Free, robust, and intense political debate is a hallmark of any legitimate democratic system, but recent events on the 2016 presidential campaign trail have highlighted questions of the limits of political protest and the intersection between political speech and violent action.
Recently, instances of violence at GOP presidential hopeful Donald Trump’s rallies have supporters and detractors of the billionaire businessman pointing fingers about who is responsible for the violence and whose free speech rights are being violated.
In the wake of the chaotic clash following Trump’s cancelation of a rally in Chicago due to safety concerns, this conflict is continuing to escalate. At a rally last Saturday, Trump said that protestors at his rallies should be arrested and charged. Meanwhile, North Carolina law enforcement officials announced Monday that they are investigating whether Trump would face charges of inciting a riot, which will turn on whether his speech was sufficiently responsible for provoking an act of violence that occurred at one of his rallies last week.
At the core of these debates is the First Amendment, which protects free speech, press freedom, and the right to peaceably assemble. Trump and his supporters assert that protestors are violating his right to free political expression by interrupting his political rallies and shutting them down through intimidation and violence. Opponents reject those claims, and argue that Trump’s use of what they see as dangerous language on the campaign trail incites violence and should be toned down. Furthermore, they argue that the threat of arrest for speaking out against Trump at his rallies is a violation of their rights to freely express their political opinions.
A central constitutional discussion at the heart of the North Carolina investigation is whether Trump’s speech is an incitement to violence, which is not protected by the First Amendment. In 1969, the Supreme Court determined unanimously that speech could permissibly be curtailed if it is “directed at producing imminent lawless action” and is likely to produce such action. In accordance with this precedent, North Carolina state law proscribes inciting a riot, which they define as a situation in which multiple people engage in “disorderly and violence conduct” resulting in “injury or damage to persons or property”.
In order for any possible charges against Trump or his campaign to stand up in court, North Carolina state officials would likely have to prove that it was Trump’s speech that incited the violent episode and that he intended to do so.
Other First Amendment concerns were highlighted in light of Trump’s cancellation of his Chicago rally. While it was reported that Trump voluntarily elected to cancel the rally for fear of violent protests, it raised the question of whether Trump could be held in any way responsible for disorder caused by protestors, or whether a state or local government in the future could prevent him from speaking for fear of violence. The salient First Amendment principle brought up by these questions is that of the “heckler’s veto”, or the suppression of speech by government because of the possibility of a violent reaction from hecklers.
In 1949, the Supreme Court determined in Terminiello v. Chicago that speech cannot be constrained and that speakers cannot be punished unless there is an overwhelming and clear causal link between the speech and the violent reaction of protestors. In the majority opinion, Justice Douglas wrote that speech may “indeed serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger”.
More recent decisions have upheld this principle, including one striking down an ordinance allowing higher licensing fees for speeches that would require more police presence, which presumably would disproportionately affect those that contain unpopular and controversial ideas likely to produce unrest among the crowds. Finally, in 2015 the Sixth Circuit Court of Appeals held that “punishing, removing, or by other means silence a speaker due to crowd hostility will seldom, if ever” pass First Amendment scrutiny.
One final First Amendment concern raised by this discussion is the question of whether Mr. Trump’s call to have protestors who interrupt his events arrested and prosecuted. While political speech is among the most protected class of speech, it is not absolute, and can be subject to certain time, place, and manner restrictions.
Given that the rallies held by Trump are private events and paid for by his campaign, protesters asserting that their speech rights are violated when they are removed from rallies have a hard case to make. While some interruptions and protests are permissible during public meetings in government-controlled locations, the sorts of interruptions at Trump campaign rallies do not seem to be protected by the First Amendment.
It is similarly unclear, however, whether Trump’s call to have these peaceful protestors who interrupt his rallies arrested will pass First Amendment scrutiny. Unless these interruptions amount to an incitement of violence under the “imminent lawless action” standard, Trump opponents doubt whether legal punishment is justified or whether these interruptions are even illegal.
Some commentators have pointed to H.R. 347, a federal law signed by President Obama in 2012, and say that these disruptors could be prosecuted under this statute. The statute makes it a crime to “knowingly…engage in disorderly or disruptive conduct in…any restricted building or grounds when such conduct, in fact, impedes or disrupts the orderly conduct of Government business or official functions”. The statute then goes on to define “restricted buildings or grounds” to include any restricted area of a building in which someone protected by the Secret Service is visiting.
Given that Hillary Clinton, Bernie Sanders, and Donald Trump all have Secret Service protection, some fear that this could apply to disruptors at political campaign rallies. Others claim that this fear is overblown, and doubt that campaign rallies count as “Government business or official functions” under this statute.
While the breadth and content of constitutional rights have in the past been discussed on the campaign trail, this cycle is a bit more unique in that real First Amendment conflicts surrounding campaigns are playing out in real time. Perhaps these episodes will underscore the importance of discussion about constitutional issues during election years, and provoke even more of the debate that the First Amendment is intended to protect.
Jonathan Stahl is an intern at the National Constitution Center. He is also a senior at the University of Pennsylvania, majoring in politics, philosophy and economics.