President Donald Trump’s lawyers want judges to dismiss a lawsuit over violence at his campaign rallies because protesters don’t actually have the right to dissent inside his speaking halls.
People can “express dissenting views” but “have no right to do so as part of the campaign rally of the political candidates they oppose,” Trump’s team argued in a Thursday court filing.
The case involves the avowed white nationalist Matthew Heimbach, who physically assailed a black woman named Kashiya Nwanguma as she protested inside a Trump rally in Kentucky in 2016. Heimbach, Trump, and the Trump campaign are co-defendants. Heimbach recently argued to the court that Trump and his campaign are the only people who should be liable for what rally attendees did or didn’t do to Nwanguma that day.
Fellow Trump supporter Alvin Bamberger helped Heimbach and is also named in the suit. His lawyers argue, as Heimbach does, that their client would never have done anything to Nwanguma if Trump hadn’t told him to. “To the extent that Bamberger acted, he did so in response to — and inspired by — Trump and/or the Trump Campaign’s urging to remove the protesters,” they wrote in a recent filing.
The supporters’ arguments and Trump’s own thus appear to be at odds. But Trump’s lawyers aren’t denying that supporters acted in response to what he said — they’re saying he was within his rights to try to remove protesters, with physical force, and is not culpable if the force they actually used went beyond what was necessary to get protesters out of the building.
Video shows Nwanguma being shoved roughly through the crowd. “You know in the old days, which wasn’t so long ago, when we were less politically correct,” Trump says at the podium as she’s pushed out. “Today we have to be so nice, so nice, so nice.”
— Christina Mora (@ChristinaWLKY) March 2, 2016
Trump’s team has already failed in one attempt to get the case dismissed. The new filing reasserts the same arguments and demands that an appeals court hear weigh in on whether Trump’s political speech and encouragement of rough-handed crowd control by supporters are protected by the First Amendment before the case proceeds.
Trump actually has a good shot to win out on the legal arguments. The lawyers are invoking a venerable legal architecture around First Amendment issues.
The protesters’ own speech rights do not entitle them to demonstrate against Trump inside his own meeting, the filing argues, pointing to a unanimous Supreme Court decision from 1995. (That case arose from very different circumstances, with the court ruling a Catholic group could exclude LGBT rights marchers from a parade, but the Trump team sees the same logic applying to sign-waving dissenters inside an electoral campaign rally).
The high court’s standard for differentiating protected speech from illegal incitements to violence is settled, and stringent enough to be helpful to Trump here. The courts have indeed held that political rallies have a special version of the same rights of exclusion that apply to anyone hosting an event, up to and including the use of some amount of reasonable physical force to remove dissenters.
While court precedent is stacked in the president’s favor here, the Sixth Circuit could still decide that the pattern of Trump statements around political violence during the campaign merits fresh scrutiny. The Supreme Court’s incitement test dates back to 1969 — long before cable news and social media reshaped the communication between political speakers and their audiences, and longer still before academics started formally studying the indirect relationships between violent rhetoric and real violence.
At the Kentucky rally from which this case arises, Trump followed his call to “get them outta here” by saying “don’t hurt them” a moment later. His lawyers argue that caveat shows that whatever Trump supporters did, the then-candidate himself had not encouraged anything unlawful.
He didn’t show any such restraint at various other related moments during the campaign. In Vermont in January, he told fans and security to steal protesters’ coats and throw them out into the snow. He said repeatedly, both on the stump and in television appearances, that his protesters had earned a punch in the face — a notion that flirts with the legal line between reasonable and unreasonable violence. He repeatedly used the same kind of ‘in the old days’ formulation heard in the Louisville video to invoke nostalgia for a time when beating the crap out of political opponents was normal, and even offered to pay for supporters’ legal defense if they hurt somebody.
A court would have to make a leap to factor Trump’s broader body of ruffian demagoguery into this specific Kentucky case. But the atmosphere he created among his followers arguably plays a role in evaluating their acute response to specific moments on the trail.
Academics — but not lawyers — have established a working definition of the relationship between the vibe a political speaker creates and separate, specific violent acts which seem to correspond to that vibe. When Trump suggested that “Second Amendment people” might do something to stop Hillary Clinton, for example, law professor David Cohen likened the vaguely ominous line to the violent rhetoric of anti-abortion extremists.
Trump fans called the “Second Amendment people” line a joke. To Cohen, it was an example of “stochastic terrorism” — the academic name for the idea that when someone riles up an audience by validating the idea that their enemies might be stopped through violence, some small number of the people listening will get it into their heads to go out and commit real violence. “Stochastic” is a fancy stats term for something that is predictable but random. When speech seems to inspire “stochastic terrorism,” the speaker can claim indemnity for the violence because it was committed by a random listener not invited by a specific solicitation.
The murdered abortion doctor George Tiller is perhaps the most famous victim of this mass-communications phenomenon, though the North Carolina man who shot several people at a Colorado Planned Parenthood clinic in 2015 because he wanted to “save the babies” also fits the bill. The American military took the extraordinary step of killing a U.S. citizen without trial because the man in question — Anwar al-Awlaki — was so successful at inspiring random citizens to attack people and property on behalf of a deformed interpretation of Islam.
In the context of the giddily righteous anger of Trump rallies, which saw multiple violent but non-fatal assaults of political opponents, the “stochastic terrorism” concept developed to describe more serious forms of violence might feel misplaced. But despite the heavy-handed jargon of the academic label for this phenomenon, it is a useful tool for interpreting the practical relationship between Trump’s approach to opponents at the microphone and what Trump zealots do off-stage.