Donald Trump

Donald Trump's Violent Rhetoric is Protected Speech, For Now

He's come close, but Trump hasn't quite crossed the threshold of unlawful incitement to violence.

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Last week, MSNBC's Rachel Maddow

Constitutionally protected…sigh
Dreamstime.com/James Francis

tried to make the case that Donald Trump "deliberately tried to incite violence" before his aborted rally in Chicago. That's a serious charge, one that if true, would place Trump's unmistakably crude, vulgar, often bigoted rhetoric into the realm of criminality.

Trump has indeed made statements in which he seemingly encouraged his supporters to "knock the crap out of" anyone about to throw a tomato at him, opined that he'd like to punch a protester in the face, and even nostalgically longed for the "old days" where there were "consequences to protesting," like people being carried out on stretchers.

Despite the inherent ugliness of the rhetoric and the outright hostility to the Constitution demonstrated by the frontrunner for the Republican presidential nomination, a number of legal experts who focus on the First Amendment say Trump's speech has yet to cross the line into illegality.

Lee Rowland, a senior attorney at the American Civil Liberties Union (ACLU) told Frontline, "Nothing I've seen meets the very stringent restrictive definition for what amounts to incitement that is not protected by the First Amendment," because free speech remains protected as long as it is not both "imminent" and "lawless" incitement. A speaker must be directly soliciting a "specific, illegal act" before the speech becomes criminal. 

Rowland adds, "it has to be unlawful violence," meaning something like Trump's call to "knock the crap out of" someone about to assault him with a flying object would not be "an incitement to lawlessness," because the act of throwing a tomato is itself lawless and thus, another person physically intervening would be considered a lawful defense of the speaker. 

Wayne Giampietro of the First Amerndment Lawyer's Association explained to Frontline that the things Trump says at his rallies are "protected to the highest degree possible by the First Amendment" because by its very nature it is "core political speech." He adds, "That's why [the First Amendment] was conceived of in the first place."

Writing on his blog at the Washington Post, UCLA law professor (and occasional Reason contributor) Eugene Volokh explains that trying to frame Trump's rhetoric as illegal incitement to violence is complicated further by the fact that a number of states have laws prohibiting "disturbing a lawful meeting." Volokh notes that "courts have held that this is limited to speech that actually tends to shout down the speaker," but that is precisely what the protesters who have taken credit for forcing Trump to cancel his Chicago rally say they intended to do

Volokh breaks down where incitement begins and ends in a situation like this:

Calling on people to push around ordinary hecklers would probably constitute soliciting or inciting a crime (since the heckling itself isn't a crime, and thus attacking hecklers is a crime). But calling on people to push or even punch hecklers who are seriously disrupting the meeting, and effectively shouting down the speaker, may well be legal, since disrupting the meeting is a crime, using reasonable non-deadly force to stop the disruption is thus not a crime, and soliciting such use of reasonable non-deadly force is also not a crime.

Even if Trump is no friend of free speech, he's entitled to it, and thus far appears to have stayed within the legally required boundaries of the First Amendment.

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  1. Incitement to violence is a bullshit crime that denies the agency of the people who actually perpetrate violent acts.

    1. Oh, so now Trump supporters have agency.

      1. many were hired by the William Morris Agency, so yes.

      2. Do cult members have agency?

    2. What if they were under the Imperio curse?

    3. Would you say the same thing about bringing murder charges against a person who hired a hitman to kill someone?

      1. so the hitman was hired by force?

        1. I’m just saying, I don’t see the difference, morally, between directing a specific person to hurt another specific person and directing a specific group of people to hurt another person or group.

          1. I’m no lawyer (or Doctor) but when it’s a hit man paying an assassin, you’ve got more conspiracy wrapped up in the equation.

            1. Right right–I should have been more clear in my original response, instead of trying to get my point across in one-liners while dodging doing actual work.

              I (somewhat) know the state of the law and the difference between incitement and conspiracy. For the record, I don’t think Trump (through his actions at these rallies) is guilty of anything other than being an asshole.

              I was specifically responding to Hugh’s contention that “Incitement to violence is a bullshit crime that denies the agency of the people who actually perpetrate violent acts.”

              I don’t believe that’s true. The simple point I was trying to make is that there are many cases where it’s accepted (both as a legal and philosophical matter) that directing someone to do something gives you some moral culpability for what they do. I was stating an obvious case of this (paying a hitman) and postulating that the moral circumstances involved in a case of incitement to violence are similar.

