DISTRICT COURT
CITY AND COUNTY OF DENVER,
COLORADO
1437 Bannock Street, Room 256
Denver, CO 80202
Phone: (303) 606-2300
NORMA ANDERSON, MICHELLE PRIOLA,
CLAUDINE CMARADA, KRISTA KAFER,
KATHI WRIGHT, and CHRISTOPHER
CASTILIAN,
Petitioners,
v.
JENA GRISWOLD, in her official capacity as
Colorado Secretary of State, and DONALD J. TRUMP
Respondents.
▲ COURT USE ONLY ▲
Attorneys for Respondent Donald J. Trump:
Scott E. Gessler (28944), sgessler@gesslerblue.com
Geoffrey N. Blue (32684), gblue@gesslerblue.com
Gessler Blue LLC
7350 E. Progress Place, Suite 100
Greenwood Village, CO 80111
Tel. (720) 839-6637 or (303) 906-1050
Case Number:
2023CV32577
Division:
DONALD J. TRUMP’S SPECIAL MOTION TO DISMISS
PURSUANT TO C.R.S. § 13-20-1101(3)(A)
* * *
Certification under C.R.C.P. 121 § 1-15(8)
The undersigned counsel has conferred with the Petitioners’ counsel regarding this
motion, who oppose the relief requested.
DATE FILED: September 22, 2023 6:59 PM
2
INTRODUCTION
Petitioners’ case is based solely on President Donald J. Trump’s speech or lack of
speech. Despite the First Amendment’s protection of the rights of free speech and petition,
Plaintiffs seek to use government power to prevent President Trump from becoming
president again by claiming he “engaged” in and “instigated” an insurrection. To be sure,
President Trump will separately seek dismissal of this case as a legal matter, because the
Fourteenth Amendment applies to one who “engaged in insurrection or rebellion,” not one
who only “instigated” any action. But for purposes of this motion, controlling case law
amply demonstrates that Trump’s actual words were protected speech under the First
Amendment, and he did not “instigate” any violence, insurrection, or rebellion.
ARGUMENT
I. This lawsuit is subject to this
Special Motion to Dismiss
under Colorado’s
anti-SLAPP statute.
In 2019, the Colorado General Assembly determined that it wanted “to encourage
continued participation in matters of public participation and that [such] participation should
not be chilled through abuse of the judicial process.”
1
Therefore, to protect individuals who
exercise their First Amendment rights “to petition, speak freely, associate freely, and
otherwise participate in government to the maximum extent permitted by law,” the General
1
C.R.S. § 13-20-1101(1)(a).
3
Assembly enacted Colorado’s Anti-SLAPP law.
2
The statute aims to balance the
“constitutional rights of persons to petition, speak freely, associate freely, and otherwise
participate in government” with the “rights of persons to file meritorious lawsuits for
demonstrable injury.”
3
In order to achieve that balance, “the statute creates a procedural mechanism that
allows a district court to assess the merits of a lawsuit in its early stages and determine if it is
nonmeritorious [sic]….”
4
As the Court of Appeals explained in Creekside Endodontics:
The statute allows a person (usually a defendant) to file a special motion to
dismiss “[a] cause of action against a person arising from any act of that
person in furtherance of the person’s right of petition or free speech under the
United States constitution or the state constitution in connection with a public
issue.” The trial court then “consider[s] the pleadings and supporting and
opposing affidavits” to determine whether “the plaintiff has established that
there is a reasonable likelihood that the plaintiff will prevail on the claim.”
5
When the Court determines that the plaintiffs have not shown that they have a “reasonable
likelihood” of succeeding on the merits, the Court must dismiss the action.
6
And to further
protect a speaker’s First Amendment rights, the statute awards a successful defendant
attorney’s fees incurred in bringing a special motion to dismiss.
7
Resolving a special motion to dismiss involves a two-step process. First, the
2
C.R.S. § 13-20-1101(1)(b) (the “Statute”), “SLAPP” is short for Strategic Lawsuits
Against Public Participation.
3
Id.; Salazar v. Pub. Tr. Inst., 2022 COA 109M, ¶¶ 11-12.
4
Creekside Endodontics v. Sullivan, 2022 COA 145, ¶ 22.
5
L.S.S. v. S.A.P., 2022 CO 123, ¶ 21 (emphasis added)(citations omitted).
6
C.R.S. § § 13-20-1101(3)(a).
7
C.R.S. § § 13-20-1101(4)(a).
4
defendant must make “a threshold showing that the conduct underlying the plaintiff’s claim
falls within the scope of the anti-SLAPP statute—that is, that the claim arises from an act ‘in
furtherance of the [defendant’s] right of petition or free speech . . . in connection with a
public issue.’”
8
Second, the burden shifts to the Petitioners to establish a “reasonable
likelihood of success on his claim.”
