passenger”–although he had no promises regarding overbooking in general.  Mr. Munoz has also publically stated that Dr. Dao cannot be at fault for what happened and should not have been treated like he was.  These are not the responses of somebody looking to go the long haul on a lawsuit with Dr. Dao.  I would expect a settlement to hit the news sooner rather than later.

H.R. 861 and H.R. 899: the End of the EPA and the Dept of Education

On February 3, 2017, the House of Representatives presented H.R. 861. The bill proposes to terminate the Environmental Protection Agency by December 31, 2018. On February 8, the House of Representatives also presented bill H.R. 899, a bill that proposes to terminate the Department of Education by December 31, 2018.

H.R. 861 and H.R. 899Environmental Protection Agency

The Environmental Protection Agency (“EPA”) was proposed under President Nixon in 1970 and approved by the House of Representatives and the Senate. The goal of the EPA was to make “the 1970s a historic period when, by conscious choice, [we] transform our land into what we want it to become.” The EPA’s mission is simple: to protect human health and the environment.  It is run by an agency of the Federal Government which writes and enforces environmental regulations based on laws passed by Congress. The EPA also gives grants to state environmental programs, non-profits, and educational institutions with the underlying purpose of protecting human health and the environment.

EPA Most Notable Accomplishments

You’ve probably heard of the Clean Air Act, a federal law designed to control air pollution. The Act is one of the most comprehensive air quality laws in the world and is administered and enforced by the EPA.

The Energy Star Program was launched by the EPA in 1992. It’s a voluntary program that encourages energy efficiency among various products such as major appliances, office equipment, lighting, home electronics and more.

Most recently, the EPA has been involved in researching the effects of climate change. The topic is controversial because many members of the GOP refuse to believe climate change exists, including our own President.

Department of Education

The Department of Education was signed into law by President Jimmy Carter in 1979 and began operating in 1980. It is administered by the U.S. Secretary of Education. The current Secretary of Education is Betsy DeVos. The Department has approximately 4,400 employees and its annual budget was $68 billion in 2016.

It’s a common misnomer that the Department of Education establishes schools and colleges. It does not. Instead, the primary function is to “establish policy for, administer and coordinate most federal assistance to education, collect data on U.S. schools, and to enforce federal educational laws regarding privacy and civil rights.” Its mission is to promote student achievement and preparation for global competitiveness by fostering education excellence and ensuring equal access.

Department of Education Notable Accomplishments

The Department of Education is responsible for gathering data to assess how well certain programs and grants are working. It also awards Pell grants federal financial aid through loans. With the rising cost of public education, more students than ever rely on financial aid to fund their education. An overwhelming majority of full-time undergraduate students at four-year colleges receive financial aid.

The Department also oversees and protects disadvantaged children from receiving sub-par education.

How to Pass the Bills

A bill becomes a law when it passes first through the House and then the Senate. A simple majority of the House (at least 218 votes) and the Senate (at least 51 votes) need to approve the bill for it to become law. Finally, the President must sign the bill into law, but the President can veto the bills and neither would become laws.

What Happens if the EPA and Department of Education Are Terminated?

All the advantages that the EPA and Department of Education provides would cease to exist. That means we would no longer fight climate change. It also means that financial aid would not be provided to students on a federal level. Students would have to rely on their individual states to help fund their education, which receives far less money. In turn, it will become harder for students to fund their education. And the disadvantaged youth of our nation will be left behind, with the wealthy receiving superior education and the struggling receiving sub-par education.

Trump U: $25M Settlement in University’s Fraud Case

Back in Novemeber of last year, now-President Trump agreed to settle a class-action fraud case against him for a whopping $25 million.  Now, months later, Judge Gonzalo Curiel-the same judge President Trump accused of prejudice for being “Mexican” (the Honorable Judge Curiel was born in Indiana)-has finally given approval for the settlement to go through.

You’re probably wondering to yourself why the settlement took so long to go through.  The answer is that, like most settlements, the settlement paid out to the many plaintiffs but admitted no fault whatsoever on the part of Trump.  For at least one plaintiff, a Ms. Sherri Simpson, this was not enough.  She felt that she wasn’t given enough of a chance to opt-out of the class action (choose to sue Trump on her own) and she has been challenging the settlement as insufficient.  Ms. Simpson wanted to see criminal racketeering charges brought against Trump and felt that she deserved at least an apology from Trump.  Ms. Simpson was quoted as saying “for him to out there and say, well ‘I didn’t do anything wrong’ it’s disgusting…I want an apology.