              Sorry if that wasn’t clear in my original response.

              1. If you tell someone to kill themself and they do are you now guilty of murder? Manslaughter?

      2. There’s a difference between paying someone money to kill someone and saying things like “someone should knock the crap” out of someone else.

        If you can’t wrap your head around the difference, I feel sorry for you.

        1. I’m not talking about the specific case of what Trump said, since Hugh’s comment was directed at the very idea of laws against incitement to violence; I’m merely trying to illustrate scenarios under which laws against incitement could be agreeable with libertarian principles, i.e. proper application of the NAP.

          If you can’t wrap your head around the difference…

          1. There’s a big difference between contracting with someone to engage in a felony and telling someone they should go do something. The hitman only did it for the money not because they were told to. In the military, it a soldier’s duty to refuse unlawful/unconstitutional orders, and they can be court martialed for doing something illegal even if ordered to by a superior.

            Inciting to violence would have to be extraordinarily narrow (such as under the threat of death).

            1. There’s a big difference between contracting with someone to engage in a felony and telling someone they should go do something.

              I’m not sure there is, morally. I’m assuming we agree that hiring a hitman to shoot someone is morally equivalent to shooting that person yourself, because you’re deliberately putting in motion a chain of events that you anticipate will cause that person’s unlawful death. I think the same logic applies to incitement to violence–but I will caveat that by saying it only applies to the most extreme of circumstances. I’m talking about standing on a car in the middle of a riot pointing at the cops screaming “kill all the pigs” into a megaphone kind of blatant.

        2. Saying ‘someone *should* not the crap out of someone’ is NOT incitement to violence at all. Its like saying someone should be taken out back and shot or that it’d be nice if someone were fed into a woodchipper.

          The line between lawful speech and unlawful ‘incitement to violence’ is actually quite clear, sharp, and pretty damn hard to cross.

          1. Saying ‘someone *should* not the crap out of someone’ is NOT incitement to violence at all. Its like saying someone should be taken out back and shot or that it’d be nice if someone were fed into a woodchipper.

            All due respect, I doubt you have any experience with this. 😉

          2. What about “I need some muscle over here?”

          3. However, apparently saying someone should be fed into a woodchopper will shut down some speech, albeit only for a short period of time.

    4. “agency” or “autonomy”? Serious question, the person who commits the physical act may be the “agent” of the one who called for the act, but isn’t looking only at the speaker denying the “autonomy” of the one who commits the physical act?

      1. Not to defend the concept of incitement, which I find questionable, but it would not be a situation of looking only at the speaker. Both would be culpable.

    5. Not if the people who perpetrate the acts are prosecuted as well.

    6. You mean like Soros’s called to disrupt free speech?

  2. What if he starts setting up woodchippers at his events?

    1. Your subpoena is in the mail

      1. “Mail? HA!”

        *door smashes in, a dozen heavily armed US Marshals pour into room, throwing flashbangs*

        1. US declares war on Switzerland over a chippily narrowed gaze.

  3. Trump is starting to pivot to running against Hillary, and has an attack ad out.

    Attacking Hillary, Trump-style, will be a big plus for him with Repub primary voters. What could be more popular than that? It might even help Bernie indirectly, causing more disruption to the Dem machine.

    Interesting times. No matter what, Trump v Hillary will provide endless amusement.

    1. Particularly the #nevertrump democrats that also hate Hillary.

    2. I have to agree. Even though our entire experiment of a nation appears to be circling the toilet bowl I will very much enjoy the levels of shemansplaining we will see from Shrillary as Trump accuses her of being a murderer of Americans.

      Good Times!

    3. RC, you roast right? Do you have a source for green Blue Mountain?

      1. No, not unless it happens to show up in Sweet Maria’s rotation.

      2. Roast? I thought this was some new millennial lingo for some hip drug. It’s about coffee isn’t it? I like coffee, but haven’t gone all out like you guys.

    4. And endless horror as it appears that one of those two will be president.

    5. More popular? Going after the press, unless that press is the biased fox news which is where some neo cons get their news.

  4. But calling on people to push or even punch hecklers who are seriously disrupting the meeting, and effectively shouting down the speaker, may well be legal, since disrupting the meeting is a crime, using reasonable non-deadly force to stop the disruption is thus not a crime, and soliciting such use of reasonable non-deadly force is also not a crime

    Hold the fucking phone. Wasn’t there a pretty vocal contingent here arguing the other week that disrupting meetings isn’t a crime, and using force to remove the disruptors can’t be a legally justifiable option?