9
To assess a reasonable likelihood of success, the Court reviews “the pleadings and the
evidence to determine ‘whether the plaintiff has stated a legally sufficient claim and made a
prima facie factual showing sufficient to sustain a favorable judgment.’”
10
The Court does
not “weigh evidence or resolve conflicting factual claims,” but simply “accepts the plaintiff’s
evidence as true, and evaluates the defendant’s showing only to determine if it defeats the
plaintiff’s claim as a matter of law.”
11
To make the necessary showing of a “reasonable
likelihood of prevailing,” a Plaintiff cannot rely on the mere allegations averred in the
Complaint.
12
Instead, a Plaintiff must adduce “competent, admissible evidence” showing
that he has a legally sufficient claim,
13
and must “meet the defendant’s constitutional
8
L.S.S., 2022 CO at ¶ 21 (quoting C.R.S. § 13-20-1101(3)(a)).
9
Salazar v. Pub. Trust Inst., 2022 COA 109M, ¶ 21. See also McGarry v. Univ. of San
Diego, 154 Cal. App. 4th 97, 108 (2007).
10
L.S.S., 2022 COA at ¶ 23 (quoting Baral v. Schnitt, 376 P.3d 604, 608 (Cal. 2016)).
11
L.S.S., 2022 at ¶¶ 23-24 (quoting Baral, 376 P.3d at 608) (emphasis added).
12
See, e.g., DuPont Merck Pharm. v. Super. Ct., 78 Cal. App. 4th 562, 568 (2000) (“to
satisfy [its] burden under the second prong of the anti-SLAPP statute, it is not sufficient that
[plaintiff’s] complaint survive a demurrer” or motion to dismiss); Church of Scientology of Cal. v.
Wollersheim, 42 Cal. App. 4th 628, 656 (1996).
13
Mindys Cosmetics v. Dakar, 611 F.3d 590, 599 (9th Cir. 2010) (citation omitted).
5
defenses….”
14
Finally, the Court must “take into consideration the applicable burden of proof in
determining whether the plaintiff has established a likelihood of prevailing.”
15
Petitioners
must meet that burden, or the Court must dismiss this case.
II. Petitioners’ claims all stem from President Trump’s protected First
Amendment rights.
The anti-SLAPP statute provides four non-exclusive examples of acts that are
considered to be “Act[s] in furtherance of a person’s right of petition or free speech … in
connection with a public issue”:
(I) Any written or oral statement or writing made before a legislative,
executive, or judicial proceeding or any other official proceeding authorized by
law;
(II) Any written or oral statement or writing made in connection with an
issue under consideration or review by a legislative, executive, or judicial body
or any other official proceeding authorized by law;
(III) Any written or oral statement or writing made in a place open to the
public or a public forum in connection with an issue of public interest; or
(IV) Any other conduct or communication in furtherance of the exercise of
the constitutional right of petition or the constitutional right of free speech in
connection with a public issue or an issue of public interest.
16
President Trump’s statements fall within these subsections.
14
Robertson v. Rodriguez, 36 Cal. App. 4th 347, 359 (1995); McGarry v. Univ. of San Diego,
154 Cal. App. 4th 97, 108 (2007).
15
L.S.S., 2022 COA 123 at ¶ 42 (quoting Annette F. v. Sharon S., 15 Cal. Rptr. 3d 100,
114 (Ct. App. 2004)).
16
C.R.S. § 13-20-1101(2)(a).
6
All of Petitioners’ claims against President Trump are premised on speech (or refusal
to speak). At no time do Petitioners argue that President Trump did anything other than
engage in either speaking or refusing to speak for their argument that he engaged in the
purported insurrection. Their claims are based on allegations that he said things that made
him a participant in the purported “insurrection”;
17
incited other people to engage in the
riot;
18
things he should have said to stop the riot;
19
involvement in planning his speech on
January 6, 2021;
20
and positions he took in litigation.
21
President Trump’s speech concerned election fraud and the hard-fought 2020
Presidential election. And claims of fraud and a stolen election are the epitome of public
issues.
22
III. President Trump’s statements fell well within First Amendment protection,
and well outside of any instigation or incitement of violence.
President Trump satisfies the first prong of Colorado’s anti-SLAPP statute, because
the statute applies to Petitioners’ claims. Petitioners must now meet their burden. But they
cannot do this, because President Trump’s actions were all protected by the First
Amendment.
17
See, e.g., Verified Petition, ¶¶ 392-429.
18
Id. at ¶¶ 402-419.
19
Id. at ¶¶ 422-429.
20
Id. at ¶¶ 98-107.
21
Id. at ¶ 227.
22
Coomer v. Lindell, 2023 U.S. Dist. LEXIS 43709, *13 (D. Colo. 2023).
7
“[S]peech on public issues occupies the highest rung of the hierarchy of First
Amendment values and is entitled to special protection.”
