James Hoefler is a professor of political science at Dickinson College specializing in American politics and public policy.
The 2016 presidential election has been notable for the rhetorical vitriol pervading the campaign, and unfortunately Donald Trump’s suggestion Tuesday that “Second Amendment people” might be able to offer some sort of corrective to a Hillary Clinton presidency is merely a continuation of this well-established pattern.
At a July rally in Raleigh, N.C., Trump supporters can be heard chanting “Hang that b----!” Michael Folk, a Republican legislator from West Virginia, added his voice to the chorus several days later, tweeting that Clinton should be “hung on the Mall in Washington, DC.”
Al Baldasaro, a Republican legislator from New Hampshire and a retired Marine who serves as a Trump adviser, joined the fray, stating in a radio interview that, “Hillary Clinton should be put in the firing line and shot for treason.” Licking County, Ohio, Commissioner Duane Flowers chimed in at a public meeting shortly thereafter, saying that Clinton should be “hanging from a tree.”
Do any of these statements cross the line of protected speech under the First Amendment? Probably not.
The relevant federal statute here — 18 USC Section 879(a)(3) — makes it a felony to threaten a presidential candidate with death or bodily harm. But the U.S. Court of Appeals for the 9th Circuit has ruled that speakers should be accorded fairly wide latitude to express themselves in ways that do not pose a real and imminent threat.
For example, in the weeks prior to the 2008 presidential election, California resident Walter Bagdasarian posted the following on a public message board: “[Barack] Obama . . . will have a 50 cal in the head soon.” Bagdasarian followed this post with another, which began: “Shoot the n--.” The Secret Service investigated and found weapons in Bagdasarian’s home, including a .50 caliber rifle.
Bagdasarian was convicted, but his conviction was overturned by the 9th Circuit Court, which ruled that Section 879 could only be invoked if the speaker’s words went beyond expression of an opinion to constitute “a serious expression of intent to inflict bodily harm.” The court reasoned that while Bagdasarian’s posts might be loathsome and menacing they did not reach the level of a “true threat.”
While it is within the purview of the Secret Service to investigate those who have made menacing comments regarding Clinton, those comments probably fall within the realm of protected speech, if only because Bagdasarian’s patently more egregious speech was found to fall within the limits of protected speech.
Even before Tuesday’s comments about the Second Amendment, however, Trump’s own speech raised serious constitutional questions. After a protester threw a tomato at a February campaign stop in Cedar Rapids, Iowa, Trump encouraged those in the crowd to take action.
“If you see somebody getting ready to throw a tomato, knock the crap out of them, would you? Seriously, okay? Just knock the hell — I promise you, I will pay for the legal fees. I promise.” Shortly thereafter, John McGraw was charged with assault and disorderly conduct after reportedly sucker-punching a non-violent Trump protester at a North Carolina rally.
Did Trump cross the First Amendment line with his comments? We look for guidance to the Supreme Court’s most recent case to test the limits of this sort of speech: Brandenburg v. Ohio. In that 1969 decision, the court set forth a three-part test to determine the contours of First Amendment sanctuary: Was criminal action (1) intended, (2) imminent and (3) likely?
Trump’s intention seems genuine and unambiguous, especially in the context of his comments after a protester was ejected at a February rally in Las Vegas, when Trump said: “I’d like to punch him in the face.” Perhaps these were rhetorical flourishes, but it would be hard for anyone who watched videos of these events to come to the conclusion that Trump’s intentions were anything less than sincere.
Trump’s language also seems to qualify with regard to imminence. That Trump supporters have acted along these lines at subsequent rallies would suggest that criminal acts advocated by Trump qualify as imminent in the literal sense of that term.
Trump’s speech also seems to meet the harder-to-establish likelihood test. At the very least, Trump’s offer to pay the criminal defense costs of anyone who followed his advice would seem to increase the likelihood that someone would act on that advice.
We all celebrate the First Amendment and its broad protections of speech, as egregious and unpresidential as that language might sometimes seem. But all political liberties come with limits, and a case could be made that Trump’s brutal entreaties have exceeded that limit. Should he continue to exhort violence at his rallies, it may be his own legal defense needs, rather than those of his followers, that he will need to worry about.