Is it a crime to encourage an audience to physically attack hecklers?

Donald Trump speaks at a campaign rally in Bloomington, Ill., on Sunday. (REUTERS/Jim Young)

Donald Trump has at times suggested that some disruptive audience members at his rallies be beaten up. Lots of people have asked: Could making such suggestions be criminally punished? Indeed, North Carolina law enforcement seems to be asking this question right now. (I think that a political candidate's advocating such attacks is bad for a democracy, even if it is legal, and reflects badly on the speaker; but that is a separate matter from the legal question, and my expertise extends only to the legal question.)

There are two parts to this question, it turns out. First, can someone be punished for calling for violence, if the violence is illegal? Second, would the called-for violence actually be illegal? (I will only set forth the law here, and not opine on whether particular statements of Trump's were or weren't illegal, since much turns on the exact circumstances in which each statement was made, how it was intended, and how it was reasonably understood.)

1. a. Advocacy of crime in the abstract—"it's good to beat up hecklers," "we need a violent revolution," "cops should be shot"—is protected by the First Amendment. But there are two related exceptions to such protection:

1. Speech that is intended to and likely to produce imminent crime (i.e., in the coming minutes or hours or possibly a few days) may be punished as "incitement."
2. Second, speech that is intended to produce a specific crime, even at some time in the indefinite future (e.g., "you should all vandalize the local draft office / abortion clinic / etc. when you have a chance"), may be punished as "solicitation."

One famous incident of punishable solicitation came in People v. Rubin (Cal. Ct. App. 1979): Irving Rubin of the Jewish Defense League said at a press conference, "We are offering five hundred dollars, that I have in my hand, to any member of the community, be he Gentile or Jewish, who kills, maims, or seriously injures a member of the American Nazi Party. This offer is being made on the East Coast, on the West Coast. And if they bring us the ears, we'll make it a thousand dollars. The fact of the matter is, that we're deadly serious. This is not said in jest, we are deadly serious." That, the court held, was solicitation; and I think the result would have been the same even if he had just exhorted people to attack Nazis, with no money-for-ears deal, or money for anything else. (How specific does the call have to be, for speech to become punishable solicitation rather than protected abstract advocacy? The courts haven't yet come up with a firm answer, sorry to say.)

b. Thus, when a speaker is telling an audience at a rally to do something right away to a particular person (e.g., "slap that guy across the face"), that would probably constitute both incitement and solicitation, if what he's urging is a crime. When he's telling an audience to do something to anyone who does something (e.g., "punch any hecklers you hear"), that would also probably constitute incitement and solicitation, even though it's conditional (again, if the thing being encouraged is a crime).

To be sure, it's possible that there'll be no occasion for people to commit the act, because no one heckles anyone. But if someone does heckle, then the speaker will have been encouraging an attack on that heckler. That sort of conditional incitement or solicitation is likely punishable (see, e.g., People v. Miley (Cal. Ct. App. 1984)).

2. But such speech could be punishable incitement or solicitation only when the thing being encouraged is a crime. Not all physical attacks, especially ones using nondeadly force, are criminal: some are generally legal, if they are reasonable defense of oneself or of others, or if they are aimed at preventing the continuing commission of a breach of the peace.

a. In particular, it's generally legal to use reasonable nondeadly force when necessary to prevent another from using nondeadly force. (One can generally only use deadly force against more serious threats, such as of death, serious bodily injury, rape, kidnapping, and in many states robbery and some other serious crimes. Note also that we're now turning to questions of state law, not of First Amendment law, so the answer may vary from state to state; I'm giving here my best sense of the dominant view throughout the country.)

So "if you see someone trying to throw something at me, knock 'em down" might well be solicitation or incitement of lawful defense of others (here, defense of the speaker by the listeners whom he is asking to do this), and thus not a crime. Likewise for "if someone punches you, punch 'em back." To be sure, whether it's legal to punch someone in response to an earlier punch is a bit complicated (e.g., if you punch them too much, that might be an excessive response, or if you punch them in response to their punch when you started the incident by grabbing their property), but such statements don't have to offer a thorough legal analysis; the speaker can reasonably expect that the listeners would use reasonable force in response to such a general response, even if some might use unreasonable force.

