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Trump’s Lawyers Prove They Have No Idea How the First Amendment Works


Yesterday, Donald Trump’s lawyers filed a motion in an ongoing case brought by three Trump protesters who allege they were roughed up and thrown out of a Trump campaign rally in 2016. During the rally in Louisville, Kentucky, then-candidate Trump called from the stage to, “get ’em outta here!” The Trumpeters did just that, and protesters Kashiya Nwanguma, Molly Shah, and Henry Brousseau say that they were battered by the angry crowd on their way out.

The protesters’ claim against Donald Trump won’t be an easy win for plaintiffs, because it requires a bit of domino-effect theory. Trump’s statements are alleged to have “incited violence,” and because that violence actually occurred, Trump should be on the hook for having caused it. Given that Trump’s statements don’t contain clearly violent directives, and that he also made the follow-up statement, “Don’t hurt ‘em,” the plaintiffs have a tough road ahead of them. But in classic Trump fashion, even when the law is potentially on their side, his people manage to get it all wrong.

The motion filed yesterday asks the court to “certify an interlocutory appeal” in the case.  This kind of motion is basically a request for the court to answer a legal question now, and save everyone the time and expense of going through the discovery process, when the answer to that legal question may end the entire case. That’s the part that makes sense.

The part that doesn’t make sense is the substance of the motion. Trump’s lawyers argue that Trump’s statements from the campaign stage couldn’t possibly have incited violence, because those statements are protected by the First Amendment. What’s more, the protesters had no legal right to express their views, and their choice to do so somehow interfered with Trump’s exercise of his First Amendment rights. In other words, if the question is “who suffered harm at that rally,” Trump’s answer is “it’s not you, it’s me.”

If that sounds like a bizarre argument grounded in narcissism and bordering on the Kafkaesque, that’s because it is. Let’s start with the basics. The First Amendment, in general terms, prohibits the government from interfering with an individual’s speech or expression. There are limits there, because not all speech is protected – but even if we’re talking about garden-variety peaceful speech, the First Amendment only prohibits the government from interfering with it. That’s why we don’t see lawsuits for “violation of First Amendment Rights” filed against private people every time one person tells another to shut up.

In the good ol’ days of March 2016, Donald Trump was still [wonderfully] just a private citizen. The protesters at his rally were also private citizens. Since none of these people were acting in any official government capacity, none of them could even have potentially violated anyone else’s First Amendment rights.

Speech, like many actions, has consequences. Some of those consequences are legally actionable. The laws under which one person may sue another for harming him or her with speech (such as libel, slander, invasion of privacy, etc.) create a right to sue for certain categories of “unprotected speech.” But even in those cases, a plaintiff must prove harm caused by the defendant’s speech; the First Amendment isn’t related to those lawsuits other than that it doesn’t provide a defense for an otherwise tortious defendant. If a shopping-center patron punches you in the face over a parking-spot dispute, that person can’t defend your assault and battery lawsuit by claiming, “it’s a free country!” It is a free country.  And that’s totally irrelevant to your lawsuit. This is that same concept.

Somehow, though, Donald Trump’s lawyers didn’t go to law school the day they taught how tort law works. In their pleadings, they stated:

“Plaintiffs obviously interfered with the Trump campaign’s First Amendment right … when they attended a Trump campaign rally and began vigorously expressing their disdain for Mr. Trump, including by “h[o]ld[ing] up a sign depicting [Mr.] Trump’s face on the body of a pig.”

The thing is, though, private people can’t “interfere” with a person’s Constitutional rights. The protesters allege that Trump’s stage statements to “get ‘em out of here,” incited violence. Maybe that’s true and maybe it isn’t. Maybe the level of force used to expel them from the arena was justified and maybe it wasn’t. Maybe they suffered compensable injuries and maybe they didn’t. Those are all questions “of fact” for the plaintiffs to prove during the course of their lawsuit. But a question of whether a political candidate’s free expression rights were infringed by separate actions of other private individuals is a far easier one. They weren’t, because the First Amendment (and all the other ones too) limits the powers of the government, not the actions of private individuals.

In addition to believing the First Amendment provides some sort of blanket defense to all wrongdoing, the Trump legal team also seems a little confused about where the rights of the protesters begin and end.  In their motion pleadings, they wrote:

“Of course, protesters 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.”

Actually, protesters do have a right to express whatever views they like during a campaign rally. There might be consequences (such as ejection from a private event) for their political speech, but the expression of dissenting views  wouldn’t be grounds for a valid arrest or other government sanction at a campaign rally or anywhere else.  By conflating the idea of the protesters “rights” with “private consequences,” the Trump team shows that in its mind, Donald Trump the candidate and the American government as an entity were one and the same. Candidate Trump may have had authority to throw out anyone he wanted, for whatever reason he wanted, but that’s very different from people having “no right” to speak.  Furthermore, no matter Trump’s own right to eject objectionable persons from his rally, there is no basis for him to commit other torts while doing so.

I was quite taken with the Trump team’s attempt to divert the Court’s attention and mischaracterize the entire basis for the Plaintiffs’ lawsuit.

“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.’…

Mr. Trump and the campaign had every right to expel the protestors from the event. Accordingly, Mr. Trump was not “inciting a riot” but was rather exercising a core First Amendment freedom when he said, ‘[G]et ’em out of here’ and ‘Don’t hurt ’em.'”

Those would be fantastic arguments if the plaintiffs were suing simply because they were thrown out of the rally. But the plaintiffs aren’t alleging some amorphous harm based on not being permitted to remain on premises. They were suing because they were physically injured when they were thrown out. If we’re to follow the logic put forth by Trump’s legal team, it wouldn’t matter how badly the protesters were beaten, battered, and bruised – as long as Trump was in the middle of exercising his own First Amendment rights when it happened. spoke today with Susan SeagerFirst Amendment expert and media law professor at University of Southern California, who also agreed that the Trump team got it wrong:

“President Trump makes an argument already rejected by the court.  The court ruled that the anti-Trump protesters did have a right to attend the rally since they obtained tickets and were allowed to enter by organizers.  The court said they were not trespassers. Once inside, the protesters did have a First Amendment right to peacefully protest. Organizers had the right to eject them, but not violently.”

Donald Trump has long been a big fan of defamation lawsuits; he threatens to sue and actually sues every defendant he can find whenever such action serves his purposes. By the logic advanced in this case, any one of Trump’s defamation defendants could defeat his claims by arguing that since they were speaking, the First Amendment offers them unlimited protection. Of course, Trump’s many threatened defamation defendant don’t’ need to advance that twisted First-Amendment argument because they already have the much clearer defense to defamation – that their statements were true.

Arguments advanced in legal pleadings, such as the ones made by Trump’s lawyers in Nwanguma v. Trump are important.  They are far more significant than off-the-cuff statements made during a speech or even a press conference.  These are the beliefs the administration carefully considered, has researched, and has presented to a court.  When a sitting president pleads to a judge that political protesters “have no right” to express dissenting political views in any venue, we should all be paying attention.  While Trump’s lawyers may argue that they’re championing the First Amendment, they are actually firing a strike right to its heart.


This is an opinion piece. The views expressed in this article are those of just the author.

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Elura is a columnist and trial analyst for Law & Crime. Elura is also a former civil prosecutor for NYC's Administration for Children's Services, the CEO of Lawyer Up, and the author of How To Talk To Your Lawyer and the Legalese-to-English series. Follow Elura on Twitter @elurananos