    1. Could you be a little less oblique?

    2. disrupting meetings isn’t a crime,

      Violating the terms on which you are admitted to a meeting makes you a trespasser, who can be removed using force.

      Punching them out is beyond the pale, but frogmarching them out isn’t. Their resistance, of course, can justify a proportional escalation.

    3. No. I don’t think a single person argued that.

    4. Burn that straw man some more.

    1. Stossel looks like he ice skates like I do.

  5. Finally, another Trump article.

    1. Another? Do you mean there have been others before this?

        1. *stands to lead sustained applause*

          1. You’ll be alone on this one, I’m afraid.

            1. I can only sustain my applause so many times.

              1. “Hey man, Gaia demands sustainability!”

            2. *narrows gaze at those who won’t join in*

              C’mon – that was clever!

              1. I’ll ask again, Swiss, are you human?

  6. another Trump-tastic day, I see.

  7. You know what Trump hasn’t done?

    Incited violence against peaceful protesters or heckler’s veto protestors. Non-peaceful protests (like throwing things) deserve a non-peaceful response. Heckler’s vetos should be shut down immediately by any reasonable means necessary.

    And, c’mon, saying you want to punch someone is a very long way from incitement of violence. Its hyperbole, puffing. Hell, I’ve said it after negotiation sessions.

    The genius of Trump is that the more this kind of pearl-clutching attack is directed at him, the more it validates his message and fires up his supporters. How you create that scenario, which I like, frankly, without a setup pointing out that the pearl-clutchers are out of bounds and deserve a strong response, I don’t know.

    1. Oops. should be:

      Incited violence against peaceful protesters or non-heckler’s veto protestors.

    2. The only question remaining is, if we make fun of Trump supporters are we punching down, and if so, is anything Trump supporters do ok, including but not limited to killing people they disagree with?

      Did I get that right?

      1. is anything Trump supporters do ok,

        Of course not. Initiation of force is not OK. Self-defense (including the prevention of an imminent attack, like throwing things) is OK. Shutting down heckler’s vetos (a favorite tactic of lefty/proggy protestors) using reasonable means, including the laying on of hands, is also OK.

      2. isn’t punching down okay when you’re doing it to the “right” people?

        1. I just get confused on who the right people are from time to time.

        2. no no no no no! If you are punching down you CANNOT be punching the right people. The right people are WCGMSs and we are all at the top of the pyramid of the patriarchical oppressive regime. BY definition attacking us is always punching up. Even if you are the President and sending goons to shoot some rancher, the Rancher is up and the President is down, because whitey.

          1. Not accepting this is what racism means

      3. *downtwinkles*?

        Wait…

        *jazz hands*

        /confused

  8. There are no good guys here, since these whining leftists are just authoritarians looking to punish a political opponent while Trump argued Pamela Geller incited violence by drawing Mohammad pictures.

    1. “Don’t antagonize them….deport them!”

      /Hat

      1. “Quiet you. After the election.”

        /Hair

        1. Are we sure the hair is not a child of Islam? It has a wave like it might be bowing toward Mecca.

    2. To be fair to philosophical consistency, is it possible Trump was agreeing that we shouldn’t antagonize Muslims because he thinks they’re crazy people without agency, and therefore prone to react in insane ways when you draw cartoons of their prophet?

      1. “The U.S. has enough problems without publicity seekers going out and openly mocking religion”

        That sounds like he’s criticizing the mockery of religion, not Islam specifically.

        1. Clearly, his beef was that the U.S. had too many publicity seekers.

          *waits for laugh from perplexed audience*

          1. HAHAHAHA….

            *looks around to see if anyone is joining in*

        2. “The U.S. has enough problems without publicity seekers going out and openly mocking religion in order to provoke attacks and death. BE SMART”

          “That sounds like he’s criticizing the mockery of religion, not Islam specifically.”

          Right, he could be talking about Mormons or Seventh Day Adventists being driven to homicidal rage.

          1. Only Muslims do that, but it doesn’t change the fact that he thinks ‘mocking religion’ ‘provokes attacks and death.’

            Fuck him.

            1. “Mocking religion” pretty fucking clearly “provokes attacks and death.”

      2. Diane/Paul, if that’s what Trump believes, then he is basically agreeing with the PC consensus.

        1. PC: Be nice to Muslims.

          not-PC: Be nice to Muslims because a significant minority are violent lunatics.

