First Amendment Forbids Ideological Discrimination in Protecting Rallies

Anti-Trump demonstrators beat up Trump supporters outside a Trump rally in San Jose, California this week, while police initially did nothing but watch. As Buzzfeed News notes, “rallygoers simply trying to get back to their cars were chased down and beaten — often at the feet of San Jose Police, who stood by motionless. … Police were present at the gathering, but took a hands-off approach to the crowd. In some cases, officers stood nearby as fighting and violence broke out. … A police source told BuzzFeed News that officers were under orders to not break ranks.” “Video from the scene showed a self-identified Trump supporter being struck in the head by a protester. He later had blood streaming down his face. … Another Trump supporter was attacked with eggs and bottles.”

What is especially troubling about this is the possibility that police may have provided less protection to participants in the rally based on San Jose officials' hostility to their viewpoint. A federal appeals court has ruled that police may not provide less protection to people who attend a demonstration or rally based on its viewpoint – even an odious viewpoint, like a demonstration where the American flag was burned. See Dwares v. City of New York (1992). Similarly, the Supreme Court said that even the Nationalist Movement – an extreme racist organization – could not be discriminated against based on its viewpoint. See Forsyth County v. Nationalist Movement (1992).

It is obvious that a Presidential candidate (and the presumptive Republican nominee) should be able to hold a rally without disruption. But San Jose Mayor Sam Liccardo (D), a Clinton supporter, evidently disagrees, as The Weekly Standard's Ethan Epstein notes in “San Jose Mayor Justifies Mob Violence.” “Donald Trump needs to take responsibility for the irresponsible behavior of his campaign,” Liccardo said, essentially endorsing the heckler’s veto.

It is very suspicious that police were reportedly ordered to stand by for “about 90 minutes” while this violence occurred. Put the shoe on the other foot: Imagine a white mayor telling his cops to stand down while whites were beating up blacks for 90 minutes.

The comment threads at progressive publications are full of readers implying that the Trump supporters were asking for it by attending a Trump rally. Few of them were as candid as a Deputy Editor at Vox, who said that rioting at Trump rallies was justified, as long as it didn't rise to the level of “murder” (he has been temporarily suspended for making his publication look bad). His “Advice: If Trump comes to your town, start a riot. . . Destroying property is legitimate. Shouting down is legitimate. Disruption of all events is legitimate. Murder isn’t.”

But even many progressives who purported to deplore the violence suggested the violence was an understandable and inevitable reaction to Trump, whose rhetoric is supposedly just as “damaging” as the assaults. To them, speech that offends them is essentially the same as violence.

There is a deep irony in these commenters’ claims that Trump supporters are nasty authoritarians who don’t deserve free speech. Over the years, progressives who disagreed with my writings have told me repeatedly that I should die, and that my wife and daughter should be raped. By contrast, when I published five blog posts in March that weren’t complimentary of Trump, no Trump supporter said anything mean to me at all, even though one of them was read by thousands of people.

The lesson for progressives is that if authoritarian speakers could be deprived of free speech, progressives might be among the first to lose their free speech as a result.