Talk about strange bedfellows.
In a rare show of unity with President Donald Trump, the American Civil Liberties Union agrees with the chief executive’s argument that he had a First Amendment right to yell “Get ’em out of here!” at his campaign rallies last year even if protesters ended up “manhandled by the crowd.”
“There is no question that Trump’s decision to use his bully pulpit to actually bully protesters and to rile up his crowds against them is morally despicable,” Lee Rowland, senior staff attorney at the ACLU’s Speech, Privacy and Technology Project, wrote in her April 20 blog post about the lawsuit.
But Trump should be dismissed from a Kentucky lawsuit brought against the president by three protesters who claim Trump’s words intentionally incited violence against them, Rowland wrote.
“It’s important to remember that political candidates — including Donald Trump — have constitutional rights, too,” Rowland wrote.
“It is never a good time to alter the law so that more speech can be punished, the ACLU lawyer said in her post. “Political speech should qualify as incitement only if it is unequivocally and inherently a request for violent and unlawful action.
“‘Get ’em out’ just doesn’t meet that bar,” she said.
The ACLU is publicly supporting Trump in the Kentucky lawsuit at the same time the civil rights group has filed several lawsuits against Trump over his now-delayed ban on travel from Muslim-majority countries on the grounds that it violates the First Amendment prohibition against religious discrimination.
Rowland wrote in her post that there is insufficient evidence that Trump intentionally incited violence and the protesters’ claim of negligent incitement of violence is barred by the First Amendment.
She cited several Supreme Court decisions that found First Amendment protections for emotionally charged, controversial political speeches so long as they are not “likely to cause imminent and serious lawlessness.”
Incitement allegations are dangerous because they can be used to chill legitimate speech, she warned. “Incitement charges have been used to jail anti-war protestors, labor picketers, Communists, and civil rights activists,” Rowland said in her post.
Trump’s lawyers have argued in the Kentucky case that his campaign speech was not intended to incite violence, the protesters did not have a First Amendment right to protest at the rally, and his speech is absolutely protected by the First Amendment as a political speech.
A judge rejected Trump’s arguments and refused to dismiss the case, at least at the early stage. The three plaintiffs, Kashiya Nwanguma, Molly Shah and Henry Brousseau, allege that Trump knew about the history of violence against protesters at his rallies and his “Get ’em out of here” instruction was intended to incite further violence by his supporters against protesters.
The protesters point to Trump’s statements at earlier rallies that “maybe [a protester] should have been roughed up,” his urging to supporters to “knock the crap” out of anyone “ready to throw a tomato,” and he would “like to punch [a protester] in the face,” as well as Trump’s pledge to pay for his supporters’ legal fees if they were sued by protesters.
Nwanguma, who is African-American, alleges she was repeatedly shoved by Matthew Heimbach, who is affiliated with the Traditional Worker Party and is opposed to interracial marriage. She also alleges she was shoved and hit by Alvin Bamberger.
Shah also claims she was repeatedly shoved by Bamberger.
Brousseau, a 17-year-old high school student, claims he was punched in the stomach by an unknown Trump supporter.
Bamberger is seen on several videos at the March 1, 2016 rally wearing a Korean War Veterans hat and repeatedly shoving Nwanguma. He said in his court answer to the lawsuit that he “admits only that he touched a woman” and “denies that he assaulted that woman.”
Bamberger’s lawyers wrote that “to the extent that Bamberger acted, he did so in response to — and inspired by — Trump and/or the Trump Campaign’s urging to remove the protesters.”
Bamberger also filed a counterclaim against Trump and his campaign, arguing that Trump or his campaign should pay for any legal judgment Nwanguma wins against him.