Our Legal Right To Speak And Assemble, And Our Moral Responsibility To Be Civil

Frederick M. Lawrence Senior Research Scholar, Yale Law School
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In past weeks, the political atmosphere surrounding the Republican and Democratic primaries has become more heated. This by itself is neither surprising nor concerning. As the stakes get higher in Presidential politics, the temperature often rises. What is very surprising and deeply concerning is that some of this political atmosphere has in fact become more dangerous. This is especially true at recent Donald Trump rallies, which have needed a strikingly strong police presence to maintain order and keep violence under control. Trump supporters and protestors have been clashing — both verbally and physically.

Due to this new menacing normal at Trump rallies, Kansas City police had to use teargas to disperse protesters and Trump’s campaign postponed a Chicago rally due to security concerns. This is not about supporters and protesters debating the issues or even calling each other names; this is punching, kicking, biting — even murder threats. A sheriff in North Carolina is investigating the Trump campaign for incitement to riot.

All parties to these events have asserted their freedom of speech. In fact, there are three separate issues involved here, all involving free expression: two involve actual legal rights and obligations and the third involves moral responsibilities.

The legal rights and responsibilities arise from the twin rights of freedom of speech and freedom of assembly. The Trump supporters have the right to gather to hear their candidate speak, and he has the right to speak before his supporters and express his views. Those who oppose his views have the right to express that opposition and to protest, so long as they are in public venues and the rallies are open to the public. They do not, however, have a right to disrupt his rallies — non-disruptive protest is clearly within their rights, and that would include holding up signs, demonstrating peacefully and quietly inside the venue, and demonstrating in any lawful way outside the venue.

The third issue involves a moral responsibility not to engage in violence-conducive speech. I distinguish violence-conducive speech from speech that actually aids and abets in imminent violence. Violence-conducive speech is speech that while not directly aiding the commission of a violent act, nevertheless creates a climate where violence is encouraged. Legally, such speech is protected by the first amendment. Morally such speech is reprehensible. Violence-conducive speech is different from speech that actually aids and abets in imminent violence, which is not even legally protected. Examples of such speech include actual threats to individual victims that are intended to create fear of direct harm, or conspiracy to commit violence. Justice Oliver Wendell Holmes, Jr., famously observed, that one has no right to shout “fire” falsely in a crowded theater.

People may have a right to engage in violence-conducive speech under our broad system of free expression, but the fact that we legally may do something, does not mean that we morally should do so. When Mr. Trump, in front of large gatherings of supporters, says such things as “I’d like to punch him (a protester) in the face,” or “In the good old days, they’d have ripped him out of that seat so fast,” or “knock the crap out of him would you? Seriously, OK, just knock the hell – I promise you that I will pay for the legal fees – I promise, I promise” (February 1), or “see in the good old days this didn’t used to happen because they used to treat them very rough; we’ve become very weak,” he may be exercising his first amendment right to engage in violence-conducive speech, but he is acting in violation of his responsibility to behave civilly.

To be part of a civilized society, we live in an interwoven set of rights we enjoy and responsibilities we take on. All citizens, especially those seeking positions of national leadership and who already have national influence, have a moral responsibility for the consequences of their words and a moral responsibility to shun speech that inappropriately condones and indeed stirs up violence.

Frederick M. Lawrence is Senior Research Scholar at Yale Law School and the former President of Brandeis University.