Stop It. Trump's Lawyers Did Not Say That Protestors Have No First Amendment Right To Dissent

from the yes,-well,-about-that dept

If you’re wondering why people who support Donald Trump can repeatedly claim that various mainstream publications traffic in “fake news,” look no further than the ongoing news coverage of a lawsuit that was filed against his campaign by three protestors. Yes, we know that reporting on legal issues by mainstream publications is bad, but the reporting on this particular case is so bad that over and over and over again it directly states, or at least implies, things that are simply not true. Over and over and over again, the press has taken fairly mundane and expected aspects of this lawsuit and taken them out of context, misreported them and generally suggested they meant things they absolutely did not. And, of course, every time, the reporting has made the President look bad. It should be quite clear by now that I’m not a fan of the President, who I think may be the least qualified person in office ever, but this particular case is a perfect case study in the kind of biased bad reporting, which will cling to anything to attack the President.

So if you’ve heard reporting recently about how a Trump supporter was suing the President for inspiring him to violence against a protestor, or how a judge said Trump incited violence at a rally, or how Trump’s lawyers claimed there’s no right to protest the President at rallies or that the President is claiming that protestors violated his First Amendment rights, then you’ve been had. None of those are accurate depictions of what’s happening. And, amazingly, these all refer to the same exact case. A case where the press can’t help themselves but to report everything in misleading ways.

Let’s take a step back and explain the details. It’s actually an ongoing and fairly interesting lawsuit against President Trump, which we haven’t yet covered. Last year, three people who had attended a Trump rally with the intent of protesting sued Trump and his campaign, saying that the then-candidate for President had incited violence against them by telling the crowd to “get ’em out of here” when protestors interrupted his speech (and also saying “in the old days, which isn’t so long ago, when we were less politically correct, that kinda stuff wouldn’t have happened. Today we have to be so nice, so nice. We always have to be so nice”). Notably, he also said, “Don’t hurt ’em. If I say ‘go get em,’ I get in trouble with the press, the most dishonest human beings in the world.”

Now this has some potentially interesting First Amendment issues buried in the case. And it would be nice if someone were actually reporting on those. The complaint itself accuses Trump and his campaign of assault and battery, and tries to get around the clear First Amendment issue (all Trump did was speak) by arguing incitement. As you hopefully know by now there are a very small number of very, very, very limited exceptions to the First Amendment. And those exceptions are extremely narrowly defined, such that they often do not mean what you might think they mean colloquially. In this case, the key hook the plaintiffs are aiming for is that Trump was inciting imminent lawless action (the assault and battery). There are a number of cases on this topic, but without going way deep into the First Amendment weeds, the key one is Brandenberg v. Ohio, in which the Supreme Court said you couldn’t punish more abstract advocacy of violence, but rather the speech had to be “advocacy… directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”

Do Trump’s comments at his rallies reach this standard? I don’t know. It’s generally a pretty tough hill to climb, and if I had to make a prediction in the case, I’d bet that the speech in this case doesn’t reach the bar to make it exempt from the First Amendment. And there are a number of reasons that a court may never actually decide this anyway. But, suffice it to say, it’s pretty rare for the vast majority of speech to meet the qualifications to meet this test, and people who think that someone saying something mean or racist or obnoxious is not protected by the First Amendment are… generally speaking, going to be wrong.

So, back to the reporting in this particular case. Ken “Popehat” White has already done two explainers on why the first two examples of bad reporting above were wrong, so I’ll give you the shortened version on those. The judge in the case did not say that Trump incited violence. Instead, Trump and his campaign filed for a motion to dismiss, which is a pretty standard first move in lots of cases. Quick lesson in civil procedure from a non-lawyer: when you file for what’s known as a 12(b)(6) motion to dismiss, you’re basically saying “even if all the facts in the complaint are absolutely accurate, there’s still not enough there to meet the bar to bring a claim here.” That is, this is what you do before you even bother disputing the facts. You tell the court “it doesn’t matter whether the complaint is accurate, because even if accurate, that’s not enough to state a claim.” Or, as Ken explains:

A federal motion to dismiss under Rule 12(b)(6) might be described as saying “so what if I did” ? the court takes facts stated in the complaint is true and determines whether they are legally sufficient to support a claim. A judge doesn’t take conclusions at face value, but must accept facts in the complaint as true. Think of the distinction like this: if my complaint just says “Patrick defrauded me,” the judge doesn’t have to take it as true, and can find it insufficient. But if my complaint states the underlying facts ? “Patrick offered to sell me a horse, and I gave him $10 for the horse, and when he delivered it, it was a pony,” the court must accept it as true and determine whether that’s fraud. The Supreme Court has complicated the issue a bit by saying that the allegations must be plausible, but that only means that the complaint must contain factual content that supports necessary inferences supporting the claim. So, for instance, if I said “Patrick conspired to hide a pony in my room, I know because Patrick hates me, and yesterday I found a pony in my room” might not be plausible, because it does not plead any facts supporting my accusation that Patrick is responsible for the pony. But “Patrick told associates to ‘introduce Ken to my little friend Benny The Hoof,’ and the next day I found a pony in my room,” that’s factual pleading that is plausible.

