Trump's Lawyers Are Probably Right: Campaigns Can Kick Out Protestors

Trump lawyers say "no right" to protest at rallies -- they're mostly right.

(photo by Jabin Botsford/The Washington Post via Getty Images)

(photo by Jabin Botsford/The Washington Post via Getty Images)

Overnight last night, media outlets started slowly picking up a story about Donald Trump’s attorneys — Jones Day, obviously — filing a brief in a lawsuit against the President that claimed protestors have “no right” to protest at his campaign events because allowing hippies to hold signs criticizing the Donald would impair his First Amendment rights. As one might imagine, the stories written about this argument convey pearl-clutching disdain. One post danced around calling this downright totalitarian.

The problem is Trump’s lawyers are probably right. But Trump’s lawyers are still making a dumb argument.

To set the stage, this is the case of three protesters, Henry Brousseau, Kashiya Nwanguma, and Molly Shah, who filed suit after they were allegedly roughed up at a Trump rally they attended. When they held up their sign, Trump called from the stage, “Get ’em out of here,” and that’s when the plaintiffs allege they were assaulted by Trump’s brownshirt brigade. The plaintiffs suggest that this amounted to “inciting a riot” and, ugh, trumps Donald’s speech rights. Trump’s been trying to get the case dismissed, arguing that he only intended to have security remove the protestors, not to turn the crowd on them. But Judge David Hale recently questioned this argument, noting that Trump’s comment from the stage was “stated in the imperative; it was an order, an instruction, a command.”

Which brings us to the present motion. On the same day that a gaggle of Jones Day lawyers put in their pro hac motions, they put forth this argument (emphasis added):

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.

The Jones Day argument is that Trump had every right to expel protestors from his campaign rally and therefore when he said, “get ’em out of here,” he was talking to security, not authorizing vigilante beatings. While Jones Day faces an uphill battle to explain why those are necessarily mutually exclusive, the point is they’re right that campaigns can expel protestors. Despite the exasperation of liberal bloggers, the Supreme Court unanimously held in the Hurley case cited above that private groups holding public gatherings can choose speech to exclude. This isn’t some Trumpian twist, Hillary had Black Lives Matter protesters removed from her rallies all the time.

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But this is still a good lesson in why brief writing matters, especially if you’re representing the most visible man on the planet. What could ever possess someone whose client boasts an authoritarian streak and deep appreciation of a world leader with an ever-dwindling population of dissenters to write “they have no right to do so as part of the campaign rally of the political candidates they oppose”? State everything in the affirmative! Say, “Trump and his campaign have every right to expel people from the confines organized rallies” but don’t even go near protestors have “no right” to do anything.

And it’s not entirely true. Hurley doesn’t argue that the protestors don’t have a right to speak, just that the organizers can choose to exclude them from the event they’ve organized. In fact, critical to these cases is protecting the rights of protestors to speak from public areas outside the zone permitted for the private group’s event. For example, Sistrunk v. Strongsville, which dealt with the precise issue of protestors at a presidential campaign rally, made the point that the protestors have every right to schedule a counter-protest or to protest from outside the area permitted to the campaign. It’s just not fair to say that protestors have “no right” to speak, just that Trump can exclude them from a political rally.

Now, do these linguistic choices matter? That’s what actually interests me. One could argue that the brief works hard to express a fundamental disdain for the rights of those who disagree with Trump, when positing a simple “time, place, manner” quibble would have sufficed. Could Trump himself be shaping the contemptuous tone of briefs like this? There’s something to be said for a deconstructionist take on brief writing because what ends up in a brief can end up in an opinion. The law is one long game of telephone and even if they convey the same substantive point in the first instance, “no right to protest” can do a lot more mischief down the road that “a private event can exclude speech it does not intend to convey.”

Or maybe Jones Day just made a dumb drafting mistake and inadvertently invited a lot of unnecessary attention to their client. Anything’s possible.

(Full brief available on the next page.)

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Trump lawyer: ‘No right’ to protest at rallies [Politico]
Trump Argues There’s ‘No Right’ To Protest Inside His Campaign Rallies [TPM]
Trump lawyers claim citizens have ‘no right’ to protest at campaign rallies [Death and Taxes]


HeadshotJoe Patrice is an editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news.