          1. There’s also a way to be not-PC while also not being a total pussy like Donald Trump: Islam is a fucked up religion and a significant minority of its adherents are violent lunatics, but I’m going to criticize them anyway

            Trump’s an idiot. Stop defending him.

            1. I was under the impression that I listed every single possible PC and anti-PC position. Thanks for clearing that up.

      3. Dunno. Sounds more like he was condemning it as being a pointless publicity-seeking stunt.

    3. There’s an important difference, Irish.

      The Mohammad contest was Pamela Geller’s idea, not Donald Trump’s idea.

      Why would Trump support someone *else’s* non-PC activities?

      There’s only room in this country for one non-PC provocateur, and Trump doesn’t want the competition.

  9. He’s come close, but Trump hasn’t quite crossed the threshold of unlawful incitement to violence.

    Let’s not oversell this. From a legal standpoint he’s not come close at all.

    1. This right here. He’s miles away.

  10. Rubio supporter tears are delicious nom nom nom nom

    Best line: “While I’m #nevertrump, I haven’t decided yet if I’d pull the lever in Cruz’s favor or just write in Tinkerbell.”

    So you’re not actually #neverTrump then because you’re not actually willing to do anything to stop him. Cool.

    1. So you’re not actually #neverTrump then because you’re not actually willing to do anything to stop him. Cool.

      Not really the same thing. Suppose there were an election between Hitler 2.0 and Stalin Part II. Are you responsible for the atrocities perpetrated by whomever wins because you didn’t vote? I guess the only way to exonerate yourself would be to try and vote for the loser?

      1. Anyone who answers in the affirmative to this ought to have their balls ruptured with a nail gun.

  11. Violent Rhetoric?

    1. Didn’t they open for the Sex Pistols on that one tour?

    2. They’re from Wisconsin.

    3. Apparently Reason is going full-retard SJW and arguing that words are weapons.

      1. Trump is about to get the nomination, we need to start looking around for kitchen sinks.

      2. Words are weapons. Sharper than knives, makes you wonder how the other half die.

      3. Maybe someone should start a line of knives with blades forged in the shape of offensive words. The website could be awesome. Words Hurt!! This month’s special the 4 inch Honky, serrated blade, drop point, comes with a lily white leather sheath.

        1. Sweet idea. Sign me up for a “Cracker” Bowie-knife.

          1. That knife will be shorter then the “Excuse me while I whip this out” Black Machete.

  12. Are there going to be any Trump stories today? Just curious.

    1. A story not about Trump is surely not a story.

      1. Agreed – it needs to have some kind of Trump angle to be legit.

  13. What about the inherent state violence Bernie Sanders is inciting when he calls for a 60% income tax, or prohibiting free markets in health care services. Or when Hillary Clinton calls for a Swat Team to fix the VA, or additional regulations on various industries?

    They’re all violent thugs, Donald Trump is just a little more explicit and honest about it.

    1. That’s outsourced violence. Totally different.

    2. It’s ok when the government does it.

      1. When? ha ha, that’s funny.

    1. I loved it when kasich had the one heckler, after they escorted him out he commented that he didn’t tell anyone to be violent against him, or rubio when trump supporters were there, or cruz when he was heckled, they both commented how nice they were and weren’t invoking violence when they are heckled. I would love to see the crowds of and types of angry hecklers trump gets go to their rallys and see how they would handle it.

  14. I love this discussion and would point out that Hilary tried to prevent the LA pastor from burning Korans because she believed it would incite Muslims to violence in Libya, not to mention the whole ‘Muhammed video’ fiasco. She believes in the ‘incitement to violence’ fallacy, but the fact that Trump is doing it shows that it’s really the followers who are at fault. As for Volokh, he usually does some good analysis, but I would point out that at rallies people are always yelling and it’s way to easy to trump the Trump with “Trump! Yes I’m on your side, Trump!”

  15. The idea that there are “legally required boundaries of the First Amendment” is itself unconstitutional and hostile to free speech. The amendment says, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” Note that it _does not_ say “..abridging the freedom of speech except for inciting violence.” Heck, protecting speech that incited violence was the whole point.

    1. There are legally required boundaries. They are coextensive with all US States, Protectorates, territories, possessions, and bases. The 1st Amendment has no power in say China.

      1. The First Amendment also doesn’t say “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances, unless it happens in China, in which case go ahead.”

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