A judge turning down a motion to dismiss — as happened in this case — is not saying that the allegations in the lawsuit are true. The judge is just saying that the facts in the complaint by the plaintiff meet the bar that if they are true satisfy the elements of the claims in the complaint. So, in this case, the judge found that the protestors’ complaint met the bar that if (and this “if” matters) everything in the complaint is taken as true, then there’s enough there that Trump’s statements might not be protected by the First Amendment, and thus he did incite imminent violence. But, again, this is just based solely on the complaint itself, before any sort of defense has been put forth that either raises issues about the facts claimed, or presents mitigating defenses and the like. The judge didn’t say that Trump incited violence — he just said that the complaint itself met the burden that the case could move forward to see if Trump incited violence.

On the second story, concerning one of the Trump supporters who is accused of attacking the plaintiffs in the case, that individual, Alvin Bamberger, is not suing Trump claiming that Trump made him do it, but rather his answer to the initial complaint basically says, “if I’m found liable, you should actually blame Trump for making me do it.” Again, to Ken’s analysis:

Bamberger’s cross-claim is utterly mundane ? a legal way of saying “it’s not my fault, it’s my codefendant’s fault, and he should pay.” It’s extremely misleading to portray it as if Bamberger independently sued Trump for damages for Trump. He’s not asking Trump to pay him, he’s asking Trump to pay if and only if Bamberger gets hit with a judgment. He’s not even asking Trump to pay his attorney fees, which would have been a more aggressive (but probably not legally supportable) argument. But you wouldn’t know any of that by reading the coverage.

On to the most recent claims that came out Friday, first reported by Kenneth Vogel in Politico, that Trump’s lawyers are claiming there’s “no right” to protest at his rallies or which the Independent claims is Trump saying that protestors violated Trump’s First Amendment rights — those are very, very bad misreadings of what’s actually being said. You can (and should) read the filing in question here (or below).

Now, as you recall from the (mis)reporting above, the judge in the district court rejected Trump’s 12(b)(6) motion to dismiss, and Trump and his campaign are looking to appeal that at this point in the process (rather than waiting until the district court case goes further — a so-called interlocutory appeal). In most cases, you can’t appeal at this stage, but sometimes a court will recognize that an issue is important enough that it will effectively stop the proceedings and allow a key question in the case to move “upstairs” to an appeals court. What the filing is doing is asking the court to let that happen here: to “certify” specific questions to be sent up to the appeals court and also put the district court case on hold while that appeals process plays out. Basically, Trump’s lawyer wants to get that ruling on the motion to dismiss reviewed as quickly as possible before the case moves forward in lower court. This doesn’t happen that often, but it does sometimes occur in First Amendment cases, under the reasoning that if the speech turns out to be protected the burden on the speaker is at least somewhat minimized (that is, it’s better to settle these issues now rather than drag a speaker — regardless of whether or not that speaker is the President of the United States — through the next stage of court proceedings). Specifically, Trump and his campaign want the appeals court to review these two questions:

(1) Whether the First Amendment protects Mr. Trump?s campaign speech as a matter of law, or whether the speech falls within the narrow category of expression that can be subject to censorship for ?inciting a riot?
(2) Whether the First Amendment precludes holding a speaker liable for negligently causing others to engage in violence.

Interesting enough First Amendment questions, certainly. In the filing asking the court to certify these questions, Trump’s lawyers make a few different points, basically to make it clear that these are important First Amendment issues that deserve being looked at by the appeals court now, before the lower case continues. But a key one that they are making is that part of the First Amendment’s “freedom of association,” a campaign has the right to exclude those who disagree with the campaign. Specifically, there are cases out there that make it clear that if you’re holding a political rally, you have a First Amendment right to exclude those who disagree with you because of your own freedom of association under the First Amendment. The key case here is Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston. Trump’s argument here is simply that based on this pretty well accepted view of the law, his campaign, at a private event, has the right to stop protestors from speaking and escort them out of the venue. That’s… nothing special. It’s kinda standard and widely accepted law. Notably, Trump’s own filing makes it clear (contrary to what you would think from Politico’s blaring headline) that the protestors certainly have their own First Amendment right to dissent against the President — but they don’t have the right to insert themselves into his political rally. It’s really pretty straightforward:

