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No, Freedom of Speech Wasn't Violated During Trump's Rally

by Jay Stooksberry, published

The recent cancellation of a Donald Trump rally in Chicago has re-energized a popular misconception about free speech in our country—namely, we all get to speak without receiving any flak for what we say.

Both sides of the equation are quick to point fingers of blame following the mayhem in Chicago. Trump supporters claim that protesters infringed upon their candidate’s right to speak freely. Meanwhile, Trump opponents flip the script on who is truly violating free speech by highlighting the fact that he regularly uses his security detail to forcibly remove protesters from his events.

When it comes to constitutional law, both sides miss the mark. And, for some reason, this misunderstanding of the First Amendment resurfaces frequently in our national dialogue, especially during election years.

The Constitution protects individual citizens from being jailed or facing penalty for voicing their opinion, especially if it is one of dissent. Limitations to free speech only curtail criminal or negligent intentions, such as libel and slander. Long story short, freedom of speech is the freedom from government censorship (notwithstanding judicial nuances to my simplistic interpretation).

Freedom of speech is not, contrary to popular perception, freedom from criticism. Returning to the Chicago Trump rally incident, it is critical to remember that neither side has an exclusive claim to speak freely over the other, nor can their opinions somehow bypass any attempt at dissent.

So what about Trump throwing out protesters from his rallies? Doesn’t that violate free speech?

Not really. Trump rallies are private events, like a concert or a fundraiser. They take place at convention centers and university auditoriums, and attendees purchase tickets in advance or pay an entrance fee to gain access. Anybody behaving in a manner deemed unruly by event planners and masters of ceremony are subject to removal from the event.

Even if the event took place at a public university, those who rented the space possess the right to discriminate, as long as they are not violating the rights of specific protected classes of people (a la Civil Rights Act or Americans with Disabilities Act).

The right to exclude is paramount to the right to freely assemble. Can the NRA deny membership to notable gun control advocates? Certainly. Can the Anti-Defamation League deny membership to publicly acknowledged racists? You bet. Freedom of association also parenthetically infers the freedom not to associate.

This freedom to not associate is backed by the Supreme Court. Boys Scouts of America v. Dale solidified the right of an organization to exclude membership to an individual when “the presence of that person affects in a significant way the group’s ability to advocate public or private viewpoints.”

The only codified right that was violated that night in Chicago was the right not to be physically and violently assaulted. Based on the chaotic nature of the evening’s events, it is difficult to assign wholesale responsibility since evidence indicates that both sides were complicit in some form of violence.

“I didn’t want to see people get hurt,” Trump told the press after postponing the event. (Take note Trump supporters: Your fearless leader cancelled the event. Making the case that First Amendment rights were violated becomes flimsy when the plaintiff censors himself.)

Now, the irony of a guy who openly stokes the flames of violence—specifically directed toward those who protest his events by encouraging audience members to “knock the crap out” of them—isn’t lost on this author. Trump sanctions violence with his rhetoric, and the cult of personality that surrounds him enthusiastically responds with an array of sucker punches.

This, of course, is unacceptable.

And, as mentioned before, this type of provocative speech made by Trump walks a thin legal line. In fact, if Trump continues to advocate for violence against his opponents, he may find himself outside of the protection of free speech.

Brandenburg v. Ohio established a legal precedent that protected speech that was purposefully inflammatory, but also set limitations on speech—also known as the “Brandenburg Test”—that incites imminent lawless actions. Trump should pay closer attention to his provocative statements at his rallies (such as promising to pay for the legal fees of his supporters who accost protesters), or else he may find himself on the wrong side of the “Brandenburg Test.”

In the end, all sides involved in this madness should abstain from and condemn violence of any kind. Our election process is a battle of ideas, not fisticuffs. Freedom of expression works best in an environment that is not only unfettered and free from government intervention, but also where practitioners are able to speak freely without fear of violent reprisal. Free speech should only beget more free speech.

However, before you claim to be a victim of infringement of your First Amendment rights, it is important to understand what exactly those rights entail. Often times, a vociferous opposition to your opinions is an indication that you need to rethink your position. American voters are not constitutionally mandated to validate the ideas you’re peddling.

Freedom of speech is designed to break up any potential monopolies in the marketplace of ideas. If you find that your market share is dwindling due to an increase of customer dissatisfaction or public boycotts, then it may be time to rebrand your product. If not, you shouldn’t be shocked when your ideas lose all value and your efforts are bankrupt.

Photo Source: Reuters

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