23
Moreover, “[t]he arguably
‘inappropriate or controversial character of a statement is irrelevant to the question whether
it deals with a matter of public concern.’”
24
And, “[w]here the First Amendment is
implicated, the tie goes to the speaker.”
25
A well-developed body of law exists to guide this Court in determining what type of
speech is protected by the First Amendment, and what type of speech constitutes incitement
to violence. The Supreme Court’s test in Brandenburg v. Ohio precludes speech from being
sanctioned as incitement to riot unless: (1) the speech explicitly or implicitly encouraged the
use of violence or lawless action; (2) the speaker intends that his speech will result in the use
of violence of lawless action; and (3) the imminent use of violence or lawless action is the
likely result of his speech.”
26
This test “helps prevent a law from deterring ‘mere advocacy’
of illegal acts—a kind of speech falling within the First Amendment’s core.”
27
All of President Trump’s speech about which Petitioners complain is constitutionally
protected. President Trump’s speech prior to January 6, 2021, fail Brandenburg’s imminence
requirement: it all took place well before January 6, 2021, before the assemblage of any
23
Snyder v. Phelps, 562 U.S. 443, 452 (2011) (quoting Connick v. Myers, 461 U.S. 138,
145 (1983)) (quotation marks omitted).
24
Id. at 453 (quoting Rankin v. McPherson, 483 U.S. 378, 387 (1987)).
25
Fed. Election Comm’n v. Wisc. Right to Life, 551 U.S. 449, 474 (2007).
26
Nwanguma v. Trump, 903 F.3d 604, 609 (6th Cir. 2018) (quoting Bible Believers v.
Wayne Cty., 805 F.3d 228, 246 (6th Cir. 2015) (en banc)).
27
Counterman v. Colorado, 143 S. Ct. 2016, 2115 (2023).
8
crowd in Washington, D.C., and indeed before any rally or event had even been scheduled.
Likewise, no evidence exists showing that speech prior to January 6, 2021, even
contemplated any action on January 6, 2021, let alone encouraged people to engage in
violence on that day.
And on January 6, 2021, President Trump’s speech did not explicitly encourage
violence or lawless action. Rather, he explicitly advocated non-violence, declaring “I know
that everyone here will soon be marching over to the Capitol building to peacefully and
patriotically make your voices heard.”
28
As one federal court has explicitly found, “the
President’s words on January 6th did not explicitly encourage the imminent use of violence
or lawless action.”
29
A. President Trump’s speech prior to January 6, 2021, fails the imminence
requirement.
The Petition recites at length statements by President Trump, beginning as far back
as 2016.
30
But Petitioners’ lengthy recitation of what they consider unflattering speech (often
taken out of context) does not enable them to overcome First Amendment protections and
punish President Trump for speech. To be sure, they attempt a narrative that President
28
See, generally, Associated Press, Transcript of Trump’s speech at rally before US Capitol riot,
Associated Press (Jan. 13, 2021),
https://apnews.com/article/election-2020-joe-biden-
donald-trump-capitol-siege-mediae79eb5164613d6718e9f4502eb471f27, last visited
September 22, 2023. Petitioners cited to this transcript in their Verified Petition (Verified Pet., ¶
279).
29
Thompson, 590 F. Supp. 3d at 115.
30
Verified Pet., ¶ 448.
9
Trump’s speech was part of a deep, multi-year plan to incite insurrection. But they can cite
nothing that actually meets applicable legal standards, and the fact remains that Trump’s
speech was not likely to result, imminently, in lawless action. It was therefore protected by
the First Amendment.
31
The imminence test “must require at least some showing of temporal imminence, lest
the word be rendered linguistically incoherent,”
32
and “most commentators have had little or
no trouble concluding that the Court’s opinion in Brandenburg adopts a highly protective
imminence test.”
33
After Brandenburg, the Supreme Court revisited “imminence” in Hess v. Indiana. There,
the Court held that, because “there was no evidence, or rational inference from the import
of the language, that [defendant’s] words were intended to produce, and likely to produce,
imminent disorder, those words could not be punished by the State….”
34
As the Ninth Circuit
concluded from Hess, “a state cannot constitutionally sanction advocacy of illegal action at
some indefinite future time.”
35
31
Nwanguma, 903 F.3d at 609; see also McCoy v. Stewart, 282 F.3d 626, 631 (9th Cir.
2002).
32
Calvert, 51 Conn. L. Rev. at 132, citing Martin H. Redish & Michael J.T. Downey,
Criminal Conspiracy as Free Expression, 76 ALB. L. REV. 697, 730 (2012-2013)
33
Calvert, 51 Conn. L. Rev. at 132, citing Martin H. Redish, Unlawful Advocacy and Free
Speech Theory: Rethinking the Lessons of the McCarthy Era, 73 U. CIN. L. REV. 9, 65 (2004).
