Trump speaking at rally in Wilmington, NC

Sorry Donald. Your “unification” argument, as sometimes protected under a Supreme Court First Amendment ruling, just may not apply here.

It’s all about the precedent

Anyone who’s been within earshot of the internet or TV media over the past few hours knows that Donald Trump has once again stepped in a stinking pile of his own excrement with his veiled lone wolf threat to incite the assassination of Hillary Clinton, or perhaps a Supreme Court Justice:

“If she gets to pick her judges, nothing you can do folks. Although the Second Amendment people, maybe there is I don’t know.”

Within minutes of his public statement the media rightfully exploded with cries of foul play, including an assertion from former NSA Director Michael Hayden that Trump should be cuffed and taken downtown:

“Well, let me say if someone else said that outside of the hall, he’d be in the back of a police wagon now, with the Secret Service questioning him.”

While perhaps any ordinary citizen would find themselves under the glare of a bare lightbulb for the duration, what is the risk Trump will be held accountable for his brazen remark?

In an unusual moment of panic-driven clarity his campaign staff issued the following statement, no doubt with a cadre of legal advisers as ad hoc editors:

“It’s called the power of unification — 2nd Amendment people have amazing spirit and are tremendously unified, which gives them great political power. And this year, they will be voting in record numbers, and it won’t be for Hillary Clinton, it will be for Donald Trump.” (emphasis mine)

That may seem like the BS it truly is, but the word “unification” is a sly pre-emptive legal maneuver based on Supreme Court precedent which protects otherwise violent speech that seeks to unify.

Justia Law informs us that, while the area remains a bit murky, there are bits and pieces of legal precedent available to those wishing to cover their butts — legally speaking. A number of cases have dealt with First Amendment protections and threatening speech, including Watts v. United States in which the defendant, Watts, a military draft protestor during the Vietnam era stated at a public rally that “If they ever make me carry a rifle, the first man I want to get in my sights is L.B.J.” The Supreme Court decided that his speech was protected because it was not a “true threat” intended to incite others to act and was mere “political hyperbole.”

However, the next major test of violent speech, NAACP v. Claiborne Hardware Company delved a bit deeper into the topic of intent. This is where the idea of unification for a cause comes into play. The court conditionally protected violent speech:

“An advocate must be free to stimulate his audience with spontaneous and emotional appeals for unity and action in a common cause. When such appeals do not incite lawless action, they must be regarded as protected speech.” (emphasis mine)

Trump’s words may only meet half of that test though. Another case, Planned Parenthood v. American Coalition of Life Activists, a case involving the incited murder of abortion providers put before the Ninth Circuit offers some much-needed illumination on the topic of what defines a “true threat”:

“[A] statement which, in the entire context and under all the circumstances, a reasonable person would foresee would be interpreted by those to whom the statement is communicated as a serious expression of intent to inflict bodily harm upon that person… It is not necessary that the defendant intend to, or be able to carry out his threat; the only intent requirement for a true threat is that the defendant intentionally or knowingly communicate the threat.” (again, emphasis mine)

A lone wolf call has been made by this mad man, and no clever press release in the world can un-ring that bell.