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.