34
Hess v. Indiana, 414 U.S. 105, 109 (1973) (emphasis added).
35
McCoy v. Stewart, 282 F.3d 626, 631 (9th Cir. 2002) (internal quotes omitted).
10
More importantly, the Ninth Circuit noted that imminence required speech that
advocated specific action. It held that the speech in question was “[f]ar from demonstrating
a specific intent to further illegal goals; [the] speech appears to fit more closely the profile of
mere abstract advocacy of lawlessness.”
36
The court focused on a complete lack of evidence
showing that the speaker advocated the commission of a crime.
37
Here, Petitioners have not cited to a single statement by President Trump before
January 6, 2021, advocating storming the capital or stopping the counting of the electoral
ballots. And they cannot identify any such speech, because President Trump never made any
statement advocating storming the Capitol or forcibly stopping the electoral vote count.
Their theory regarding statements before January 6
th
appears to be that President Trump
gradually undermined his supporters’ inherent belief in the rule of law to the point that they
were willing to break the law on January 6, 2021. But the Sixth Circuit has soundly rejected
this theory of causation:
Even the theory of causation in this case is that persistent exposure to the
defendants’ media gradually undermined Carneal’s moral discomfort with
violence to the point that he solved his social disputes with a gun. This glacial
process of personality development is far from the temporal imminence that we have required
to satisfy the Brandenburg test.
38
36
Id.
37
Id.
38
James v. Meow Media, Inc., 300 F.3d 683, 698 (6th Cir. 2002) (emphasis added) citing
Ashcroft v. Free Speech Coalition, 535 U.S. 234, 253 (2002).
11
For these reasons, President’s Trump’s statements prior to January 6, 2021, could
not, under directly controlling Supreme Court precedent, incite or instigate anything. They
don’t meet the imminence test and fall well within protected speech under the First
Amendment.
B. President Trump’s speech prior to January 6, 2021, cannot be used to
disqualify him from office because it did not incite the riot.
President Trump’s statements before the January 6, 2021, speech are not actionable
because none of those statements advocated violence or lawless action, including the riot
that occurred on January 6, 2021. One searches in vain for a single statement advocating
violence on January 6, 2021.
C. President Trump’s speech on January 6, 2021, does not encourage the use of
violence or lawless action.
President Trump’s January 6, 2021, speech did not encourage the use of violence or
lawless action.
39
The Petition quotes President Trump’s January 6, 2021, speech, but,
importantly, not a single statement in that speech advocated storming the Capital, rioting, or
preventing the counting of the electoral votes.
Petitioners complain that President Trump discussed Vice-President Pence, stating
his hope that the Vice-President would be courageous, do the right thing, and stand up for
the Constitution:
39
See, generally, Associated Press, Transcript of Trump’s speech at rally before US Capitol riot,
(Jan. 13, 2021), https://apnews.com/article/election-2020-joe-biden-donald-trump-capitol-
siege-mediae79eb5164613d6718e9f4502eb471f27.
12
1. “I hope Mike is going to do the right thing. I hope so. I hope so.
Because if Mike Pence does the right thing, we win the election”;
2. “The states got defrauded … Now they want to recertify. … All Vice
President Pence has to do is send it back to the states to recertify and
we become president and you are the happiest people”;
3. “I just spoke to Mike. I said: ‘Mike, that doesn’t take courage. What
takes courage is to do nothing. That takes courage.’ And then we’re
stuck with a president who lost the election by a lot and we have to live
with that for four more years. We’re just not going to let that happen”;
4. “And Mike Pence is going to have to come through for us, and if he
doesn’t, that will be a, a sad day for our country because you’re sworn
to uphold our Constitution”;
5. “[Pennsylvania] want[s] to recertify. But the only way that can happen
is if Mike Pence agrees to send it back. Mike Pence has to agree to send
it back”;
6. “And Mike Pence, I hope you’re going to stand up for the good of our
Constitution and for the good of our country. And if you’re not, I’m
going to be very disappointed in you. I will tell you right now. I’m not
hearing good stories”; and
7. “So I hope Mike has the courage to do what he has to do. And I hope
he doesn’t listen to the RINOs and the stupid people that he’s listening
to.”
40
None of the statements advocate, explicitly or implicitly, that the listeners attack Vice-
President Pence or the Capitol. Petitioners want this Court to read into these statements
things that were not said.
40
Verified Pet. at ¶ 279.
13
Petitioners then challenge President Trump’s exhortation to fight: “And we fight. We
fight like hell. And if you don’t fight like hell, you’re not going to have a country anymore”
41
to suggest that President Trump was “plausibly” encouraging his supporters to literally
“fight.”
In Hess v. Indiana, the Court found protected speech included the statement “[w]e’ll
take the f[***]ing streets later (or again)” while the speaker stood in front of a crowd of
antiwar demonstrators after a number of demonstrators had just been forcibly removed
from the street.
