“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
— First Amendment
“Knock the crap out of them, would you? Seriously, OK? Just knock the hell.”
— Donald Trump
I’m thinking of throwing a big party at my house. Everybody will be invited. Well, almost everybody. Everybody except you. We’ll print invitations, we’ll have signs, we might even sing songs. But before the party we’re going to make it very clear who’s invited, and that list isn’t going to include you.
Now, my house is private property. It’s not a park or a courthouse, it’s not a monument or state college, it’s not an elementary school or a town square. So if I make it clear who is permitted at this party, and if it’s clear that you’re not permitted, but you come anyway, what do you think will happen? Can I call the police and have you removed for trespassing?
Over the past few weeks, some of presidential candidate Donald Trump’s rallies have made headline news. Cameras have caught protesters being peacefully removed, not-so-peacefully removed and, in some cases, assaulted. One rally in Chicago was canceled out of fears of further incidents.
Trump’s opponents cry foul, claiming that the protesters have a constitutional right to express their political views. In some cases, they point out, the protesters were doing nothing more than standing quietly with a sign or T-shirt showing their opposition, and yet were removed from the events. They claim that Trump’s repeated rhetoric about the protesters has egged on his supporters to physically assault them.
Trump’s supporters argue that if anyone’s right to free speech has been violated, it has been Trump himself, particularly in the case of the canceled Chicago rally. Trump has a right to espouse his political views, they argue, and threats of violence that lead to the cancellation of his rallies prevent him from exercising his right to speak.
From its earliest days, the United States has a proud history of protecting the right to gather together to protest everything from tea acts to the names of sports teams. The right is enshrined in the First Amendment and in 1937 the U.S. Supreme Court, in DeJonge v. Oregon, stated, “The right of peaceable assembly is a right cognate to those of free speech and free press and is equally fundamental.” The High Court has also indicated that the right to free speech doesn’t just protect words coming out of your mouth, but also “symbolic speech” and “speech-plus conduct.” Thus, the Constitution protects your right to burn the American flag (Texas v. Johnson, 1989), protest at a state capitol building (Edwards v. Louisiana, 1963), or wear a black armband to school to protest a war (Tinker v. Des Moines Ind. Com. School District, 1969).
All of these cases, however, deal with actions by the government to infringe on speech, or with speech or speech-plus-conduct that occurs in a public place, and the protections of the First Amendment extend to prohibiting government action. Unless and until Donald Trump is elected president, he’s a private citizen. And just like my imaginary party, if he hosts a party on private property, he gets to decide who is invited. If he makes it clear before the party that only his friends are invited, then if people who aren’t his friends show up, those people are trespassing on private property and can be removed.
In a recent piece for The Huffington Post, University of Chicago law professor Geoffrey Stone summed it up well when he said: “As a general rule, individuals do not have a First Amendment right to violate laws having nothing to do with speech — even if they violate the law in order to engage in expressive conduct. For example, there is no First Amendment right to speed in order to get to a rally on time. There is no First Amendment right to steal a megaphone in order to speak more effectively.”
Thus, the analysis is not only whether the assembly and speech are protected, but also whether they are protected in the time and place where they occur. And the answers to the questions about whose rights are violated in these situations depend on where the rally is held and what instructions were given beforehand about who could attend.
David Hejmanowski is judge of the Probate/Juvenile Division of the Delaware County Common Pleas Court.