Donald Trump's Incitement to Lawless Action, True Threats, and the First Amendment

Republican Presidential candidate Donald Trump's campaign rallies have been marked by some of the vilest expressions ever witnessed at a political assembly. Those expressions have evolved into acts of violence against audience members--usually against African-Americans, Hispanics, and Muslims.

Some of Trump's supporters have shoved, stomped, and punched African-Americans, spit on a Latino, heckled and kicked Muslims out of rallies, and even shouted that one protestor be set on fire. Trump's Fayetteville, North Carolina rally was so violent that city law enforcement considered, then declined, to issue criminal charges against him.

The question being asked is whether Trump's words so incite his supporters' behavior, or threaten violent acts that he could be criminally liable. Under the Supreme Court's free speech principles of incitement to violence and true threats--probably not.

And it is for two primary reasons: the words themselves, and the inherent aspects of political campaign rallies.

I preface my observation by saying that I have not personally attended a Trump rally. I have only watched and read media accounts of the most controversial aspects of what has occurred. As to what I have seen, heard, and read, let me also say that the level and intensity of animus on display is both politically disturbing and personally repulsive. My point here is only to examine what the Supreme Court might say the First Amendment allows.

Incitement and true threat First Amendment concepts are guided by three seminal Supreme Court cases: Brandenburg v. Ohio, Virginia v. Black, and Watts v. United States. An "incitement" is speech that causes "a clear and present danger of imminent lawless action[.]" Brandenberg, a KKK leader, exclaimed at a rally that "the n****** should be returned to Africa, the Jew returned to Israel," and that if "our President, our Congress, our Supreme Court" continued to suppress the Caucasian race, "there might have to be some revengeance [sic] taken."

The Supreme Court overturned his criminal conviction because the Ohio statute applied failed to distinguish constitutionally-permissible advocacy from incitement to imminent lawless action. To be criminally sanctioned, the tone and content of the speech at issue must (1) expressly advocate violence; (2) advocate immediate violence and (3) relate to violence likely to occur. The facts of any case, therefore, must be applied to that three-part test.

An extension of the incitement First Amendment exception is the concept of intimidation through "true threats." Watts made it clear that some threats made in the context of rallies amount to little more than political hyperbole, and are entitled to First Amendment protection. So when Robert Watts was convicted for expressing his opposition to fighting in the Vietnam War, saying at a public rally, "if they ever make me carry a rifle the first man I want to get in my sights is L.B.J.," the Supreme Court viewed that as crude, but not a criminal, threat.

True threats, according to former Supreme Court Justice Sandra Day O'Conner, are an unlawful form of intimidation

"... where a speaker directs a serious expression of a threat to a person or group of persons with the intent of placing the victim in fear of bodily harm or death."

Just like the cross burning O'Connor was addressing in Virginia, true threats are not protected expressions because they act more like physical violence: their very utterance inflicts injury. Because incitements to violence and true threats convey no legitimate facts, ideas, or opinions, they can be criminalized.

As Rachel Maddow recently chronicled, Trump has made several comments at his rallies that arguably rise to the level of incitement or true threats:

"If you see somebody getting ready to throw a tomato, knock the crap out of them, would you? Seriously. Okay? Just knock the hell. I promise you I will pay for the legal fees. I promise."

"You know what they used to do (to protesters) like that when they got out of line? They'd be carried away on a stretcher, folks."

"We had some people, some rough guys like we have right in here. And they started punching back. It was a beautiful thing. I mean, they started punching back. ... 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."

The grammatically conditional nature of Trump's statement "if you see someone getting ready to throw a tomato, knock the crap out of them," saves it from being an incitement to immediate or imminent violence. Trumps other statements could arguably be characterized as political hyperbole like that in Watts, instead of directives to immediately engage in violence, or concrete threats to a person or groups of people.

On the other hand, one can make the case that Trump's statements are not just political hyperbole. His statement that protesters be "carried away on a stretcher," or his wistful nostalgia for treating protesters "very very rough" could be interpreted as true threats. Trump is offering serious warnings as to what should happen if protesters in attendance "get out of line."

The "protesters" and the "thems" Trump refers to are sufficiently identifiable people towards whom Trump is directing his threats. Those statements could cause certain audience members to fear for their physical safety. If, as a result of his statements, a protester becomes afraid that someone will attack him, exercises his right to protest, and someone in fact does attack him, then Trump has arguably expressed a true threat, which could not be defended on First Amendment grounds.

Campaign rallies are public events. However, candidates rent venues for their "private" purpose. As the Supreme Court in Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc. unanimously established, a critical aspect of free speech is that a speaker who chooses to speak may also choose what not to say. A speaker has a right to control his message. But that right does not in itself provide a defense to true threats.

The First Amendment does not shield Trump from protesters. As much as he has a right to speak, protesters have a correlating right to protest. At a Trump rally, a woman has a right to wear a hijab, and anyone has a right to scream "BlackLivesMatter!" or "Trump is a fascist!" Protesters can boo, hiss, chant or wave signs even if it is offensive and disruptive to the sensibilities and interests of the speaker or others in the audience. So long as protesters commit nor threaten physical contact with others, protesters are not engaged in unlawful intimidation, incitement or disorderly conduct.

A speaker is entitled to direct that protesters be removed in a lawful and peaceful manner. Moreover, if audience reactions become violent, then law enforcement may intervene by removing or arresting those who are causing or engaging in the violence. But until that threshold is reached, the government should never sanction the "heckler's veto" by removing or arresting a protester in order to prevent the anticipated reactions to protester's behavior. Yet we saw the government do just that time and again, most vividly in Fayetteville when police took down, handcuffed, and detained protester Rakeem Jones after John McGraw sucker-punched him.

Most disturbing is that we see Trump and some of his supporters engaging in their own version of the heckler's veto. Trump is effectively suppressing the protestors' right through preemptive true threats. Through intimidation and physical assault, some Trump supporters are silencing dissent.

To say that Trump may not criminally responsible for incitement or threats is not to say that he should not be held responsible for his actions. Trump should have to account for failing to own his contributions to the noxious atmosphere of his rallies, and for his distressingly disingenuous and uncritical support for his followers that engage in violence. Citizens, and above all, political leaders, journalists, law enforcement, and media must unequivocally demand that the violence cease.

Respecting everyone's First Amendment rights in the marketplace of ideas, those same actors must see to it that the racist, nativist, and xenophobic rhetoric of Trump and his supporters is put firmly in check. The esteemed Supreme Court Justice Louis Brandeis famously stated that the best antidote to false, even dangerous speech is not suppression, but more speech. Those words, written nearly 90 years ago, are especially apt today: the most effective antidotes to bad ideas are better ideas.