A federal judge slapped down President Donald Trump’s argument that he wasn’t civilly liable for inciting violence at the deadly Capitol riot because his “Stop the Steal” speech was comparable to a rapper working up a crowd with divisive lyrics.
The president told his followers on Jan. 6, 2021, to “fight like hell” or “you’re not going to have a country anymore” before they stormed the Capitol to try to stop congressional certification of President Joe Biden’s election victory.
He later argued in his response to a civil suit that his remarks should be interpreted as constitutionally protected speech, and not an illegal incitement to violence, because an adverse ruling would limit “public citizen speech.”
“To illustrate the point, he poses the hypothetical of a popular rapper (bearing some resemblance to Eminem) whose concert performance leads to fan violence,” U.S. District Judge Amit Mehta, a Barack Obama appointee, wrote in a decision this week.
The hypothetical described a rapper known for his provocative and controversial lyrics that “describe explicit violent acts, including gun violence, rape, and a description of the rapper downing his wife.”
The rapper is aware that his song lyrics sometimes inspire young people to “act emotionally and sometimes violently” but nevertheless takes the stage in front of thousands of fans and performs his most aggressive songs.
He then stokes his audience’s passions by saying, “Fight the man! Fight Establishment! Don’t let them tell you what to do! Fight like hell!” Chaos ensues, with the fans storming the nearest establishments, stealing food from concession stands, attacking vendors, and beating security guards backstage.
According to Trump, if the court considered his “Stop the Steal” speech to be incitement, the hypothetical rapper would also be liable for his fans’ actions—an argument that Mehta flatly rejected.
“Here is what is missing from the President’s hypothetical,” he wrote.
To be an accurate comparison, the rapper would have needed to tell his fans for weeks before the concert that the “Establishment” had taken something valuable from them through fraud and deceit. He would have needed to know they were planning to act violently that very day, including bringing weapons to the show, to reclaim what was stolen from then.
The rapper also would have needed to specifically identify the offending members of the “Establishment,” and direct his fans to descend thousands strong on the exact place at the exact time the “Establishment” was working to take away that thing of value.
“Only if those facts are included does the rap concert begin to resemble January 6,” Mehta wrote. “The court would agree that, in this revised hypothetical, the rapper’s expression plausibly are words of incitement.”
He declined to dismiss the complaint on First Amendment grounds and ruled that much of Trump’s conduct that day fell outside the bounds of presidential immunity, allowing the case—which was brought by Democratic lawmakers and Capitol police officers—to move forward.
The Daily Beast has reached out to the White House for comment.
The ruling was handed down earlier this week but began making the rounds on social media on Thursday after Lawfare senior editor Roger Parloff noticed the Eminem hypothetical buried deep in the decision.
Special Counsel Jack Smith had also secured a criminal indictment against Trump for his actions before and during the Capitol riot, but the case was dropped after Trump won re-election.
Ironically, Eminem has been a vocal critic of Trump for years, using his interviews, music, and live performances to attack the president and his policies.
