As I watch Donald Trump marching across America, I've thought a lot about the limits of free speech. His rhetoric has me wondering if Trump realizes that there are limits -- especially on using language that is invoking demonstrable physical harm to others.
Perhaps the most recognized limit to free speech was established by United States Supreme Court Justice Oliver Wendell Holmes, Jr. in the 1919 case of Schenck v. United States-- a case testing the limits of WWI protest speech.
As a part of the unanimous opinion of the court, Holmes wrote:
The most stringent protection of free speech would not protect a man falsely shouting fire in a theater and causing a panic. [...] The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.
So we have to ask ourselves, is what Trump currently saying at his rallies inciting violence, promoting intolerance to the extent that it would pass Holmes' "substantive evils" test?
Later challenges to this decision included the 1969 case of Brandenburg v. Ohio, a case involving the local leader of the Ku Klux Klan against the State of Ohio. Additional tests were added to Holmes' "clear and present danger" to prove that speech was also likely to cause imminent harm before it could be proscribed. Put another way, as described by J.S. Mill,
An opinion that corn dealers are starvers of the poor, or that private property is robbery, ought to be unmolested when simply circulated through the press, but may justly incur punishment when delivered orally to an excited mob assembled before the house of a corn dealer, or when handed about among the same mob in the form of a placard.
So the next question we have to ask ourselves is this: is Trump inciting imminent acts of violence, doing it in front of a group of excitable people who could, under the right conditions and presented with the right scapegoats, turn into a mob?
YES!!!! One need look no farther than the daily string of reports from Trump rallies to see both tests, "clear and present danger" and "imminent harm" are satisfied. The type of rhetoric flowing from Trump rallies -- "Knock the crap out of them," "I'd like to punch them in the face," "They'd be carried out on a stretcher" -- are clear violations of Trump's lawful right to free speech, because he continually encourages the kind of behavior which constitute nearly instantaneous "substantive evils"-- protesters being assaulted, a photographer being strangled by the Secret Service, another reporter being knocked to the ground, and violent clashes between Trump and anti-Trump factions.
When asked about the now-routine acts of violence and rioting taking place at his rallies, Trump's response is that people are angry and they are merely expressing that anger. But how does he explain the fact that it is only at his rallies that this anger is taking a physical expression? Might it be that attendees are responding to the level of both hate and physical violence he is personally promoting? Huffington Post writers Sam Stein and Dana Liebelson confirm, "Assaults are committed not only by rowdy Trump fans, but by the staff he employs to keep the events safe. But rather than denounce these incidents, Trump is making them part of his brand, and uses them to rev up crowds."
His "brand" is a license to bully, to street fight, to use all available means to quash voices of opposition. "There may be somebody with tomatoes in the audience," said Trump in Iowa. "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." This, perhaps, is Trump's most specific incitement to date- the equivalent of riling up an angry mob "standing before the house of a corn dealer."
In a less specific threat, but just as ominous tone, Trump also made this statement after demonstrators shut down a Trump rally in Chicago. "If conservative Republicans ever went into his rally, you would see things happen that would be unbelievable..." A bit oblique perhaps, but given his record to date in calling for punching, stretchers, and "knock-outs" it seems a safe inference that Trump is again asking for something physical to happen. This is made more credible by the fact that he posted a tweet telling Sanders to "be careful."
Christine Todd Whitman, the former Republican Governor of New Jersey and a cabinet member in the administration of George W. Bush said in an interview,
"You can't dial back the emotions he's excited in people easily... There will be consequences for that."
So before it is too late, before the violence Trump has unleashed turns deadly, let the consequences be for Trump, rather than for the nation. There is a legal mechanism in place to limit his rhetoric of violence. There is a way to check his ability to make further entreaties for intolerance. Trump is falsely shouting fire in a crowded theater, exciting in people passions of fear and hatred based on false premises. The Supreme Court has ruled that inciting imminent violence through speech is outside the protections of the First Amendment. Trump needs to be held accountable for the damage his language has already caused, held accountable by fines or incarceration, within the laws of the states in which his words have done harm. It's unclear what Trump thinks he is doing through his current aggressive and bullying strategy; in actuality he is violating the law and endangering the safety of 'the people' he is campaigning to serve.