Trump can’t stop protests at rallies, say legal experts
In the midst of a protest-laden tour through California in June, then-presidential candidate Donald Trump took to Twitter to suggest that his fans were ready to do battle with raucous hecklers if necessary.
“My supporters are far tougher if they want to be,” Trump tweeted after protesters clashed with the Republican’s followers outside rallies in Orange County and San Jose. “But fortunately they are not hostile.”
Since then, Trump appears to have come even closer to sanctioning a physical response to protesters at his rallies — even after taking office in January. In a court case arising out of a different campaign incident last year, Trump is arguing that people who attend his rallies have no right to protest or express disagreement with him and can be forcibly removed if they try.
Trump’s lawyers took that position in a recent federal court filing in answer to a lawsuit by three protesters who were attacked at a
March 2016 campaign rally in Louisville, Ky., after Trump, then seeking the Republican presidential nomination, said, “Get ’em out of here.”
The same arguments, if accepted by the courts, would apply to the campaign-style rallies Trump has held since taking office. Unlike presidential appearances before the general public, those rallies are financed by his 2020 reelection fund, and thus arguably subject to greater restrictions on those who attend them.
At an April 29 rally in Harrisburg, Pa., when protesters waved Russian flags at the president, he again called out, “Get ’em out of here,” and security guards dragged the protesters away.
“Protesters have their own First Amendment right to express dissenting views, but they have no right to do so as part of the campaign rally of the political candidates they oppose,” private lawyers for Trump’s campaign said in the April 20 filing in U.S. District Court in Louisville.
While denying that Trump had encouraged violence, the lawyers said he “had a First Amendment right to exclude the (protesters) 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.”
Some legal commentators saw the two sides of free speech rights on a different scale.
“They may have the right to say attendance is by invitation only, and the right to exclude people who don’t have an invitation,” said Rory Little, a law professor at UC Hastings in San Francisco. “But they can’t tell people they don’t have a right to protest.”
Protesters can be ordered to leave, and be physically removed if they refuse, but they can’t be assaulted, Little said. He said the distinction, in disputed cases, would be left up to a jury.
Jesse Choper, a UC Berkeley law professor and, like Little, a former Supreme Court law clerk, said he saw little difference between a president’s official appearances and campaign rallies.
“If he wants to have a private talk, he ought to have it in his office,” Choper said. He said protesters can’t be allowed to “censor the speaker” by drowning Trump out with shouts, but they should at least be allowed to hold up signs — or Russian flags — as long as they can’t be converted to weapons.
Daniel Farber, another Berkeley law professor, said he was leery about the willingness by Trump’s lawyers to condone the use of force against protesters.
“The state has an interest in preventing violent acts and requiring people to use legal channels,” Farber said. “An abortion protest might violate the rights of a clinic, but that doesn’t mean the clinic people have the right to beat them up.”
The suit was filed by three people who said they went to the March 2016 rally to protest peacefully. One of them, according to news reports, held a sign showing Trump’s head on a pig’s body. They said they were shoved and punched by Trump supporters after the candidate told the audience to “get ’em out of here.” As they were being attacked, the plaintiffs said, Trump called out, “Don’t hurt ’em. If I say, ‘Go get ’em,’ I get in trouble with the press.”
The three sued two rally-goers for assault and sued Trump and his campaign for incitement. In refusing to dismiss the lawsuit, U.S. District Judge David Hale ruled March 31 that there was evidence Trump’s “Get ’em out” exhortation was directed to his supporters — not to security guards, as his lawyers said — and that he was advocating the use of force.
The lawyers broadened their argument in their latest filing, dated April 20, describing issues they plan to appeal to a higher court. Trump never advocated violence, they said — citing his “Don’t hurt ’em” plea — and it was actually the protesters who interfered with the candidate’s right to communicate with his chosen audience.
“Mr. Trump was not ‘inciting a riot’ but was rather exercising a core First Amendment freedom when he said, ‘Get ’em out of here’ and ‘Don’t hurt ’em,’ ” his attorneys said. At most, they said, he was advocating the use of reasonable force, and can’t be held responsible if “the crowd reacted with unlawful violence.”