No, Trump Didn't Argue That Protesters Have No Right To Protest or Violated His Rights

Popehat 2017-06-22

Donald Trump is no friend of free speech. He promotes ignorance about the First Amendment and has a history of bogus censorious lawsuits.

It is not necessary to make things up to paint him as censorious and uninformed about free speech values.

Yet here we are again.

For the third time I return to Nwanguma v. Trump, a case pending in federal court in Kentucky. The plaintiffs, protesters at a March 1, 2016 rally in Louisville, claim that Trump incited his fans to assault them and eject them violently from the rally, and sued Trump and some of the allegedly violent fans. Previously I lawsplained that no, a federal judge didn't rule that Trump had incited violence, and no, it's very misleading to say that one of the allegedly violent rally-goers sued Trump for inciting him to violence.

What fresh hell now? We get this:

And this:

And, God help us, this:

So, what's really going on? Did Trump actually argue in court that people protesting him violate his First Amendment rights and that they have no right to protest him?

No.

This started when Trump lost a motion to dismiss the case. As I explained before, that ruling doesn't signify a finding that the plaintiffs will prove their case – it means that the plaintiffs successfully asserted facts in their complaint which, if proven true, could support a claim against Trump.

Last week Trump's lawyers filed a fairly unusual and creative motion. Part of the motion asked the judge to reconsider his denial of the motion to dismiss. Motions to reconsider are generally highly disfavored in federal court — it's very rare to win one unless you can show new law or new facts that you couldn't have presented before, because judges don't want to re-litigate and re-argue every point endlessly. But Trump's lawyers also request something much rarer — they want the court to permit an immediate appeal, through a process called certification.

Here's the way it works. Generally speaking, only final judicial decisions that end a case can be appealed. Denying a motion to dismiss doesn't end the case, so it can't be appealed. But a federal judge has the power to certify issues for an immediate appeal — called an interlocutory appeal — if the judge finds that there's a controlling legal question involved (that is, a legal question that may dispose of the case), there's grounds for disagreement about the issue, and resolving it may help resolve the case. Trump's motion — which you can read here — asks the federal judge to certify for interlocutory appeal (1) whether the First Amendment protects Trump's speech as a matter of law based on the allegations in the complaint, and (2) whether the First Amendment allows a claim for negligently inciting violence through speech.

It's in the course of that motion that Trump's lawyers make arguments now being misconstrued and misleadingly presented.

Trump's First Amendment argument depends, in part, on his (correct) assertion that freedom of association lets a politician control who is allowed to attend a private political rally:

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.” Id. at 573.

I added the highlight to that quote because it undercuts the spin being given to it. Trump's lawyers are saying "Trump can decide who is allowed to attend his private rally, and protesters have a right to protest him but not at his private rally."

That is the context for the following paragraph:

Here, the Plaintiffs obviously interfered with the Trump campaign’s First Amendment right to “choose the contents of [its] own message,” id., 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,” Compl. ¶ 44. Once that disruption occurred, 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.” Id. ¶¶ 32, 34. By holding to the contrary, this Court’s decision effectively transforms Mr. Trump’s protected political speech into an unlawful tortious act. At the very least, reasonable minds can differ as to whether that holding is correct as a matter of First Amendment law.

Note that Trump's lawyers said that protesters were interfering with his exercise of First Amendment rights, not violating his First Amendment rights.

So Trump's completely unremarkable arguments are these:

* Trump has a First Amendment right to speak; * Trump has a First Amendment right to choose who is allowed at his private rallies; * Protesters have a First Amendment right to speak, but not to speak at Trump's private rallies; * It would violate Trump's First Amendment rights to force him to accept protesters at private rallies.

All of that is clearly correct. But it's being reported sloppily, misleadingly, and/or incompetently as "Trump says protesters violate his First Amendment rights" and "Trump says protesters have no right to protest" by people who either don't care about accuracy or are incapable of achieving it on this subject. The motion explicitly says the opposite of that.

Remember: read legal reporting with great skepticism.