Not Covered Under the First Amendment: The ACLU Is Wrong About Trump and Incitement to Violence

Last week, federal judge David Hale ruled that Trump’s exhortation for the audience at a March 2016 rally in Louisville, Kentucky, to “get ’em [three protesters] out of here” could be incitement. That is unusual enough to make headlines, especially because the defendant is Donald Trump. But the real shocker is that last week, the ACLU publicly defended Trump. The ACLU has defended Trump. The ACLU. Donald Trump. Defended.

I am a professor of law at the University of Louisville. I studied constitutional law with Erwin Chemerinsky at the University of Southern California and I received a PhD in Law at Queen Mary University of London. I have previously written on comparative constitutional law, including freedom of expression. And, I have to say, Judge Hale’s opinion was almost shocking to me. Incitement always seemed to me, from my early days in law school, to be this almost impossible standard that has resulted in a remarkably unchanging doctrine. I haven’t heard of an incitement argument being accepted by a court in years, if not decades.

That all changed earlier this month. The incitement case against Trump, Nwanguma v. Trump, was filed after three protesters said they were physically assaulted at a Trump rally. The three protesters, who stated they were at the rally to protest peacefully, were allegedly shoved and punched by rally attendees. The entire exchange was captured on film and widely broadcast in the media. In their lawsuit, the three plaintiffs have alleged that the violence occurred as a result of Trump’s command to his audience to get them out of the building. Their claim that Trump incited the crowd is part of their argument that Trump’s speech should not be protected by the First Amendment, leaving him open to the rest of their legal claims. [Disclosure: The lawyer representing the plaintiffs in the case against Donald Trump and his supporters has written for Salon.]

What makes the Trump incitement case so unusual is that it concerns political speech, both from the alleged inciter and the victims of the incitement. Political speech, particularly speech at political rallies, is basically the sweet spot for First Amendment protection. You can’t get much more in tune with what the Constitution was meant to protect, at least according to the Supreme Court.

So what happens when political speakers collide, literally? On one hand you have the protesters, silently holding signs that insulted or criticized Donald Trump. (Ms. Nwanguma held a poster of Mr. Trump’s face transposed on the body of a pig.) This is clearly political, protected speech. On the other hand, you have Donald Trump, a fiery presidential candidate, telling adoring masses about his candidacy and how he wants to make the country better. Again, political speech.

Whom is the First Amendment supposed to protect?

According to Trump’s lawyers, Trump did not commit incitement because forcefully ejecting the protesters was not an unlawful act. Why? Because the protesters were trespassing. By conflating property owners and property possessors, Trump’s attorneys actually argue that people who come to a public rally can be subjected to violence if the people who are using the space at the time decide that they don’t want them there. Somehow, it was the trespassers silently holding signs that were breaching the peace and not the people shoving and grabbing at them.

Another argument made by Trump’s lawyers is that when he said “get ’em out of here,” he meant to do it nicely. Apparently, Trump’s later statement “don’t hurt them” proves his intent was for a calm, peaceful removal of the protesters. Again, this intent is belied by the video of the event as well as Trump’s prior statements about protesters. As Judge Hale noted, Trump’s “don’t hurt them” was said much more meekly. Compared to his fiery and repeated prior orders to eject the protesters, this statement does nothing to show that Trump was not getting exactly what he wanted when the crowd forcibly ejected the protesters from the building.

Trump’s attorneys have also attempted to minimize the impact of Trump’s prior statements that advocated violence against protesters, arguing that the plaintiffs identified only three prior speeches that included advocacy of violence against protesters, and no violence occurred then so those speeches don’t provide valuable context for the Louisville rally. However, three prior speeches where a presidential candidate specifically approved of violence against protesters who attended his rallies is actually a lot. Certainly a lot more than other presidential candidates, who generally don’t advocate violence at all. It is disingenuous to ignore the build-up of highly publicized rhetoric or to act as though Trump’s prior statements were not in his fans’ minds that day. Unsurprisingly, Judge Hale did not agree with any of these assertions.

No, it is the ACLU that has jumped to Trump’s defense after Judge Hale issued his decision. According to Lee Rowland, a staff attorney for the ACLU, although a “close” call, Trump’s speech did not amount to incitement.

Rowland actually agrees that what Trump’s supporters did was unlawful because the protesters were not entitled to protest at Trump’s privately run rally. As Rowland notes, Trump had the right to tell them to leave. Unfortunately, that’s not what Trump did. He didn’t talk to the protesters; he spoke to the crowd and told them to eject the protesters. Second, Rowland argues that Trump “disavowed violence” simply by adding “don’t hurt them” later, noting that Trump also told the crowd “I can’t say ‘go get ’em’ or I’ll get in trouble.” Judge Hale found that to be evidence that Trump didn’t really mean to call off the mob; he just didn’t want to be blamed for his own actions. For some reason, the ACLU is a lot kinder to Trump than a federal judge.

The final piece of the ACLU’s defense of Trump, and the one that gets deepest into First Amendment cases, is Rowland’s argument that Trump’s words were not “likely to incite violence.” To make this argument, Rowland brushes off the claims of one of the assailants who counter-sued Trump by arguing that he did take Trump’s words as an order, which he obeyed.

