“Nonviolence is the answer to the crucial political and moral questions of our time.”
— Martin Luther King Jr.
“No person shall knowingly engage in conduct designed to urge or incite another to commit any offense of violence, when the conduct takes place under circumstances that create a clear and present danger that any offense of violence will be committed.”
— Ohio Revised Code 2917.01
Last week, this column reviewed the limited legal question of whether the First Amendment’s guarantees of free speech and free assembly protected a protester who was silently expressing opposition at a political rally. The answer was a resounding “maybe” — dependent upon whether the rally was on public or private property and whether any statement had been given beforehand about who could be present. On Monday of this week, the Columbus Dispatch printed a substantially similar editorial.
As every one of these columns has for the past 12 years, last week’s column began with two quotes. After the column ran last Friday, a number of people contacted me and expressed, to my great horror, that they thought the column expressed support for Donald Trump’s call that protesters be assaulted at his rallies.
The column itself had not said anything of the sort, but utilized a quote from Trump suggesting that his supporters “knock the crap out of” protesters at his rallies. The use of the comment was not meant to show support for Trump individually, and most certainly not to support any suggestion of violence. I had included the quote with the intention of addressing the issue of whether Trump could be prosecuted for those comments in the body of the article, but then ran out of room to do so and never changed the quote. (As a side note, the judicial ethics rules prohibit judges from publicly endorsing or supporting candidates for political office, which is why these columns are careful never to support or oppose any candidate.)
As this is a new week and a new word limit, we now have space to explore the related issue of whether a candidate who suggests that his supporters assault a protester could be subject to state-law prosecution. Indeed, one North Carolina sheriff noted that he was considering charges against Trump for inciting a riot, though he ultimately declined to do so.
Eugene Volokh, professor of law at UCLA (who self-identifies as a supporter of Ted Cruz), recently opined on the subject for the Washington Post. Volokh correctly noted that there are myriad legal intricacies such that it is impossible to judge any particular statement made by any particular candidate. But, he noted, it is entirely possible that a prosecution could occur.
To see how, let’s look at Ohio’s “Inciting to Violence” statute, found in the Ohio Revised Code at section 2917.01. The Ohio statute makes it a crime to “knowingly engage in conduct designed to urge or incite another to commit any offense of violence” under one of two circumstances. First, if the incitement creates a “clear and present danger that any offense will be committed”; or secondly, if “the conduct proximately results in the commission of any offense of violence.”
Ohio’s statute is actually one of the broader state laws in this area, and one can see how it would apply to this situation. If a candidate made a general statement that any heckler should be assaulted, but there was no heckling going on at the moment, that statement is unlikely to be deemed to have created a “clear and present danger” or to have been a “proximate” cause of harm. But if a protester is in the act of protesting and the candidate says, “Hey, someone punch that guy,” there is little doubt that the Ohio statute would criminalize that statement. Volokh notes that the situation changes if a protester is resisting arrest, or is himself assaulting someone, because issues of self-defense or defense of others then enter the equation as well.
The calls for violence illustrate a sad but continual coarsening of American politics. We seem to have forgotten the words of two men who were born British subjects but came to play major roles in the development of the United States. In 1774, John Wesley, co-founder of the Methodist Church, wrote, “I met those of our society who had votes in the ensuing election, and advised them to vote, without fee or reward, for the person they judged most worthy, to speak no evil of the person they voted against, and to take care their spirits were not sharpened against those that voted on the other side.”
Twenty-six years later, our third president, Thomas Jefferson wrote, “I never considered a difference of opinion in politics, in religion, in philosophy, as cause for withdrawing from a friend.”
We would do well in this and all election seasons to remember the words of Wesley and Jefferson.
David Hejmanowski is judge of the Probate/Juvenile Division of the Delaware County Common Pleas Court.