Do Trump Rallies Trample on Protesters’ Free Speech?

AP Photo/Charles Rex Arbogast

Chicago police officers on foot and mounted, watch over protesters after a rally for Republican presidential candidate Donald Trump was cancelled due to security concerns, on the campus of the University of Illinois-Chicago, Friday, March 11, 2016, in Chicago. 

Until now, violent outbreaks at Donald Trump rallies have raised questions mostly about the obstreperous billionaire’s role in inciting aggression; whether Bernie Sanders encouraged protesters, as Trump alleges; and whether anti-Trump agitators or pro-Trump supporters have been to blame.

But the political skirmishes that follow Trump wherever he goes also spotlight another group of players whose actions may put the First Amendment on a collision course with public safety: the police officers, private security details and Secret Service officials struggling to keep the peace. The confused and overlapping roles of Trump’s various law enforcement escorts have made it tough to assess exactly what has happened at various rallies. And it’s put some police officers at legal risk, particularly if it turns out that the Trump campaign has been asking them to eject people without cause.

Take what happened February 29 at Valdosta State University in Georgia. Three weeks after some 30 students were tossed from a Trump rally on their own campus, the details of what happened remain in doubt. The students say they weren’t being disruptive before they were asked to leave. The Valdosta police chief says Trump campaign staff told him the students were being loud and using profanity. The campaign denies that. The Valdosta chief says it was Trump’s security detail who escorted the students out. Trump’s people claim they didn’t even know about the incident and that the cops removed them.

What is clear is that Trump’s schoolyard taunts and implicit calls to violence—he went so far as to say he might pay the legal fees of a supporter who sucker punched a heckler at one of his rallies—are making police officers’ jobs harder, and may put them in legal jeopardy. Officers under pressure to eject peaceful hecklers at the behest of the campaign might find themselves slapped with a First Amendment lawsuit, says one expert.

It’s often not clear from media reports who’s making the decisions about whether to boot protesters from Trump events. That’s in part because officials providing security at campaign rallies find themselves dragged into a maze of overlapping responsibilities. The Secret Service is in charge of protecting the candidate. Local police help in that role but also are responsible for overall crowd safety and security. The campaign’s own private security detail does both, and sometimes that team includes local cops whom the campaign has hired.

And when a campaign does hire cops, the person to whom those officers report varies depending on how they were hired, says Seth Stoughton, a law professor at the University of South Carolina who also worked crowd control as a former police officer. If the campaign paid the local police department to provide extra security, those officers report to their own commanders. But if officers were hired privately and are off duty, they report to the campaign staff—though they are still bound by their own department’s rules. 

Those scattered responsibilities can leave disparate members of a security team at odds over what’s allowed in the way of protest. There’s no debate that protesters who interrupt a Trump speech may be removed. But the Valdosta episode raised a question—is it legal for someone be thrown out merely for showing up dressed all in black, as many of the ejected Valdosta students had?

Not if it’s considered a public event, experts say. “If it’s a public event, it’s unconstitutional to remove you for viewpoint-related reasons, says Leslie Kendrick, a First Amendment scholar at University of Virginia’s law school, adding: “That’s a textbook First Amendment violation.”

The trouble is, as Kendrick notes, there is no clear definition as yet of what makes a campaign rally private or public. If the event happens on public property—like a fair grounds or at a state university—that argues for the event to be considered public, she says. And even if the rally is held on clearly private property, if police are doing the removing, the ejected individual could still plausibly claim a First Amendment violation, Kendrick says.

“Do we have a situation where given the circumstances and the optics, this looks like the state itself is enforcing the viewpoint discrimination?” she asks. “If [Trump] sends the police out to remove people for their viewpoint, that might look like it's actually discriminatory action on the part of the state.”

But not all First Amendment experts agree. Eugene Volokh, a law professor at the University of California at Los Angeles, says a political rally should be considered private if it’s held on private property, or even on government property that a campaign has leased out—such as a public college’s convention center. In that situation, says Volokh, “the organizers can say: ‘Look, we let people in, and we want some people to leave.’” In that scenario he says, the police would simply be enforcing the will of an individual who’s exercising his or her right to control private property. By contrast, he says, if a political rally happened in a clearly public space like a park, a court would view it differently.

The legal confusion that surrounds campaign rallies might clear up if someone ejected from a Trump rally without cause decides to sue. The ensuing court ruling would undoubtedly be closely watched.

Such a lawsuit could be on the way. The 30 students ejected from Valdosta have a plausible case that their First Amendment rights were violated, says Kendrick. “I think [a Valdosta student] has a good claim that if you’re a student at a public university that’s holding a rally on the university campus, that you have a right to be there and that by virtue of being on public property and university property, that’s an event that has become a public event, at least as far as students are concerned,” she says.

All of that also puts the cops working at Trump events at possible legal risk if organizers give them an unlawful order to remove someone who has a right to be there. Officers who do so open themselves to liability, and also potentially leave the agencies they work for liable for failing to supervise or properly train them in First Amendment rights, says Stoughton.

Legal issues aside, Trump’s professional wrestling-style antics puts the officers working his events in a difficult and vulnerable spot. Any speaker at a rally has the ability to manage whether conflicts at a rally spin out of control, says former police chief Darrel Stephens, executive director of the Major Cities Chiefs Association.

“You can be antagonistic and create a more difficult environment, or you can soften your rhetoric and help make sure that the crowd maintains their control,” Stephens explains. He adds: “We’ve seen things happen in this [election cycle] that I’ve never seen, and I’ve been involved in this for 50 years.”  

The protesters at Trump’s rallies have been mobilized through social media campaigns with Twitter hashtags like #ShutItDown or by local grassroots groups like Black Lives Matter Chicago and the Puente Human Rights Movement in Phoenix. “I’ve had students from a range of different backgrounds protesting at Trump rallies,” says Jessica Welburn, a Twitter activist and professor of sociology and African American studies at the University of Iowa. “He’s provoked so many different groups.”

At a March rally in Chicago, for example, where violent altercations broke out after Trump abruptly canceled his appearance amid rising tensions, the crowd included Muslims, Latinos, and African Americans. They all had “different motivations for being there and were mobilized in different ways and by different forces,” Welburn notes.

Pamela Oliver, a University of Wisconsin sociologist who studies social movements, agrees that if Trump becomes the GOP’s nominee this fall, it will further galvanize minority voters and civil-rights activists. But she warns that the racially tinged conflicts at Trump rallies have a dark side that could backfire on protesters. When majorities whip up racial animus, she says, “it often ends very badly for minorities.” If the skirmishes, violence, and clashes with law enforcement continue, Trump’s campaign could also end badly for some legally vulnerable police officers.

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