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Could Trump Be Charged With Inciting Violence?

By Christopher Coble, Esq. on March 15, 2016 | Last updated on March 21, 2019

After a Trump supporter was caught on tape sucker punching a protestor at Donald Trump's rally in Fayetteville, North Carolina last week, the Cumberland Sheriff's Office considered whether to charge the presidential candidate with inciting a riot. This was not the first physical altercation at a Trump rally, but it garnered national media attention perhaps because deputies, also from the Cumberland Sheriff's Office, immediately arrested the black man who had been punched, and only later charged the white man who punched him.

Trump's alleged response to the sucker punching incident was, "He was swinging, he was hitting people and the audience hit back. That's what we need more of." But it's what he has said at other rallies that may get him into trouble.

"I'd like to punch him in the face, I tell ya."

The Washington Post compiled a list of some of Trump's more inflammatory comments, including:

  • "See the first group, I was nice. Oh, take your time. The second group, I was pretty nice. The third group, I'll be a little more violent. And the fourth group, I'll say get the hell out of here!"
  • "Maybe he should have been roughed up, because it was absolutely disgusting what he was doing. I have a lot of fans, and they were not happy about it. And this was a very obnoxious guy who was a trouble-maker who was looking to make trouble."
  • "If you see somebody getting ready to throw a tomato, knock the crap out of them. Just knock the hell out of them. I promise you, I will pay for the legal fees."
  • "Here's a guy, throwing punches, nasty as hell, screaming at everything else, when we're talking ... I'd like to punch him in the face, I tell ya."

While Trump has the same free speech rights as anyone else, the First Amendment doesn't cover certain kinds of speech, including inciting violence or rioting. North Carolina law describes a riot as "a public disturbance involving an assemblage of three or more persons which by disorderly and violent conduct, or the imminent threat of disorderly and violent conduct, results in injury or damage to persons or property or creates a clear and present danger of injury or damage to persons or property." Willfully inciting or urging someone else to engage in a riot is a Class 1 misdemeanor in the state.

Supreme Court Ruling on Inciting Lawless Action

It is highly unlikely that Trump will be charged with a crime in these kinds of cases. The Cumberland County Sheriff's Office later said Trump's actions did not fit the statute, and his campaign began broadcasting an announcement before rallies: "If a protester starts demonstrating in the area around you, please do not touch or harm the protester. This is a peaceful rally."

And without being more specific in his pugilistic pronouncements, other jurisdictions will likely face the same difficulty in pressing criminal charges. In 1969, the Supreme Court decided Brandenburg v. Ohio, which holds that the government can only suppress speech that advocates the use of force or breaking the law when the advocacy is directed to inciting imminent lawless action and is likely to incite such action. Most of Trump's comments thus far have been just vague enough so as not to rise to the level of inciting violence.

Then again, there's no telling what he might say at his next campaign rally. His event last Friday in Chicago had to be cancelled because of security concerns.

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