After much deliberation on the issue, Judge Curiel has finally determined that the settlement offer is fair-it’s around two-thirds of all the profits Trump University ever made and five times what Trump himself took in-for the entire class of plaintiffs including Ms. Simpson.  However, for those who have forgotten some of the details of the Trump U fraud case, let’s take a look at the charges brought against President Trump and why Ms. Simpson may have wanted to see some culpability on the part of President Trump.

Trump UTrump Accused of Fraud

Starting in 2005, Trump provided seminars of “Trump University” which–first and foremost–was not a university.  As soon as the “university” was established, the New York State Education Department warned Trump that he was violating New York law by failing to receive a license to operate as a school.  Trump never paid any attention to these warnings, despite a second warning in 2010, but ultimately changed the name of the business to the Trump Entrepreneur Initiative (TEI).

However, in the case itself the issues of education law violations were set aside in favor of the most important charges against Trump–fraud.  The complaints against Trump U from plaintiffs essentially alleged that, beyond providing nothing of benefit, nearly every advertised feature of the classes was untrue.  They sued under New York Executive Law 63.12, defining fraud as any “device, scheme or artifice to defraud and any deception, misrepresentation, concealment, suppression, false pretense, false promise or unconscionable contractual provisions.” The law provides remedies for ongoing and persistent cases of fraud.

TEI advertised teachers handpicked by Trump, but when asked at deposition Trump couldn’t name a single teacher at his “school.”  It became clear that Trump had had no connection to any teacher from his seminars.

While TEI was advertised as revealing Trump’s business secrets, it turned out that Trump himself had never reviewed any of the materials for Trump University whatsoever-instead allowing a third-party company (which primarily focused on making materials for motivational speaking and timeshare seminars) to design the full curriculum.  This curriculum included such riveting secrets as looking at the IRS website to learn about taxes.  In fact, many of the plaintiffs complaints revolved around the majority of the information in the curriculum–for classes which were sometimes as expensive as $35,000–being easily accessible on the internet.

TEI also promised access to private lenders, financing, a year-long apprenticeship support program, and even promised to improve the credit scores of its students.  None of these promises ever materialized.

Instead of curriculum, the “Playbook” to TEI (basically an operations manual) was focused on upselling more TEI services.  It included nothing about presentations, speakers, or teaching points.  Instead, it focused on advising employees to avoid all reporters, providing sales tactics and how to respond if a district attorney ever showed up.

So as you can see, the allegations and facts certainly seem to include false promises aplenty in Trump University–making a strong case under Executive Law 63.12.  Judge Curiel had already ruled that Trump himself could be held personally liable for fraud should the case succeed, although the statute of limitations only allowed claims for the last six years of operation.  An especially large issue since TEI closed its doors in 2011.  However, should the case have succeeded, a personally liable Trump had more at stake than you might have expected.

Why Simpson May Have Wanted to Go Further–And Why Trump Was Quick to Settle

When Trump initially settled the case, he characterized the choice to settle as a cheap way to remove an inconvenience.  He tweeted out ” “I settled the Trump University lawsuit for a small fraction of the potential award because as President I have to focus on our country.”  However, $25M is far from a small fraction of the award as mentioned above–five times what Trump himself made off TEI.  The truth is, the implications of a fraud case against Trump that stuck were serious.

A settlement is not guilt-period.  The truth is that many settle just to avoid the potential costs inherent in litigation.  This means that, without a fully litigated case, it would be irresponsible to say that Trump did or did not commit fraud here–regardless of the evidence lined up against him.  However, had Trump been found guilty of fraud–or criminal racketeering as Ms. Simpson hoped–that would fall among the high crimes and misdemeanors which can lead to impeachment.  Even when committed before a president enters offices, and determined in a civil court as opposed to a criminal court, a verdict against Trump might have left him in a particularly precarious position in terms of his presidency.

This is very likely why Ms. Simpson was so adamant about pursuing her case and holding Trump himself accountable.   It’s also, despite what Trump himself may say, likely a large factor in why Trump–up until that point doggedly fighting the lawsuit from every angle from attacking the judge in the case to filing ultimately nearly frivolous $100M counterclaims against the plaintiffs in the case–chose to settle on the eve of his inauguration.  However, with the settlement finalized there will never be a fraud ruling against Trump in this case.  Settlements aren’t and should not be thought of as admissions of guilt, they are a generally a business decision, but as this chapter closes and the settlement is finalized it’s worth looking back at the case itself and how both Trump and the plaintiffs got here.