Donald Trump has a long history of capitalizing on hatred be it directed toward women, racial and religious minorities or people who recognize demagoguery when they see it.
Whether he was motivated by ratings for his reality show or proving he is sufficiently hateful to qualify as a conservative Republican, Trump knew his objective and what hate filled messages to spew to meet that objective.
During his campaign, Trump proved more adept at flip-flopping on the issues than 2012 candidate Mitt Romney. One constant feature of the Trump campaign is the hatred that lures racists who are mostly Republican, mostly white, mostly male and mostly “poorly educated”. Another constant feature is his propensity to incite violence – which can be a criminal act if it fits the criteria set out in Brandenburg v. Ohio. The speech must have the intent and likelihood of causing imminent violence.
As repugnant as Trump’s hate filled rhetoric is, hate speech, is protected under the first amendment until “it is advocacy directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” That’s the standard set in Brandenberg v. Ohio.
As Jason Easley pointed out, Rachel Maddow chronicled several occasions that Trump encouraged his supports to assault protesters and assured them he would pay the legal fees.
In plain English, the constitution protects Trump when he spews hatred. It doesn’t necessarily protect him when he encourages his supporters to attack protesters. It comes down to intent and if his comments can result in imminent harm. Trump’s assurances that he would pay the legal fees, at minimum, prove he knew he was instructing his followers to break the law or at least that his rhetoric was likely to produce such actions. The problem is the law distinguishes between knowing something will happen and intending to make that thing happen.
Given that the incitements incrementally became a standard feature at Trump’s political events, arguably his very presence incites violence on the part of his supporters.
It comes as no surprise that Trump (and other Republican candidates) tried to deflect responsibility for the violence that occurred in Chicago. On Fox, Trump tried to float the idea that anti-Trump protesters “shut down” Trump’s first amendment rights.
His son, Donald Jr. tried to convey the same message in a tweet.
Liberals love the first amendment until you say something they don’t agree with.
— Donald Trump Jr. (@DonaldJTrumpJr) March 12, 2016
This claim reaffirms Trump’s ignorance on so many levels, beginning with the fact that the first amendment limits government actions resulting in restrictions on people’s speech. Opponents of Trump’s message are not “the government” by any interpretation.
Carrying a sign protesting Trump’s message is speech, not violence. He may not like it, and it may not play well to the media that regularly streams his events as “live news.” The fact remains protesting a political candidate’s message is one of the many forms of speech protected under the first amendment.
There is a point, that protesting becomes “disruptive” such as by shouting down the speaker, even if he is saying vile things. And with Trump, that’s a given. Trump is within his rights to ask security to remove the person for being disruptive. He is not within his rights to reminisce about the good old days when protesters were carried out on stretchers, given the effect it would have on his audience. He is not within his rights to encourage violence with a nod, a wink and a promise to pick up the legal fees.
Since violence has occurred on a regular basis at Trump rallies, the smart man that Trump says he is should have a reasonable expectation that his supporters don’t need much encouragement to assault protesters.