Trump Is Not Violating Protesters’ Free-Speech Rights
by Jacob G. Hornberger
The protesters at Donald Trump’s rallies have a misguided conception of the fundamental right known as freedom of speech. Outraged at being thrown out of Trump’s rallies, they scream, “What about my First Amendment rights?”
But the fact is that their constitutional rights are not being violated when Trump’s people toss them out of the room. That’s because the First Amendment applies to the government, not private people.
Trump is running for president but unless he wins, he remains a private citizen. As such, he has the right, under principles of private property, to run his rallies any way he wants. If he wishes to prohibit opponents, protesters, disrupters, and even the press from attending, that’s his right to do so. If such people enter anyway, Trump has the authority to physically throw them out and even charge them with the criminal offense of trespass.
What can Trump’s opponents do in response? They’re free to go out and organize their own rallies, where they can make as many anti-Trump speeches as they wish. They just do not have any right to disrupt Trump’s rallies.
Some might argue that the reason that Trump can kick out his detractors is because the right of free speech has limits. They’ll say that just as people aren’t free to cry “Fire!” in a crowded theater, protesters shouldn’t be free to disrupt a candidate’s speeches.
But that position reflects a misguided view of free speech. Under principles of private property, a theater owner has the right to run his theater any way he wants. As such, he has the right to set any conditions he wants for the use of his property. Thus, it is entirely within his rights as a theater owner to post signs around his theater and stamp people’s tickets with, “Anyone who wants to cry ‘Fire!’ in this theater is free to do so.”
That’s what private property is all about.
By the same token, consumers are free to avoid going to that theater.
The reason Trump is free to evict those protesters is that he is owner of the event.
College students are especially mystified over Trump’s ability to engage in what the students are convinced is a violation of their free-speech rights. But that’s because most of them have been educated in a system based on government-owned schools, government-owned colleges and universities, and government-supported colleges and universities.
The First Amendment prohibits the government, but not private entities, from infringing the right of freedom of speech. The Fourteenth Amendment, which the Supreme Court has held incorporates the First Amendment, prohibits the states from infringing freedom of speech.
Public schools at the elementary, middle school, and high school levels government schools. They are owned and operated by the state. Since the Constitution prohibits states from interfering with freedom of speech, state schools are prohibited from doing so. Of course, that naturally raises all sorts of irreconcilable problems with respect to free-speech rights versus how the school is going to be run.
With private schools, the issue of free speech never arises. The owner of a school is free to set any conditions he wants for students attending his school. Under principles of private property, a school can say, “No student can wear a shirt with a political slogan.” Students, for their part, are free to go elsewhere.
State universities and state-supported universities are in a similar bind as public schools. They are government institutions or quasi-government institutions and, therefore, subject to the constraints of the First Amendment and Fourteenth Amendment. Just as with public schools, this raises countless irreconcilable conflicts between people who are exercising free speech rights and the private owners who have the right to run the school the way they see fit.
Private colleges — that is, those that are privately owned and that take no government funds — are in no such predicament. They are free to run their schools any way they want. If students don’t like the rules, they’re free to go to other colleges.
The ideal is separate education and the state, both at the pre-college level and the college level, so that all education is private. Government, both federal or state, would play no role whatsoever in education.
For one thing, no one should ever be forced to fund or subsidize any educational institution. If a school can’t make it in the free market with tuitions and donations, then it should go out of business.
Second, by separating education and the state, all controversies regarding free speech on campus would disappear.
Whatever else might be said about Donald Trump and his protesters, at least they are helping educate people on the principles of free speech, private property, and the Constitution.