42
Similarly, in Nwanguma, the Court found that exhorting a crowd to “get ‘em
out of here” several times in reference to a protestor at a political rally was neither an explicit
nor implicit exhortation to violence, particularly when coupled with the admonition “don’t
hurt ‘em.”
43
President Trump’s actual words on January 6th are less inflammatory than those
at issue in Hess or Nwanguma, and do not qualify as “implicit” incitement.
Petitioners also ignore the full textual context of President Trump’s words, which the
Supreme Court has admonished courts not to do.
44
President Trump’s use of the word
“fight” was clearly metaphorical, referring to a political “fight,” not a literal fistfight or other
violent interaction. For example, he stated, in reference to Rudy Giuliani, “He’s got guts. He
41
Verified Pet. at ¶ 281. Plaintiffs highlight his words in the speech to make it seem
like President Trump himself was emphasizing the words beyond normal.
42
Hess, 414 U.S. at 107.
43
Nwanguma, 903 F.3d 60, 611–12 (6
th
Cir. 2018).
44
Snyder v. Phelps, 562 U.S. 443, 453-54 (2011).
14
fights, he fights.”
45
No reasonable listener would understand that metaphorical statement to
suggest that Mr. Giuliani, a 76-year-old man, was getting into fist fights. Similarly, President
Trump referred to Jim Jordan and other Congressmen, stating “they’re out there fighting.
The House guys are fighting.”
46
Rep. Jordan is no Preston Brooks – he is not caning people
on the House floor; his “fight” is political. In reference to the press, President Trump stated
“it used to be that they’d argue with me. I’d fight. So I’d fight, they’d fight, I’d fight, they’d
fight. Pop pop. You’d believe me, you’d believe them. Somebody comes out. You know,
they had their point of view, I had my point of view, but you’d have an argument.”
47
President Trump did not engage in physical fights with the press—such “fights” were verbal
sparring. Whatever political anger may exist, no one has plausibly claimed that President
Trump and his antagonists in the press have come to physical blows. The verb “fight” has
multiple meanings, only a few of which include a physical altercation. Historically, President
Trump has consistently used the word “fight” to mean “to oppose the passage or
development of”
48
or “to engage in a quarrel; argue,”
49
to use two commonly understood
meanings. When read in context, President Trump’s exhortation to “fight” is unambiguously
45
Associated Press, Transcript of Trump’s speech at rally before US Capitol riot (Jan. 13,
2021), https://apnews.com/article/election-2020-joe-biden-donald-trump-capitol-siege-
mediae79eb5164613d6718e9f4502eb471f27.
46
Id.
47
Id.
48
Merriam-Webster.com Dictionary, s.v. “fight,” https://www.merriam-
webster.com/dictionary/fight, last visited September 21, 2023.
49
The American Heritage® Dictionary of the English Language, 5th Edition,
available at https://www.wordnik.com/words/fight
, last visited September 21, 2023.
15
a reference to applying political pressure, not engaging in illegal or violent activity, even
absent his exhortation to the crowd to proceed “peacefully.”
Ultimately, there is no implicit or explicit exhortation to violence in President
Trump’s speech.
50
The plain language of President Trump’s speech was not “incitement”
under Brandenburg.
D. President Trump did not intend for his supporters to interpret his speech as
an incitement to violence.
Finally, President Trump’s speech contains no indication that he intended his
supporters to riot and invade the capital building. Brandenburg holds that before a court can
penalize someone for their speech, they must show intent on behalf of the speaker.
51
Even
statements that advocate the use of force or breaking of the law are protected absent such
intent. No statement Petitioners cite in their Petition shows President Trump intended to
encourage or incite his followers to riot, storm the Capital, and prevent the counting of the
electoral votes.
50
Associated Press, Transcript of Trump’s speech at rally before US Capitol riot (Jan. 13,
2021), https://apnews.com/article/election-2020-joe-biden-donald-trump-capitol-siege-
mediae79eb5164613d6718e9f4502eb471f27.
51
Brandenburg, 395 US at 447 (“the constitutional guarantees of free speech and free
press do not permit a State to forbid or proscribe advocacy of the use of force or of law
violation except where such advocacy is directed to inciting or producing imminent lawless action
and is likely to incite or produce such action.” (emphasis added)).
16
The Supreme Court recently underscored the centrality of the intent component of
the Brandenburg analysis when it made clear that even recklessness was insufficient to support
an incitement claim:
When incitement is at issue, we have spoken in terms of specific intent,
presumably equivalent to purpose or knowledge. See Hess, 414 U. S., at 109, 94
S. Ct. 326, 38 L. Ed. 2d 303; supra, at 8. In doing so, we recognized that
incitement to disorder is commonly a hair’s-breadth away from political
“advocacy”—and particularly from strong protests against the government
and prevailing social order. Brandenburg, 395 U. S., at 447, 89 S. Ct. 1827, 23 L.
