(Bloomberg View) -- President Donald Trump’s lawyers are trying to rewrite the First Amendment. In defending a civil suit against Trump by protesters who say they were roughed up in one of his campaign rallies, Trump’s legal team has advanced two claims that either misstate or substantially overstate constitutional doctrine.
First, they assert that speakers can’t be held liable for inciting violence unless they use words that expressly call for violence -- a position that would protect the most well-known incitement in literary history, Mark Antony’s “Friends, Romans, countrymen” oration. This is wrong, and the U.S. Supreme Court has never said so.
Second, Trump’s lawyers assert that protesters have no First Amendment rights at a public campaign rally. This position is based on the idea that a campaign rally is like a parade, in which, the Supreme Court has held, organizers can limit participation. Yet a public campaign event is an archetypal space for the exchange of views -- completely unlike a parade.
In the old days, the test used to determine whether speech could be prohibited for inciting violence was Oliver Wendell Holmes’s famous “clear and present danger” test. But since 1969, the controlling precedent is the almost equally famous case of Brandenburg v. Ohio. The court wrote then that the First Amendment protects even advocacy of breaking the law unless “such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”
That’s a pretty stringent test, but it still allows the government to punish or impose civil liability for speech under some circumstances. If a speaker stands in front of a crowd and calls for a lawless action -- like manhandling someone -- and the words are likely to produce that result immediately, the Brandenburg precedent allows liability.
To be sure, some intensive analysis of the facts is necessary to know whether Trump’s actions at that particular rally met the standard.
It seems to be common ground that candidate Trump said of the protesters, “Get ’em out of here,” then added, “Don’t hurt ’em.”
Imminence was certainly satisfied. Whatever was going to happen to the protesters was going to happen immediately after Trump spoke. It’s also clear that Trump intended for bystanders to take steps to remove the protesters.
The hard question is whether Trump intended to incite violence or lawless action against the protesters.
Trump’s lawyers say that his “statements cannot be ‘incitement’ because he did not make any mention of violence or lawless action” and in fact specifically said “Don’t hurt ’em.”
That can’t be the legal standard. If the speaker knowingly incites violence, the meaning of the words in context matters, not their literal sense.
The classic example is Mark Antony’s speech in Shakespeare’s “Julius Caesar,” which is given after Mark Antony has promised Brutus he would not blame the assassins in his funeral oration. Following the promise only literally, Mark Antony praises Brutus as “an honorable man” while whipping the mob into a frenzy that becomes a riot, in turn signaling the beginning of the end for the assassins.
If Trump’s lawyers were right, the Brandenburg precedent would make it impossible to prosecute a speaker who used sarcasm or subterfuge to produce a riot. It’s possible that, in context, “Don’t hurt ’em” could have meant the opposite of what the words literally mean.
The other extreme claim by Trump’s lawyers is that he had a First Amendment right to expel the protesters because the campaign rally “necessarily includes the right” to exclude views that are at odds with the campaign’s positions. The basis for the claim is a 1995 decision, Hurley v. Irish-American Gay Group of Boston.
The Hurley case says nothing about a campaign rally. It holds that the organizers of Boston’s St. Patrick’s Day parade had the right to exclude a gay group of marchers because the parade was a form of expression, and the organizers could keep out groups that didn’t convey its intended message.
Trump’s analogy isn’t completely out to lunch. Last year, evaluating this analogy, which I thought of as original, I wrote that “it may be that the organizers would have the right to seek the removal of even silent, peaceful protesters if their presence were judged to detract from the event’s meaning.”
But at the same time, I pointed out removal from a rally “couldn’t be accomplished by violence or intimidation, which would itself be unlawful.”
And I added, rightly I think, that “the circumstances might be different in a public park than they would be in a private venue.”
On closer reflection, I’d say that there is a real difference between a rally that takes place in a controlled private space like a stadium and a rally that takes place in a public park.
A public campaign rally seems like the quintessential forum for the exchange of public views. The speaker can’t be shouted down -- even Trump has a right not to be made subject to a heckler’s veto. But the speaker also can’t be protected utterly from counterprotests, especially those that don’t stop him from getting his message heard.
To hold otherwise would allow one private person -- the candidate -- to monopolize public space for his message to the exclusion of a countermessage. That’s not constitutionally possible in a classic public forum like a public park or rally.
The Supreme Court may have to weigh in to hold that a rally isn’t the same as a parade. If so, that would be a welcome guidance -- especially since Trump seems committed to continuing his rallies even when there’s no formal campaign going on.
This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.
Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His seven books include “The Three Lives of James Madison: Genius, Partisan, President” and “Cool War: The Future of Global Competition.”
To contact the author of this story: Noah Feldman at nfeldman7@bloomberg.net.
To contact the editor responsible for this story: Stacey Shick at sshick@bloomberg.net.
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