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Freedom of Speech:   Trump's right trumps yours....

Freedom of Speech: Trump's right trumps yours....

Many folks are understandably confused about the apparent conflict between the constitutional right to express an opinion vs. Donald Trump's right to suppress your opinion at his rally.   Since he's coming to the Richmond Coliseum, here is a synopsis of the law.

The First Amendment to the US Constitution states:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

As you see, the first amendment applies to governmental action.  In a private rally, paid for by the candidate, it's generally treated as a private event.  When Trump ejects someone whose opinion differs from his, it's not a government action when he ejects them.  It's like you're in Trump's home (without the golden ceiling & his portrait on the wall).  When you don't want someone in your home you tell them to leave.  If they don't leave then they can be charged with trespass.  In Virginia, you must FIRST be told to leave (this can be done verbally, with a sign or another means) and then refuse in order to be convicted of trespass.  You can not be charged & convicted of trespass by simply voicing a contrary opinion at a rally, so long as you leave when you're asked.  

The Constitution of the United States grants citizens the right to freely express their opinions.  This means that the government may not suppress it except for limited circumstances.  This right allowed Trump to publicly criticize a Federal Judge even when the criticism is widely viewed as racist.   The US Government may NOT stop him from making statements of this sort.  If you've kept up with the election, you know that Trump has very much enjoyed every bit of his constitutional right to speak freely.   Ironically, he used this right to voice his threat to clamp down on the media's right to speak freely by publishing negative stories about him.  

So the basic ground rules for Trump rally attendees are as follows:

1. Attend the rally if you have a ticket and you're so inclined;

2. If you're sporting an anti-Trump shirt or a sign, you may be ejected right off the bat by private security.   There's no point fighting it because they have the right to eject you since it's a private event;

3. If you speak out, you'll likely be ejected as well.  There's no criminal charge unless you refuse to leave when asked or you engage in conduct or make a statement that expressly incites unlawful conduct;

4. You may freely express your opinions outside the Coliseum and he has no authority to silence you;

5. Because these issues are often murky even for law enforcement there can easily be unjustified arrests.  So DON'T ENGAGE IN ANY VIOLENCE OR TRESPASSING (refusing to leave when asked to do so).  If you do get charged with something, get a good lawyer.  These constitutional issues can be intriguing for criminal lawyers and constitutional issues can be precedent setting. Also, document & record everything including information about anybody who may be a witness.  

Just like our justice system is a machine; the political system is also a machine.   The working parts of the political machine include the constitutional rights to assemble peaceably and to speak freely in public.  It includes the media, the internet, all means of public discourse and the voting booth.  The drafter's of the Constitution believed that free speech was important and it's been put to the test in this election.   I think the "political machine" is working.  Neither President Obama nor any other agency of the US government has made any attempt to stifle Trump's speech (but the GOP has).   Voters are craving information about each candidate before it's time to cast a vote.  Through his words, we've learned much about Trump's views on the Federal Judge in the fraud case against "Trump University" as well as his views of various women and minorities (depending on your own interpretation of his comments of course). You may not like what he says but if you're in his house (i.e.; today, the Richmond Coliseum) then he can say what he wants... but you can't.   That's right, it's his party so he gets to decide who eats cake.

In summary, on public property, neither the government nor Trump can suppress your right to free speech.   There are a few exceptions like using words that incite a riot or by using "fighting words."  If you're in the Richmond Coliseum and provoke violence or criminal activity then you can be charged with inciting a riot, assault or a myriad of other things.  Over the years the Supreme Court has come to the view that an individual can be punished for such speech only if he expressly incites unlawful conduct.  This same test applies to Trump himself.   That's why folks have heard him make statements that arguably encourage violence at his rallies.   As long as he's not making specific statements to expressly incite unlawful conduct then he has a right to that speech as well.

 I think it's important to know the candidates.  I want to hear all about their inclinations as well as their temperament to be a role model for children and a leader of the free world.  The citizens deserve to know the candidates' feelings & beliefs about people who are of a different race or gender. 

So Donald, please continue....really, please exercise your right to speak freely.  Free Speech is vital for the machine to work properly.  As a lawyer, I recognize that your constitutional right to free speech would trump mine at your rally.  As a citizen and voter, I always appreciate a window into your psyche. 


* All thoughts and ideas contained in this blog are purely and entirely that of the author.  No television, radio or print media has any association or influence on the content of this blog.*

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