Lately, it seems that a hockey game breaks out at every Donald Trump rally. Protesters in attendance get roughed up or violently thrown off the premises. So the question has come up whether Donald Trump could be held responsible for what his supporters do at his rallies? I think it is clear that his rhetoric is not enough to establish criminal liability for inciting riot or violence or as an accessory to an assault and in fact prosecutors in North Carolina yesterday took a pass at charging him for a violent incident there. I do however think under the right circumstances, Trump could be held liable in civil courts for future acts of violence.
Trump has been having protesters physically removed since the beginning of his campaign. In one instance, he famously told his supporters to throw out a protester but to take his coat and leave him coat-less outside in frigid temperatures. His exact quote was:
Alright, get him out. Take him out. Get him out of here. Ya, don’t give him his coat. Don’t give him his coat, keep his coat. Confiscate his coat. You know, it’s about ten degrees below zero outside. No, you can keep his coat. Tell him we’ll send it to him in a couple weeks.
Of course under the law, Trump could not keep the protester’s coat. But the main point is that this early incident (from January 2016) set the stage that Trump will not deal with protesters in typical fashion – that is civilly. Worse, it began the pattern of empowering Trump supporters to take the law into their own hands. Of course his angry rhetoric against protesters continued.
On Feb. 1 of this year, when Trump was told someone in the audience was preparing to throw tomatoes, he told the crowd “If you see somebody getting ready to throw a tomato, knock the crap out of them. Just knock the hell out of them. I promise you, I will pay for the legal fees. Neither tomatoes nor punches were thrown but promising to pay someone’s legal fees if they assault someone? You can use force in defense of self and others or to prevent the commission of a crime but it has to be proportional to the force being used. Knocking the crap or hell out of someone for throwing a tomato whether it hit Trump or not would not be proportional. And once the tomato is thrown, doing anything but restraining the person for the security or the police is vigilantism. Telling the crowd you will pay for their legal fees is certainly likely to embolden them to take steps they might not otherwise take.
Later in February, Trump spoke at a rally in Las Vegas and mentioned an incident with a protester:
Here’s a guy, throwing punches, nasty as hell, screaming at everything else, when we’re talking…,” I’d like to punch him in the face, I tell ya.You know what I hate? There’s a guy, totally disruptive, throwing punches, we’re not allowed to punch back anymore. I love the old days. You know what they used to do to guys like that when they were in a place like this? They’d be carried out on a stretcher, folks.
I love the hidden code of “the good old days” Because while its probably true that you could punch someone for no reason without consequences back then, but there were also likely separate bathrooms for folks of a different color as well. Trump harkened back to those “good old days” at yet another rally, this time blaming the police for being “politically correct” for not throwing a protester out fast enough. This makes him the only political candidate in the current election to think the police are showing too much restraint.:
You see, in the good old days, law enforcement acted a lot quicker than this. A lot quicker. In the good old days, they’d rip him out of that seat so fast — but today, everybody’s politically correct.
Trump supporters yearn I guess for those “good old days” when cops hands weren’t tied by political correctness and they dealt with peaceful protesters with nightsticks, fire hoses and German Shepherds or in the case of Kent State with bullets. But I stray. On March 9, a protester being escorted out of a Trump rally was sucker-punched in the face by an audience member which was itself a repeat of an incident from a few days earlier. At the Republican debate the following night, Trump was asked about incidents of violence at his rallies, and he blamed the protesters. At a press conference the next morning, even though the videos clearly show that no protester threw a punch and certainly not the first punch, Trump stated:
He was swinging, he was hitting people, and the audience hit back. That’s what we need more of.
And I think that last line is the one that exposes Trump to liability. As any first year law student will tell you foreseeability is the lynch pin to civil liability. It begins to be very foreseeable -that a Trump supporter will take all of Donald’s statements as permission or even a clear directive to physically assault a protester. Of course, if a t a rally he directly exhorts followers to assault someone he would be on the hook. The promise of payment of legal fees is just icing on the cake. While the First Amendment protects hateful speech and even can protect some speech that borders on threats, “fighting words” and true threats are not protected neither are exhortations to violence. I expect Trump will listen to his lawyers and tone down the calls for violence to avoid getting sued by the next protester that gets attacked by his loyalists. One article I read said that at a recent Trump rally,he’s begun to take another step playing an announcement that advised:
If a protester starts demonstrating in the area around you, please do not touch or harm the protester
The article reported that the announcement was met with laughter by the crowd.