Ed. 2d 430. Such protests gave rise to all the cases in which the Court
demanded a showing of intent. See ibid.; Hess, 414 U. S., at 106, 94 S. Ct. 326,
38 L. Ed. 2d 303; Claiborne Hardware Co., 458 U. S., at 888, 928, 102 S. Ct.
3409, 73 L. Ed. 2d 1215. And the Court decided those cases against a resonant
historical backdrop: the Court’s failure, in an earlier era, to protect mere
advocacy of force or lawbreaking from legal sanction. See, e.g., Whitney v.
California, 274 U. S. 357, 47 S. Ct. 641, 71 L. Ed. 1095 (1927); Gitlow v. New
York, 268 U. S. 652, 45 S. Ct. 625, 69 L. Ed. 1138 (1925); Abrams v. United
States, 250 U. S. 616, 40 S. Ct. 17, 63 L. Ed. 1173 (1919). A strong intent
requirement was, and remains, one way to guarantee history was not repeated.
It was a way to ensure that efforts to prosecute incitement would not bleed
over, either directly or through a chilling effect, to dissenting political speech
at the First Amendment’s core.
52
None of President Trump’s pre-January 6, 2021, statements show any intent to
encourage his supporters to resort to violence, much less the “purpose or knowledge” that
Counterman makes clear is required. It is true that President Trump used provocative language
(although on January 6 he undisputedly admonished his listeners to proceed “peacefully and
patriotically”), but provocative language is protected by the First Amendment.
53
Indeed,
52
Counterman, 143 S.Ct. at 2118.
53
Brandenburg, 395 US at 447.
17
Brandenburg specifically held that the First Amendment prevents government from punishing
“advocacy of the use of force or of law violation except where such advocacy is directed to inciting
or producing imminent lawless action and is likely to incite or produce such action.” Here,
President Trump’s speech did not even approach advocacy of the use of force or a violation
of law.
Further, even if the quoted portions of President Trump’s January 6, 2021, speech
were ambiguous as to whether he was advocating rioting, storming the Capital, or preventing
the counting of the electoral ballots—and they are not—the full context of President
Trump’s speech shows that he was not doing so. Instead, he was advocating a peaceful
march to the capital and a rally there. He stated:
1. Now, it is up to Congress to confront this egregious assault on our
democracy. And after this, we’re going to walk down, and I’ll be there with
you, we’re going to walk down, we’re going to walk down.
2. we’re going to walk down to the Capitol, and we’re going to cheer on our
brave senators and congressmen and women, and we’re probably not going to
be cheering so much for some of them.
3. I know that everyone here will soon be marching over to the Capitol building
to peacefully and patriotically make your voices heard.
4. Today we will see whether Republicans stand strong for integrity of our
elections.
5. Today we see a very important event though. Because right over there, right
there, we see the event going to take place. And I’m going to be watching.
Because history is going to be made. We’re going to see whether or not we
have great and courageous leaders, or whether or not we have leaders that
should be ashamed of themselves throughout history, throughout eternity
they’ll be ashamed. And you know what? If they do the wrong thing, we
18
should never, ever forget that they did. Never forget. We should never ever
forget.
6. So I hope Mike has the courage to do what he has to do. And I hope he
doesn’t listen to the RINOs and the stupid people that he’s listening to.
7. So we’re going to, we’re going to walk down Pennsylvania Avenue. I love
Pennsylvania Avenue. And we’re going to the Capitol, and we’re going to try
and give.
8. The Democrats are hopeless, they never vote for anything. Not even one vote.
But we’re going to try and give our Republicans, the weak ones because the
strong ones don’t need any of our help. We’re going to try and give them the
kind of pride and boldness that they need to take back our country.
9. So let’s walk down Pennsylvania Avenue.
54
At no point in any of these statements does he advocate, implicitly or explicitly,
rioting, storming the Capital or preventing the counting of the electoral votes. He advocates
being at the Capital to “cheer” on the Republicans who are on his side. He advocates
“peacefully and patriotically” making their voices heard. He advocates giving the
Republicans he considers weak, “the kind of pride and boldness that they need to take back
our country.” He also talks about “seeing” what the Senators and Congressmen will do.
They would not “see” what the Senators and Congressmen would do if the plan were to
invade the Capital and prevent the Senators and Congressmen from counting the electoral
votes.
54
Associated Press, Transcript of Trump’s speech at rally before US Capitol riot (Jan. 13,
2021),
https://apnews.com/article/election-2020-joe-biden-donald-trump-capitol-siege-
mediae79eb5164613d6718e9f4502eb471f27.
