Jason Harrow  //  5/12/17  //  Commentary


On a previous episode of Versus Trump, Take Care's podcast, my co-hosts and I debated whether President Trump could be held liable for inciting violence that erupted at a campaign event in Kentucky last year. I took the position that it would ultimately be dangerous for a court to find that the President should pay damages to protesters who attended the rally and were injured by other attendees who reacted violently to the President's statement to "Get 'em out of here"—that is, to get the protesters out of the event.

Not everyone agrees with me that the President's speech should be protected. And I acknowledge that what happened in Kentucky was not an isolated incident: violence at the the President's rallies were all too common. But, in a hard case like this, I worry that punishing a speaker for remarks made at an organized rally, with professional security, about issues of public importance will have grave repercussions that ultimately outweigh whatever justice might be had for the plaintiffs in the Kentucky case by holding Trump liable—as opposed to the actual perpetrators, who absolutely should be held accountable for their actions.

The First Amendment usually protects even dangerous, odious speech made in these organized settings. Famously, it protected a Ku Klux Klan member who suggested at a rally that the group take "revengeance" against groups of people the Klan did not like, such as African-Americans and Jews. A few years later, the Supreme Court reversed a disorderly conduct conviction of an anti-war protester who had said that he would "take the fucking streets." And so on.

Protecting most speech made in these settings, even speech about violence, is an important principle to reinforce in today's political climate, because Donald Trump is not the only one accused of incitement. Organizations that are part of the Black Lives Matter movement have also been sued for inciting violence, in one case by the father of a police officer killed during a protest by a sniper in Dallas. That lawsuit accuses Black Lives Matter of starting a "civil war between blacks and law enforcement" that lead directly to the death of the officer.  

It is not difficult to imagine many more of these lawsuits filed against those affliaited with protest movements if shadows start to fall on the First Amendment's typically bright line. Those who claim injury as a direct or even indirect result of rhetoric used at future Black Lives Matter protests, or Women's Marches, or even Science Events—hey, Bill Nye can get pretty enthusiastic—may be tempted to sue the organizers in addition to those who actually got violent. It's important that the speakers in these cases be able to secure swift dismissals of what will likely be meritless cases filed more to harass than to actually obtain damages. After all, the longer these cases can drag on, the more expensive they'll get, and the more onerous it will be to hold political rallies and to speak out. 

To be sure, the Kentucky lawsuit is different than the ones against Black Lives Matter, because there is a tighter connection in Trump's case between the words and the alleged injuries. But, as one of the defendants said in a brief seeking dismissal of the Black Lives Matter case, that lawsuit should be tossed because it "attempts to shift liability for the death of [the police offcer] from his admitted murderer" to those in the protest movement. And that is the bottom-line: absent truly extraordinary circumstances, punish the folks who actually got violent, not the speakers.

As we've learned, President Trump has many characteristics of a schoolyard bully. Well, my Mom taught me long ago how to do deal with most of them: "sticks and stones may break your bones," she said, "but names will never hurt you." I guess that stuck with me, because I'm still much more comfortable punishing the stone-throwers than the name-callers. Even when the name-caller is the President of the United States.


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In a perfect world, federal election law would distinguish between foreign governments involving themselves in U.S. elections and foreign nationals doing so. Unfortunately, we don't live in that perfect world because of the Supreme Court.

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7/12/17  //  Quick Reactions

The Knight First Amendment Institute at Columbia University and seven Twitter users filed suit yesterday against the President, the White House Press Secretary, and the White House Director of Social Media.

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The Campaign Legal Center