One protester was punched as he was led out of a Donald Trump rally in North Carolina. Another rushed the stage at an event in Ohio. In Chicago - a city rocked by political riots in the 1960’s - escalating clashes between Trump supporters and demonstrators forced the Republican front runner to cancel an event Friday night.
Protest has been a part of politics since the nation’s birth. But at Trump’s packed events they have become a prominent - and increasingly violent- staple. Both anti-Trump demonstrators and Trump supporters have said loudly that their First Amendment rights are being violated at these rallies. In the midst of the Chicago fracas, Trump went from one television network to another saying his supporters’ rights were being trampled by demonstrators. Closer to home, about 30 African American Valdosta State University students are contemplating a lawsuit alleging their rights were abridged when they were escorted out of a Trump rally at their school last month.
And since campaign rallies for other presidential candidates, such as Hillary Clinton, have been disrupted by protesters, accusations of free speech violations have rung out as loudly as cheers from the crowds. But were they all violations?
It’s not so cut-and-dried. As several first amendment attorneys pointed out, it can be murky. Let’s start with the clearest point:
“The First Amendment is a protection or restriction on what government can do,” said Peter Canfield, an Atlanta attorney who has worked on libel cases including one involving former New York Mayor Michael Bloomberg and a Georgia gun dealer.
So if a person is removed by government agents, law enforcement, then it’s a First Amendment violation, right? Not necessarily, said attorneys. It depends upon whose orders the police are acting on, whether the rallies are public or private events and who tells the police to remove protesters.
If it’s a private event at a private venue, a person can be ejected without violation of the First Amendment, as was the case with a young Black Lives Matter protester who interrupted a $500 a ticket fundraiser for Hillary Clinton in Charleston, S.C.. The woman unfurled a sign calling out Clinton for her 1990s-era stance on criminal justice, particularly concerning communities of color. The young woman, identified in media reports as Ashley Williams, was escorted out by Clinton’s security detail.
“These are private forums and accordingly the host has the right to admit or refuse anybody as long as it is not done on legally inadmissible grounds,” said Augusta attorney David Hudson.
“If it’s on private property and then you do something, then it’s probably going to be private security that removes you and it’s probably not a First Amendment issue because by entering you’ve kind of entered into a contract,” said Canfield.
But what if the event is in a public venue and protesters are kicked out? Surely that’s violation of free speech, correct? Again, there are variables, attorneys said. If a campaign rents out a public venue, the campaign essentially becomes the lessee of the venue and can dictate conduct, attorneys said. Even if the campaign opens the event to the public and issues free tickets.
“Even on public property, there can be layers to this as a First Amendment issue,” said Gerry Weber, an Atlanta attorney and senior staff counsel for the Southern Center for Human Rights. “If the ejection is done by government officials or police officers acting on the request of [campaign] organizers and they’re doing it because of [the protesters] views, that presents a First Amendment problem. If it’s because of their conduct, then they can be ejected.”
But Weber cautioned there can be other mitigating issues, such as if other attendees are impacted by an attendee’s actions, like holding up a large sign that blocks the view of others.
“It becomes pretty murky and it really depends upon the context,” Weber said.
In the case of the Valdosta State students, the students told media outlets that they were not rowdy but standing quietly in the bleachers of the school’s athletic complex. Valdosta Police Chief Brian Childress, however, contested that account in a statement saying some of the students had been cursing and being disruptive and were escorted out.
“This and only this reason was why they were asked to leave the complex,” Childress said. “But to suggest that this incident was racially motivated is unfair and simply not factual.”
The students were wearing black shirts, which was a form of speech, said Hudson.
“What you’re wearing can be a form of speech, but if you’re there otherwise not causing a disturbance, I would say you ought to be left alone,” Hudson said. “If your sign isn’t blocking the view of other people, if you aren’t causing a disturbance either by noise or obstructing the view, then you have a First Amendment right to be there.”
It’s important, however, to keep in mind the very nature of political rallies and the purpose of protest, say political scientists.
“Dissent is part of the American tradition,” said Michael Leo Owens, an associate political science professor at Emory University. “When a person goes to a rally with a sign to protest, they don’t expect the candidate to actually stand there and debate them right there on the floor. The idea is to disrupt, displease all in the name of political action and expression. The ejection is what brings the attention, and the ejection equals the triumph. They want to confront the candidate that they believe has bad policies.”
Then there is the issue of staying on message, said Andra Gillespie, also an associate political science professor at Emory University. That goes for the rally audience as well as the candidate, said Gillespie.
“These are staged events and because they are staged, candidates want to control the message,” Gillespie said. “These are carefully scripted and if they think there’s some kind of grassroots expression that’s going to run counter to that, they shut it down.”
Gillespie, who has attended rallies this campaign season for most of the presidential candidates, described two instances. One at a Ted Cruz rally in Kennesaw where audience members, quietly and directly asked a handful of white protesters to put away a small Black Lives Matter sign they had brought to the rally. The protesters did and the rally was not disrupted, Gillespie said. That’s a case that did not constitute a First Amendment violation because at no point was law enforcement involved.
The incident involving the two Georgia State students at a Clinton rally, however, seems to edge closer to a free speech violation. In an interview the Atlanta Journal Constitution Meagan Mwanda and Ashona Husbands said they were escorted away from a Clinton rally at Atlanta’s City Hall after they wrote on the back of official Clinton campaign signs handed to them at the rally. The students wrote the names of African American’s whose deaths have been rallying points for the Black Lives Matter movement. Plainclothes Atlanta police officers ejected Mwanda and Husbands from the crowd.
“You don’t target people because you’re afraid of their message,” said Atlanta attorney Cynthia Counts. “If you want to control the message, [the campaigns] need to make it clear that you only want your signs. But you can’t use police in an arbitrary way to do it. Once you bring the police in there better have been a crime, otherwise you’re opening yourself up to liability.”
The student protesters from Valdosta and Atlanta are weighing lawsuits over their treatment.
“These students are first time voters and we’re creating a censorship around speech and it’s concerning,” said Maya Dillard-Smith, executive director of the ACLU of Georgia, which is representing the students. “We have to be resolute in our defense and understanding of the First Amendment.”
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