At the threshold, the forum for this speech was a political campaign rally. Like any other private assembly to achieve ideological goals, political campaigns have a core First Amendment right to associate for the purpose of expressing a particular message, which necessarily includes the right to ?exclu[de] . . . views [that] [a]re at odds with positions [the campaign] espouse[s].? Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp. of Boston, 515 U.S. 557, 580 (1995). Accordingly, when a campaign has ?decided to exclude a message it d[oes] not like? from a campaign rally, ?that is enough to invoke [the campaign?s] right as a private speaker to shape its expression? by excluding or expelling demonstrators who express contrary viewpoints. Id. at 574. Of course, protestors 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. Indeed, forcing the ?private organizers? of a political rally to accept everyone ?who wish[es] to join in with some expressive demonstration of their own? would ?violate[] the fundamental rule of protection under the First Amendment, that a speaker has the autonomy to choose the content of his own message.?

Of course, this is being spun. Lots and lots of people are picking up Politico’s headline and pretending that Trump’s lawyers are arguing that protestors have no right to dissent. But that’s not what is being argued at all. He’s saying — as a pretty damn accurate recounting of very settled law — that since they were putting on a private event, they have every right to exclude those with different viewpoints seeking to disrupt the event under his own rights of free association.

But, because some are so eager to slam Trump and position him as a wannabe dictator stamping out free speech (which he may well be — but that’s not what’s happening here in this case), they’re grabbing part of that argument, entirely out of context, and devoid of any understanding of settled law in the matter, and spinning it. And, amazingly, this is even happening with people who should know better, such as Harvard Law professor and constitutional scholar Laurence Tribe. I have tremendous respect for Tribe and his knowledge of the Constitution, but in the last few months, it seems his hatred of Trump is interfering with his more traditional ability to actually look at the issues carefully. Tribe tweeted the following and then pinned the tweet:

If you can’t read that (or if Tribe comes to his senses and deletes the tweet), it’s responding to another similar article and says “That’s a novel view of the 1st Amendment. And by ‘novel,’ I mean totally wrong as a matter of text, history, precedent, and principle.” Except, it’s Tribe who’s wrong. And, yes, I know that some will quickly run to our comments and note that Tribe is one of the world’s most respected constitutional scholars, and I’m not even a lawyer. And, you’re correct. But seriously, go and read the actual filing, not the hype around it, and then check the sources. Go read the Hurley decision. What Trump’s lawyers are arguing is fairly standard and established law. It’s not anything crazy, and for folks like Tribe to argue that it’s “totally wrong as a matter of text, history, precedent, and principle” makes me wonder if Tribe actually read the filings in the case, or simply jumped to some conclusions from the headlines or articles.

Again, it should be quite clear by now that I’m no fan of Donald Trump as President. I think his grasp on a variety of issues is atrocious (including free speech — an issue I’ve written about many times). But critics of the President don’t do anyone any favors in exaggerating a fairly standard legal argument, based on sound legal principles, by taking those filings out of context and putting giant misleading headlines on them. Indeed, all it really serves to do is to validate the claims by Trump supporters of the press being biased against the President and engaging in “fake news.”

Update: And of course, in the time that I was getting this story together, Ken White also wrote about it and his analysis is (of course) good as well.

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Comments on “Stop It. Trump's Lawyers Did Not Say That Protestors Have No First Amendment Right To Dissent”

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44 Comments
Steve Swafford (profile) says:

Thank you

I really appreciate seeing this. I have all but given up on reading news anymore because I just can’t trust the writing at all. It’s not reporting anymore it’s spinning everything to whatever you want it to mean. I think you guys are great and I trust your reporting and believe you’re fair and honest, even if sometimes you don’t agree with it. Bravo man.

Wendy Cockcroft (user link) says:

Re: Re:

Indeed, there is also a Putin derangement syndrome; neoliberal Dems are doing this at the moment: “De Russkies done stole de election. Hillary should be our president. Waaaah! We want Obama back,” etc. It’s hilarious if you’re in the right mood. Not a fan of Trump but this is the wrong response if you don’t like him — there’s a plethora of true things to call him out for.

Rule of thumb: the more histrionic the headlines, the less attention you should pay to them.

Great reporting, Mike! 🙂 I love how you acknowledged a personal bias (you don’t like Trump) but insisted on telling the truth about these cases. If only the other reporters could follow your example.

Heh! I can’t help wondering if any of them has been involved in the outcry against fake news. In this case, they’re the ones purveying it. Once people realise that they might be on the hook for any attempts to “crack down” on it they might find themselves less willing to support such measures.

Anonymous Coward says:

Ahhhh... come on TD!!!