19
In other words, both the plain text of the spoken words, and the words when read in
context, make clear that President Trump is listing his policy and political grievances, and
that he is not advocating violence or preventing the counting of the electoral ballots. He is
advocating rallying at the Capitol to encourage the representatives to politically challenge the
counting of the electoral votes. This is not anywhere near sufficient to prove the requisite
intent to incite his listeners to violence or a violation of the law.
To prevail on their claims, Petitioners would have to come forward with affidavits
showing that President Trump had that requisite intent, i.e., “purpose or knowledge,” to
incite his listeners to violence or a violation of the law for their claims not to be barred under
Brandenburg and its progeny. They cannot do so.
Under directly controlling Supreme Court Precedent, President Trump’s words were
not incitement.
55
They fall within First Amendment protections, and they do not and cannot
constitute “engagement” in an insurrection or rebellion.
IV. Petitioners’ claims also fail as a matter of law for other reasons.
As will be discussed in more detail in Respondent’s Motion to Dismiss based upon
the federal issues which will be filled pursuant to this court’s orders, Petitioners will be
unable to prove that there is a reasonable likelihood of success on their claims.
55
Brandenburg, 395 US at 447.
20
A. The Ability to Determine Presidential Qualifications Rests with a Joint Session
of Congress, Not State Elections Officials.
Over the last 15 years, there have been numerous lawsuits filed asking state elections
officials and the courts to ensure the qualifications of Barack Obama, John McCain, and
Kamala Harris or to challenge them outright. The Third Circuit, in an order issued during
one such challenge, stated that this was a political question not within the province of the
judiciary.
56
Multiple state and federal district courts have also ruled that lawsuits by citizens
challenging presidential qualifications presented non-justiciable political questions.
57
That makes sense because allowing individual state elections officials or courts from
across the country to usurp Congress’s role in determining presidential qualifications would
sow unprecedented confusion and uncertainty. If Congress wanted states to play a part in
determining the qualifications for president, it could have said so. It didn’t. And in the
56
See Berg v. Obama, 586 F.3d 234, 238 (3d Cir. 2009) (“We also denied that motion,
reiterating Berg’s apparent lack of standing and also stating that Berg’s lawsuit seemed to
present a non-justiciable political question.”).
57
See e.g., Grinols v. Electoral College, 2013 WL 2294885, *7 (E.D. Cal. May 23, 2013)
(“These various articles and amendments of the Constitution make clear that the
Constitution assigns to Congress, and not to federal courts, the responsibility of determining
whether a person is qualified to serve as President of the United States. As such, the
question presented by Plaintiffs in this case—whether President Obama may legitimately run
for office and serve as President—is a political question that the Court may not answer.”);
and Strunk v. New York State Bd. Of Elections, No. 6500/11, 2012 WL 1205117, at *12 (Sup.
Ct. Kings County NY Apr. 11, 2012) ("If a state court were to involve itself in the eligibility
of a candidate to hold the office of President, a determination reserved for the Electoral
College and Congress, it may involve itself in national political matters for which it is
institutionally ill-suited and interfere with the constitutional authority of the Electoral
College and Congress.”).
21
absence of a delegation of express power to state elections officials to judge a presidential
candidate’s qualifications, and a clear process by which to do so, the result would be chaos.
The California Court of Appeals’ language in Keyes v. Bowen, 189 Cal.App.4th 647 (2010), is
instructive:
In any event, the truly absurd result would be to require each state's election
official to investigate and determine whether the proffered candidate met
eligibility criteria of the United States Constitution, giving each the power to
override a party's selection of a presidential candidate. The presidential
nominating process is not subject to each of the 50 states' election officials
independently deciding whether a presidential nominee is qualified, as this could
lead to chaotic results. Were the courts of 50 states at liberty to issue injunctions
restricting certification of duly-elected presidential electors, the result could be
conflicting rulings and delayed transition of power in derogation of statutory
and constitutional deadlines. Any investigation of eligibility is best left to each
party, which presumably will conduct the appropriate background check or risk
that its nominee's election will be derailed by an objection in Congress, which
is authorized to entertain and resolve the validity of objections following the
submission of the electoral votes.
58
Colorado’s laws, like the laws of the rest of the states, do not, nor can they, allow for state
election officials to determine if a presidential candidate has violated the Fourteenth
Amendment. This Court should reject the Petitioner’s request.
B. Petitioner is Unlikely To Prevail Because The Fourteenth Amendment Is Not
Self-Executing When Used Offensively, And Congress Has Not Passed A
Statute Authorizing Plaintiff To Bring This Claim.
Even if this Court had jurisdiction, and even if judicial action were not barred by
justiciability concerns, the Fourteenth Amendment still is not self-executing and cannot be
58
Id. at 660.
22
applied to support a cause of action seeking judicial relief absent enactment by Congress of a
statute authorizing such action.
Among the arguments Petitioners analyze is the historical treatment of the issue by,
among others, Chief Justice Chase and the Congress of 1870. Just one year after ratification,
Chief Justice Chase, in a circuit court case, ruled that the Fourteenth Amendment was not
self-executing.
