A White House petition calling on the Obama administration to arrest Republican presidential candidate Donald Trump has gotten more than 79,000 signatures, but it’s probably going nowhere.
The petition -- created March 13, by someone known only as "P.M." from Los Angeles -- calls on the Obama administration to arrest Trump for inciting violence among his supporters. Several Trump rallies have turned violent, with protesters and members of the media getting beaten up or forcefully accosted. Trump himself has embraced these aspects of his campaign.
As precedent, the petition cites Bradenburg v. Ohio, a 1969 landmark Supreme Court case that reversed the conviction of a Ku Klux Klan leader who'd been arrested and convicted for speaking at a rally. Police said the Klan leader's remarks violated a law against advocating “crime, sabotage, violence, or unlawful methods of terrorism as a means of accomplishing industrial or political reform.”
The Supreme Court, however, saw things differently. It threw out the man’s conviction and struck down the law on the grounds that it violated the First Amendment. The high court also created a test to allow the government to prosecute this kind of speech when it is designed to incite or produce “imminent lawless action.”
The anti-Trump petition argues that the GOP front-runner's rhetoric meets that constitutional test.
“Clearly, he is doing exactly that,” the petition reads.
But legal experts say it's not totally clear whether Trump has met the standard for criminal charges.
“Generally speaking, advocating violence in the abstract -- that is not a crime and is protected speech,” Eugene Volokh, a First Amendment expert and law professor at the University of California, Los Angeles, told the site LawNewz this week.
“Most heckling is not illegal, so you can’t use force to stop the hecklers and urging people on the spot to use force to stop the hecklers is illegal,” Volokh said. But he also noted that it's probably OK for a speaker to call for "moderate defense" if protesters are being violent.
By contrast, Garrett Epps, a law professor at the University of Baltimore, says that Trump’s brand of incitement is precisely the kind that's not protected by the First Amendment -- at least in the Supreme Court's eyes.
“Trump is talking to people who are present and urging them to commit assault on someone who hasn’t done anything,” Epps told Slate this week. “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.”
The White House responds to petitions that get 100,000 signatures within 30 days. There's a good chance it will respond to this one. But wherever Trump’s statements fall under the First Amendment, there’s little the White House can do about it. Sure, maybe a sensible argument can be made that he’s violating federal anti-riot law. But ultimately, federal and state prosecutors are the ones who make the call as to whether Trump's remarks violate any laws. No amount of activism can compel prosecutors to go after Trump -- especially if they consider his words and actions to be perfectly constitutional.
Mary-Rose Papandrea, a professor at the University of North Carolina School of Law, says there may not be enough of a direct correlation between Trump's statements and the violence that happens at his events.
"Just making statements in the abstract or even statements at a prior rally are just too far disconnected from time and space to constitute actual incitement,” she told LawNewz.
Update, 3/30/16: The petition has gotten over 100,000 signatures, meaning it should get get a White House response.
Editor’s note: Donald Trump is a serial liar, rampant xenophobe, racist, misogynist, birther and bully who has repeatedly pledged to ban all Muslims — 1.6 billion members of an entire religion — from entering the U.S.