Here I have bashing you for your Anti-Trump leans and now you do this! I have to give you a nod now… this is NOT how it is supposed to work!

But either way, like another poster said, I do appreciate that TD has more integrity than many other places, which I why I stick around even though you have told me to leave more than once now!

That said, keep roasting Trump, I am betting you will have more than enough material to work with coming in the next 4 years.

DannyB (profile) says:

What about these quotes?

“Enhanced interrogation works”

“We have to beat the savages”

“knock the crap out of them… I promise I will pay for the legal fees”

“They should have been roughed up” (protesters)

“Nothing you can do folks…although, second amendment people, maybe there is”

“you have to go after their family”

“she’s at best, a 6”

Anonymous Coward says:

I find it funny that the least qualified person to be President is TRUMP. I hope that’s sarcasm. After all we just had 8 year of OBAMA. A person who was only in the Senate for 2 years before throwing his hat into the ring for President. Who voted mostly Present because he didn’t want to stand by anything he voted on. A person with ZERO experience running anything.

In fact Obama was so bad, he has taken 1st place away from Carter as the worse President in modern times. This is a President that created ISIS and made terrorism far, far worse. A President that dropped far, far, far more bombs onto people killing far more Civilians. Of course Code Pink had nothing to say about that. Just another Democrat group that really didn’t care about the bombs, just hated Bush. Now we’re here again with all the hate of Trump.

Anonymous Coward says:

Re: Re:

Speaking of creating ISIS.

I wonder if the terrorists would have a change of heart if instead of bombing their homes we built them new ones. Instead of killing their loved ones we provided them with medical assistance to save their lives.

If some other super power was killing my family and bombing my home I’d want to exact revenge by any means possible.

Wendy Cockcroft (user link) says:

Re: Re:

Obama kept on Bush’s neocon picks so ended up retaining many of the Bush foreign policies by default. This is why I’m constantly surprised by people who call him left wing. Can we please all agree that “Not a member of the Republican party” doesn’t mean “left wing?”

Very rough rule of thumb:

Left wing: Working people first.
Right wing: Ruling caste/business first.
Liberal: Maximum individual and corporate freedom.
Green: Environment first.

Conservatives occur in either of the four groups above (e.g. left wing conservatives tend to yearn for the days of “a job for life, social programs to see you through from the cradle to the grave” and have had to be called out for sexism and other negative socially conservative attitudes and behaviour. Over here, the Tories have been making mincemeat out of them over their never having had a woman leader. The UK Conservative Party has had two: Margaret Thatcher and Theresa May.).

I’ve got sympathies with many of the policy positions held by people and politicians in each of these due to my religious faith and belief in the importance of community and tradition. I know there’s a massive disconnect between what their ideological theories and practice are and I know they can all be dreadfully authoritarian.

Which brings me to my final point: National Review’s David French has called out the practice of engaging in cults of personality over influential individuals, refusing to acknowledge their failings while bashing the opposition. This needs to stop. I’ve got issues with Obama AND with Trump because both men have been behaving badly. Obama got away with it because he’s not a flippin’ boor. Trump is.

Anonymous Coward says:

Re: Re: Re:

How can one say the left wing in the U.S. is about the working people first? This type of comment feeds into the bipartisan mentality that has carried us to the face of the cliff were standing on. The left isn’t “for the people” any more than the right is “business first”. It’s all a smoke screen to gain power and then do exactly what they want. Time and again the politicians prove this is the case, and time and again we fall for it. Stop being a victim.

Wendy Cockcroft (user link) says:

Re: Re: Re: Re:

I know there’s a massive disconnect between what their ideological theories and practice are and I know they can all be dreadfully authoritarian.

I know, I know, I know. But this is what they’re supposed to be all about; it’s what they tell us they’re about.

Shame you’re so damn right. [Sad but True]

So yeah, this is the problem I have with partisan politics; they mislabel “All The Things!” in an effort to gain power for themselves. I’m no victim, I’m a realist. And I don’t trust one of them.

The Wanderer (profile) says:

Specifically, there are cases out there that make it clear that if you’re holding a political rally, you have a First Amendment right to exclude those who disagree with you because of your own freedom of association under the First Amendment. The key case here is Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston. Trump’s argument here is simply that based on this pretty well accepted view of the law, his campaign, at a private event, has the right to stop protestors from speaking and escort them out of the venue.

That’s interesting.

My own visceral reaction is "a political rally is not a private event; it’s a public gathering", and to reject this conclusion on that basis. I rather suspect that I’m not the only one who thinks of these types of events in this way.

I can, however, see problems with that statement as a potential rule/ruling, and potential reasons why it could lead to undesirable results. That said, the fact that I can see that doesn’t change the initial reaction.

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