It's also generally legal to use reasonable nondeadly force when necessary to defend property—and thus to solicit people to do this. "If you see someone trying to tear down the signs, physically pull him away" would be lawful, since it would call for lawful defense of property. And it's generally legal to use reasonable nondeadly force when necessary to eject trespassers. "Hey, you, I rented this hall; get the hell out of here; and, friends, if he doesn't leave, you can drag him out" would likely be a solicitation of a legal act.

But the force has to be necessary. If the person is already leaving in response to the demand that he leave, then dragging him out bodily would likely be illegal (unless there's reason to fear that he would do something else that requires him to be restrained as he is being ejected). And if the call is for excessive force, well beyond what is necessary—"if someone tries to throw a tomato at me, beat him up"—may well be seen as a call for illegal use of force, because such serious force (even if nondeadly) isn't necessary to stop the tomato-throwing. (Much depends, of course, on the circumstances, including how the speaker intended his statement to be understood, and how reasonable listeners would have understood it.)

b. It's also generally legal to use reasonable nondeadly force when necessary to prevent or stop the commission of certain misdemeanors. As a leading treatise (LaFave on Criminal Law) puts it, "One who reasonably believes that . . . a misdemeanor amounting to a breach of the peace, is being committed, or is about to be committed, in his presence may use reasonable [moderate, nondeadly] force to terminate or prevent it." The Model Penal Code takes the same view; I can't speak with confidence about whether all states adopt this approach, but it seems to be the dominant one, and perhaps even unanimous or nearly unanimous.

This means that if state law criminalizes the particular sort of heckling involved in the case, then it's likely legal for people to tackle or drag off the heckler to stop him from heckling (since the heckling, if criminalized, would likely be a breach of the peace). And then it would be legal for people to incite or solicit such actions against hecklers.

On the other hand, if the heckling is legal under the particular circumstances and in the particular state, then attacking the heckler in order to stop the heckling is likely illegal. And the speaker's urging people to do that would likewise likely be illegal.

It turns out that many states do criminalize "disturbing a lawful meeting"—but, generally speaking, courts have held that this is limited to speech that actually tends to shout down the speaker. Ordinary heckling (and even things going beyond ordinary heckling) generally doesn't count as criminal, just as ordinary applause generally doesn't count as criminal, even if it in some measure interferes with the speaker's speech.

And, to make things complicated, the courts tend to draw the line differently depending on the characteristics of the meeting, and the customs that courts see as having arisen for such meetings: whether it's in a public place, whether it's open to the public (as opposed to only to ticketholders), what the customs of this sort of meeting are, whether the speaker has specifically asked the hecklers to stop, and so on. For more on this subject, see this post from earlier today.

So 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 nondeadly force to stop the disruption is thus not a crime, and soliciting such use of reasonable nondeadly force is also not a crime.

3. What about civil liability? Generally speaking, speech that is protected by the First Amendment against criminal punishment is likewise protected against civil liability. Conversely, if speech is unprotected solicitation or incitement, and it persuades a listener to attack someone else, the victim of the attack could sue the speaker. One difference is that, in a civil case, the plaintiff would generally need only to show the relevant facts are, more likely than not, in the plaintiff's favor (though there are some arguments that the plaintiff might have to show the facts by "clear and convincing evidence" rather than just under a more-likely-than-not standard). In a criminal case, the government would have to prove the facts beyond a reasonable doubt.

4. Note that none of this has to do with controversies about "hate speech" (there's no "hate speech" exception to the First Amendment), or about "false shouting fire in a crowded theater" (also not a specific First Amendment doctrine, though I agree that falsely shouting fire in a crowded theater may indeed be punished as a harmful falsehood, at least if the shouter knows that there's no fire).

(Disclosure: I am no supporter of Donald Trump; indeed, I've contributed to Ted Cruz.)