59
In 1870, presumably in response to Griffin, Congress passed a law, entitled
the “Enforcement Act of 1870,” which allowed federal district attorneys to enforce the
Fourteenth Amendment.
60
But the Enforcement Act did not give state election officials the
authority to enforce the Fourteenth Amendment; it gave federal district attorneys that
authority.
61
And in 1925, the Enforcement Act was repealed. In 2021, legislation was
introduced to provide a cause of action to remove individuals from office who were engaged
in insurrection or rebellion, but no further action was taken on that bill.
62
Chief Justice
Chase’s order and the subsequent legislative history shows that the Fourteenth Amendment
is not self-executing and that it does not give secretaries of state the authority to remove a
59
See In re Griffin, 11 F.Cas. 7 (C.C.Va 1869).
60
Elliott, Sam D., When the United States Attorney Sued to Remove Half the Tennessee
Supreme Court: The quo Warranto Cases of 1870, 49 Aug Tenn. B.J. 20, 23-24 (August 2013)
(quoting the relevant language from the statute). Ex. 1, Enforcement Act of 1870, § 14, p. 4,
(downloaded from the Senate.gov website at
https://www.senate.gov/artandhistory/history/resources/pdf/EnforcementAct_1870.pdf
).
61
See Id.
62
See H.R. 1405, 117
th
Cong. 2021.
23
presidential candidate from the ballot for violations of Section Three of the Fourteenth
Amendment.
C. Petitioners are unlikely to prevail because they have not alleged that President
Trump violated any provision of Section 3 of the Fourteenth Amendment.
Assuming Petitioner’s pleadings to be true and construing all reasonable inferences in
the light most favorable to him, the Complaint on its face does not assert a cause of action.
The sole legal basis in the Complaint for the requested relief is the allegation that President
Trump provided “aid and comfort” to “insurrectionists.”
It is matter of public record that President Trump was impeached by the 117th
Congress for incitement of insurrection and that he was found
not guilty
of those charges
by the Senate.
63
Even if all the facts in the Complaint were true, rebellion or insurrection is a
federal crime, and no court in the United States has found President Trump guilty of 18
U.S.C. § 2383, nor has any prosecutor has filed an indictment against President Trump for
the rebellion or insurrection under that statute.
Petitioners’ entire case is based upon the argument that Trump somehow provided
aid and comfort to an insurrection. The plain text of Sec. 3 of the 14th Amendment
prohibits the holding of office by someone who “engaged in insurrection or rebellion” or
63
See Impeaching Donald John Trump, President of the United States, for high
crimes and misdemeanors, H. 24, 117th Cong. (2021).
A true and correct copy of the Senate
vote of Not Guilty can be found at
https://www.senate.gov/legislative/LIS/roll_call_votes/vote1171/vote_117_1_00059.htm,
last visited June 19, 2023.
24
who has “given aid or comfort to the enemies” of the United States. Even if Plaintiff’s
theory that a President could be prohibited from holding office for giving aid to an
insurrectionist was correct, not one of the 1,000+ people charged in connection with the riot
at the Capitol on January 6th has yet even been charged—much less convicted—under 18
U.S.C. § 2383, the federal criminal statute that covers “insurrection.”
64
The Fourteenth Amendment does not disqualify President Trump from being
President again should the American people choose to elect him.
CONCLUSION
Petitioners brought this case to punish and disqualify President Trump for his words.
They seek to prevent him from serving as President because he dared to speak his mind and
challenge the 2020 election. But the First Amendment does not permit a person’s words to
be used against him. As shown above, President’s Trumps speech is protected by the First
Amendment and does not constitute incitement to violence or illegal action, let alone an
insurrection or rebellion. Colorado’s anti-SLAPP statute was meant to protect those like
President Trump, who speak out forcefully on public issues, but do not incite violence or
other illegal behavior. Accordingly, the Court should grant this motion.
64
United States v. Griffith, 2023 WL 2043223, *6 n. 5 (D. DC, Feb. 16, 2023) (finding
that “no defendant has been charged with [18 U.S.C. § 2383]); Alan Feuer, More Than 1,000
People Have Been Charged in Connection with the Jan. 6 Attack, New York Times (Aug. 1, 2023).
25
FOR THESE REASONS, the court should dismiss the Petitioner, award Trump
attorney fees for this action, and grant Donald J. Trump all such further relief as is just,
proper or appropriate.
Respectfully submitted this 22
nd
day of September 2023,
G
ESSLER BLUE LLC
s/ Geoffrey N. Blue
Geoffrey N. Blue
Certificate of Service
I certify that on this 22
nd
day of September 2023, the foregoing was electronically
served via e-mail or CCES on all parties and their counsel of record:
By: s/ Joanna Bila
Joanna Bila, Paralegal
