Trump Using The First Amendment to Suppress Political Protest.

With Trump egging his followers on, violence erupted at many of his campaign rallies. Litigation was sure to follow and it most definitely has. It should surprise no one that the litigation has taken strange twists even early in the process.

The Case of Nwanguma et al v. Trump.

On March 1, 2016 some protesters appeared at a Trump rally at a convention center in Louisville Kentucky. Shortly after they began an otherwise peaceful protest, Trump shouted from the podium to “get them out of here.” Members of the crowd pushed and punched at the protesters, until they were removed from floor.

Those so treated have sued. The plaintiffs sue those who assaulted them, and Donald Trump for his role in it, charging him with inciting a riot.

Denial of Early Motion To Dismiss.

Trump’s attorneys sought early dismissal for failure to state a cause of action, something attorneys call a Rule 12(b)(6) motion. The legal standard at this early stage is simply whether the allegations in the plaintiffs’ complaint are sufficient to sustain a lawsuit. The plaintiffs’ allegations are all presumed true at this stage.

Trump’s lawyers argued the lawsuit against him should be dismissed because a “plausible” interpretation his comments were that he was directing program security to throw out the protesters, not the crowd. In his opinion the judge properly rejected that argument because who it was directed to is a factual dispute. Plaintiffs allege the comments were directed to the crowd and that is sufficient at this stage.

Trump’s lawyers argued the facts only support that Trump might have negligently encouraged the assaults, as opposed to the intentional standard required by the Supreme Court in a case called Brandenburg v. Ohio. Again, the question of whether it was intentional or negligent was a fact issue inappropriate for resolution at this early pleading stage. Plaintiffs allege it was intentional, which is sufficient.

The Request for Interlocutory Appeal.

With their Rule 12(b)(6) motion rejected, Trump’s attorneys have now filed a request to appeal that decision. This is called an interlocutory appeal because it appeals an issue within a case before the case itself is resolved. Appellate courts are reluctant to take interlocutory appeals before final resolution at the lower courts. After all, what if Trump later wins the case at the lower court? Review by the upper court would not be necessary if that happened, the particular at issue now decision rendered moot.

So the standard for this kind of appeal is high, but Trump’s attorney’s nonetheless are trying.

Trump’s Claim The First Amendment Allows Him To Eject Protesters.

A key aspect of the appeal is a claim that Trump’s shouting to “get them out of here” was a lawful protection of his own 1st Amendment rights to convey and control his own message, and that reasonable force to achieve that end is permissible. Trump attorneys argued:

“Like any other private assembly to achieve ideological goals, political campaigns have a core First Amendment right to associate for the purpose of expressing a particular message, which necessarily includes the right to ‘exclude . . . views that are at odds with positions [the campaign] espouse[s] . . . Accordingly, when a campaign has “decided to exclude a message it does not like” from a campaign rally, “that is enough to invoke [the campaign’s] right as a private speaker to shape its expression” by excluding or expelling demonstrators who express contrary viewpoints . . . Mr. Trump obviously had a First Amendment right to exclude the Plaintiffs from his campaign rally, and it is a bedrock principle of law that “the right to exclude another . . . includes the right to use reasonable force.”

Thus, Trump’s attorneys argue that even assuming Trump’s order was directed to the crowd, and assuming it was an order to use force that it was a “perfectly lawful . . . command to expel protestors who are interfering with the expressive association rights of a political campaign rally.” The argument is that the protesters have become “unwelcome trespassers” and that the law allows the reasonable use of force to remove them. His lawyers directly claim:

Thus, even if Mr. Trump implicitly instructed the audience to remove the protestors by using force if necessary, his speech was still entirely lawful and protected under the First Amendment unless he advocated a greater degree of force than was necessary under the circumstances.

The key case cited for this 1st Amendment right to exclude dissenters from private political rallies is Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp. of Boston, 515 U.S. 557, 580 (1995). In it the City of Boston sought to exclude the Irish-American Gay, Lesbian and Bisexual Group of Boston (GLIB) from its annual St. Patrick’s Day parade. The Supreme Court unanimously upheld the right of the city to do so stating “One important manifestation of the principle of free speech is that one who chooses to speak may also decide what not to say.” Justice Souter argued that including GLIB, and its banners, could be viewed as an endorsement by the city of GLIB’s message something the city had an interest in preventing. Gay groups would be barred from the Boston parade for 20 years until the court of popular opinion demanded their inclusion.

You might find the Court’s decision repugnant, but that is most likely because you support GLIB’s message. Suppose we substituted the KKK carrying overtly racist banners in the city’s parade? Would you support the city’s right to exclude that?

In any event, the city’s right to deny a parade participation permit hardly seems analogous to statements made in a frenzy that encouraged violence. Suppose GLIB marched anyway and city officials encouraged the crowd (not the police) to “get the gays out of here” and members of the crowd physically assaulted gays? I think the Supreme Court might have felt differently about that.

The simple truth is that most politicians do not react to protests at their rallies by calling on the mob to physically assault them as Donald Trump repeatedly did.

This pattern from Trump was cited by the judge in his decision to let the plaintiffs’ action proceed at this stage. It is a very disturbing pattern and our courts should not allow it to become the new normal or it won’t be long before someone is seriously hurt, or killed, by a mob supposedly protecting a demagogue’s 1st Amendment rights.




Retired lawyer & Army vet in The Villages of Florida. Lifelong: Republican (pre-Trump), Constitution buff, science nerd & dog lover. Twitter: @KeithDB80

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Retired lawyer & Army vet in The Villages of Florida. Lifelong: Republican (pre-Trump), Constitution buff, science nerd & dog lover. Twitter: @KeithDB80

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