Why Trump’s Violent Rhetoric Is Protected Speech
Last month, Republican presidential front-runner Donald Trump mused aloud about his feelings toward a heckler in Nevada: “He’s walking out like big high-fives, smiling, laughing. I’d like to punch him in the face,” he said to a roar of approval from the crowd.
Then last week, one of his supporters allegedly did just that. John McGraw was charged for sucker-punching a black protester in the face at a rally in Fayetteville, N.C. McGraw was later shown in a video saying that the best part of the rally was “knocking the hell out of that big mouth.” He added that if he saw the protester again, “we might have to kill him.”
Trump later said McGraw “got carried away. He obviously loves his country, and maybe he doesn’t like seeing what’s happening to the country.” Trump also said he would consider paying the man’s legal fees.
On Monday, the Cumberland County (N.C.) Sheriff’s Office said it was reviewing Trump’s speech from that night to consider whether the candidate could be charged with inciting a riot.
“We are concerned about a number of things in that speech,” Ronnie Mitchell, an attorney for the office, told local outlet WRAL. “We are concerned about activity associated with that speech. That does not mean that we have decided to charge anyone.” Later, a spokesman told The Washington Post that it was unlikely the sheriff would charge Trump.
It would have been a difficult case to make. Despite its often hostile tenor, Trump’s rhetoric so far appears to fall within the protections for free speech, according to First Amendment experts.
“Nothing I’ve seen meets the very stringent restrictive definition for what amounts to incitement that is not protected by the First Amendment,” said Lee Rowland, senior staff attorney at the American Civil Liberties Union.
Here’s the test: To lose free-speech protection, what you say must incite action that is both “imminent” and “lawless.” In other words, it must be a direct call for others to go out and commit a specific, illegal act.
That doesn’t mean that Trump hasn’t on occasion approached that line, Rowland said.
At a rally in Cedar Rapids, Iowa in February, Trump said he heard from his security detail that protesters might be planning to throw tomatoes at him:
“So if you see somebody getting ready to throw a tomato, knock the crap out of them, would you? Seriously. OK? Just knock the hell– I promise you, I will pay for the legal fees, I promise. I promise.”
“That comes closer,” Rowland said. “But it has to be unlawful violence. If a candidate is saying, ‘Respond to someone acting in an inappropriate way,’ that would not be an incitement to lawlessness.”
Ultimately, anything Trump says would have to clear a high bar in large part because he is a presidential candidate speaking at political rallies, making his the type of speech that the courts have most fiercely protected, she and others said.
“Core political speech is protected to the highest degree possible by the First Amendment,” said Wayne Giampietro, general counsel of the First Amendment Lawyers’ Association. “That’s why it was conceived of in the first place.”
Still, Trump’s rhetoric has few precedents in modern presidential politics, said Gabriel Lenz, an associate professor at the University of California at Berkeley who focuses on the social psychology of elections. Lenz said the most analogous campaign he could recall was that of George Wallace, the segregationist Alabama governor who first ran in 1968. “It’s a similar form of populism, and his rallies were also known for being tumultuous,” he said.
But Wallace was never the frontrunner for a major national party. “You can maybe argue that there’s no real modern precedent for this sort of thing,” Lenz said. “I don’t think if you could call it quite incitement, but some of the rhetoric seems to condone violence,” he said, such as Trump’s offer to pay the legal fees for the supporter arrested for punching a protester.
On Monday, Trump told CNN that he doesn’t condone violence, and that his supporters aren’t the problem. “They are very calm,” he said. Trump later said: “No one gets hurt at my rallies,” adding that they are like a “love-fest.”
Trump added that the protesters who come to his rallies are infringing on his own right to speech.
“He’s not inciting anyone,” Barry Bennett, a Trump senior advisor, told CNN later that day.
A spokeswoman for Trump’s campaign didn’t respond to an email seeking a comment.