Republican presidential primary front-runner Donald Trump has funny notions about free speech. After one of his rallies was shut down Friday night when protestors infiltrated the event at the University of Illinois at Chicago, Trump said that his speech rights had been trammeled. “The organized group of people, many of them thugs, who shut down our First Amendment rights in Chicago, have totally energized America!” he tweeted. To Trump, another person’s legitimate—if questionable—exercise of free speech is an illegitimate impingement on his own.
Trump’s First Amendment views were clearly cultivated under the brain-melting lights of reality television, where he is free to fire anyone he disagrees with, and always gets the last word. He doesn’t seem to understand that there’s no right to say whatever you want without facing a backlash—the First Amendment protects us from the government blocking our speech, not from protesters.
Treating the campaign like just another reality show, Trump is quick to say that only he has the right to express himself, with seemingly no care for the fact that protesters and reporters have been set upon at his rallies, dragged out by police, even assaulted, as he slyly stands by and speculates as to whether they might just be enemies of the state. As Steve Chapman of the Chicago Tribune puts it, “He treasures his right to free expression, but yours is negotiable.”
Trump’s authoritarian views on speech are troubling, but there’s another more immediate question about free-speech abuse that has already possibly occurred: Has he crossed the line from protected speech into unprotected incitement to violence?
Under the landmark 1969 Supreme Court ruling Brandenberg v. Ohio, even hateful, racist speech is fully protected under the First Amendment—unless, that is, “it is advocacy directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” By that measure, much of Trump’s worst speech is safe. As contemptible as it is that high schoolers are now chanting “build a wall” at Hispanic students from a rival school, or that third graders in Fairfax County are now pointing out which children will be deported when Trump is elected, it is pretty clear that while he is morally responsible for polluting the discourse, he isn’t on the legal hook for this sort of thing.
The question comes down to whether Trump is across that incitement line based on what he tells people to do at his rallies. In a powerful segment on The Rachel Maddow Show this past Friday, Maddow amassed a good deal of video evidence suggesting that Trump is indeed attempting to nudge his followers toward lawlessness. The evidence is horrifying, and shocked many of us who had become accustomed to Trump’s daily pellets of ugliness.
“If you see somebody getting ready to throw a tomato, knock the crap out of them,” he said at one rally. “I promise you, I will pay for the legal fees.” After one protester was punched and kicked at a November rally in Birmingham, Alabama, Trump’s reaction was, “Maybe he should have been roughed up, because it was absolutely disgusting what he was doing.” The real estate mogul also longs openly for a time when protesters were met with violence: “See, in the good old days this doesn’t happen, because they used to treat them very, very rough. And when they protested once, you know, they would not do it again so easily.” At another event, he went even further: “I love the old days—you know what they used to do to guys like that when they were in a place like this? They’d be carried out on a stretcher, folks.” After a Trump supporter, John Franklin McGraw, viciously sucker punched a black protester in the face in North Carolina last week, the assailant bragged to Inside Edition, “The next time we see him, we might have to kill him.” Trump said he was considering paying McGraw’s legal fees.
After evaluating whether they could charge Trump himself with inciting a riot, North Carolina law enforcement officials declined to do so on Monday.
But just because he wasn’t charged in North Carolina, doesn’t mean Trump isn’t violating the law elsewhere. Garrett Epps, a professor of law at the University of Baltimore and writer for the Atlantic, told me in an email that he believes Trump has crossed the Brandenburg line into incitement:
Trump is talking to people who are present and urging them to commit assault on someone who hasn’t done anything (holding a tomato isn’t a crime). He could have said, “if you see someone holding a tomato, notify security,” or “try to talk them out of it,” but instead he advocates immediate preemptive violence.
As Epps noted, the test for incitement is speech directed, or intended to, incite or cause imminent lawless action, and likely to do so. “Check, check, check, check,” he writes. “It is the equivalent of [saying] ‘hit him now,’ which is the core of unprotected incitement.”
The counterargument is that the threshold is high, and Trump hasn’t crossed it yet. “Generally speaking, advocating violence in the abstract—that is not a crime and is protected speech,” Eugene Volokh, a First Amendment expert at UCLA and creator of the Volokh Conspiracy, said in an interview with Dan Abrams’ Law Newz. “If the speaker is calling for moderate defense against people who are throwing things, who are punching or shoving, or who are shouting down a speaker,” that is probably OK, according to Volokh.
Hermann Walz, an adjunct professor at John Jay College of Criminal Justice similarly told the Washington Post last week that Trump is likely safe at least from criminal prosecution. “Short of Donald Trump saying something like, ‘Get that guy and punch him in the face,’ or something like that, I don’t see that he would have any real liability,” Walz said.
In all of this, Leslie Kendrick, a professor of First Amendment law at the University of Virginia, offers a succinct and clarifying response. “I’d say whether he’s stayed on the right side of the line is almost beside the point,” she told me. “When we’re parsing whether a candidate could go to jail for inciting a riot at a campaign rally, something is very wrong.”
There may or may not be a legal solution to Trump’s vicious language of violence and fear, his practice of demonizing objectors, and his utter moral cowardice in simply declining to tell his supporters to stop punching people in his name. But there is a political solution, and if voters don’t reject a man so clearly unfit for office, freedom of speech may be the first casualty in the pantheon of cherished American constitutional liberties, but it surely will not be the last.