In this Bizarro-World scenario, this bleeding-heart-liberal legal academic has to come out and say something I didn’t think I would ever have to say: I think the ACLU is wrong. I think ACLU has misinterpreted the requirements for incitement.

The seminal incitement cases cited in the ACLU blog were decided in the 1960s and 1970s and involved civil rights issues or anti-war protests. Brandenburg v. Ohio involved a filmed speech of a Ku Klux Klan leader burning a cross and giving a speech that denigrated black people and stated that they might need to take “revengeance” against the government if it continued to suppress the Caucasian race. According to the Supreme Court in Brandenburg, that speech was not incitement because, in order to legally incite a crowd, you can’t just be “advocating” for criminal activity, you have to be “preparing a group for violent action and steeling it to such action.”

The other cases cited by the ACLU in its defense of Trump largely say the same thing. Hess v. Indiana (an anti-war protestor who said “We’ll take the fucking streets later”) and NAACP v. Claiborne Hardware (civil rights icon Charles Evers, who threatened to “break the damn neck” of anyone who broke the boycott) both show that threats aren’t enough. It has to be aimed to produce a response, and an immediate one. Hess’s speech wasn’t incitement because there was no immediate call to action. Evers’ speech was also just a threat, and one contingent on someone acting a certain way in the future. Threats, no matter how graphic, do not constitute incitement.

Since then, incitement has been argued in a surprising variety of cases, and almost always unsuccessfully. For example, incitement claims have been unsuccessfully tried against violent video gamesgiving advice on how to be a successful gang member, and requesting (but not possessing) child pornography. It is not unexpected that these — and I’m being charitable here — creative arguments for incitement did not persuade the courts to expand its reach. In those cases, there was no command to violence and the resulting harm (if any was found) was too temporally removed from the speech.

But there have been some recent cases where a court has allowed a claim of incitement to go forward, and those cases shed some light on what is happening here. A 2009 case, United States v. Stewart, found that a spiritual leader’s publicized withdrawal of support for a cease-fire could be seen as “a call to arms” to his followers to commit violence, placing it in the realm of incitement.

Another 2009 case, United States v. Fulmer, found potential incitement where leaders of an animal rights group used their website and email to urge “supporters to participate in [illegal] electronic civil disobedience at a specified time.” The defendants were found to have engaged in incitement because they clearly had control over the timing of the illegal “virtual sit-ins” that clogged websites of targeted companies — they stated when a “virtual sit-in” was to start and, when they announced it had been successful, the “virtual sit-in” stopped.

Both Stewart and Fulmer show how incitement can be found in modern scenarios, and Trump’s speech fits right in. Indeed, Trump’s order to “get ’em out of here” is a much more explicit “call to arms” than the statements made in Stewart. The immediacy of his order — the implied “get them out now” — makes the harm more imminent than in the case of Fulmer.

And the most damning piece of evidence against Trump, and the ACLU’s defense of him, is that his other statements approving of violence against protesters clearly are not incitement. Just looking at two of the most offensive of Trump’s statements made at prior rallies shows the difference — the legally significant difference — between what was said before and what was said in Louisville.

First, at a rally on Feb. 1, 2016, Trump told the crowd “[i]f you see somebody getting ready to throw a tomato, knock the crap out of them . . . Just knock the hell out of them. I promise you, I will pay for the legal fees.”

Like the speech made by Evers in the Claiborne Hardware case, Trump’s words at the February rally were not orders or commands to an audience because they contained a contingency: Act violently only if something specific happens. The contingency is key because it removes the immediacy and the command aspects of the speech. Instead, the speech is just advocacy of potential future violence if certain conditions are met.

At his Feb. 23 rally, which was mere days before the Louisville rally, Trump told the crowd, “[h]ere’s a guy, throwing punches, nasty as hell, screaming at everything else, when we’re talking. . . I’d like to punch him in the face, I tell ya.” This statement is even further from incitement. It’s a statement of approval of violent action, but it isn’t even suggesting that others engage in that behavior.

That’s what makes the Louisville rally so unique. Trump didn’t say “we’ll get them out” or “if they don’t leave, we’ll take them out.” There was no promise of future violence, no contingency upon which violence could occur. He didn’t express a desire to inflict violence or say he hoped that someone would get them out. He told his audience to “get ’em out.” It was a call to act, to get the protesters out of the building. Immediately. According to the complaint, at the Louisville rally, Trump spoke, knowing that violence was likely to occur as a result of his words. And violence did occur.

Rowland’s main point in her article is that we shouldn’t allow our distaste of Trump to allow courts to shrink the protections of the First Amendment. To that argument, I would counter that we shouldn’t allow our love of the First Amendment to blind us to the fact that a man commanded a room to use force against peaceful protesters. Donald Trump’s words don’t deserve First Amendment protection, even under the very stringent Brandenburg standard. What he did was precisely why the incitement doctrine was created — to stop speech that leads directly to violence. This was not advocacy; it was a call to arms.

With all due respect to the ACLU, what Trump did was textbook incitement. The First Amendment should provide him no safe harbor.


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