Legal commentator discusses First Amendment rights for Trump rally

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The U.S. Constitution provides for peaceful assembly and freedom of speech for those who want to protest an event, such as President Trump’s rally in Phoenix. Legal commentator James Goodnow discusses how protesters can guard their legal rights.

TED SIMONS: THE U-S CONSTITUTION PROVIDES FOR PEACEFUL ASSEMBLY AND FREEDOM OF SPEECH FOR THOSE WHO WANT TO PROTEST AN EVENT SUCH AS PRESIDENT TRUMP’S RALLY TONIGHT IN PHOENIX. BUT THERE ARE CERTAIN RESTRICTIONS. JAMES GOODNOW OF FENNEMORE CRAIG JOINS US TO TALK ABOUT HOW PROTESTERS CAN GUARD THEIR LEGAL RIGHTS. PROTESTERS, THEIR LEGAL RIGHTS, TO ASSEMBLE, TO SPEAK, WHAT REALLY DO THEY HAVE OUT THERE?

JAMES GOODNOW: THE FIRST AMENDMENT COMES FIRST FOR A REASON. THIS IS THE FOUNDATION OF THE DEMOCRACY.THE RIGHT TO HAVE A MARKETPLACE OF IDEAS IS IMPORTANT AND NECESSARY. IT'S NOT UNLIMITED. THE SUPREME COURT SAID TIME AND AGAIN THAT YOU CAN SPEAK. BUT YOU CAN'T GO SO FAR AS TO INCITE VIOLENCE. SO WHAT THE PROTESTERS NEED TO KNOW IS YOU CAN GO OUT AND VOICE YOUR OPINIONS. BUT THE MOMENT IT TURNS VIOLENT OR GETS CLOSE TO THE LINE, IT CAN BE STOPPED, PUNISHED, AND PROHIBITED.

TED SIMONS: ARE THERE OTHER RESTRICTIONS THAT PEOPLE DON'T KNOW ABOUT OR HAVEN'T HEARD ABOUT?

JAMES GOODNOW: IT'S INTERESTING. IF YOU STEP BACK, IT'S REALLY A LAW SCHOOL FINAL EXAM WHEN IT COMES TO THE FIRST AMENDMENT. SO, YOU HAVE TO DRAW A DISTINCTION BETWEEN WHAT'S GOING ON OUTSIDE OF THE CONVENTION CENTER AND WHAT'S GOING ON INSIDE. OUTSIDE ON THE STREETS ON THE SIDEWALKS, THOSE ARE CLASSIC PUBLIC FORA. THESE ARE THE PLACES THAT PEOPLE CAN GATHER. AND FREE SPEECH IS PARAMOUNT THERE. SO UNLESS PEOPLE ARE MAKING CALLS FOR VIOLENCE DIRECTLY, AS AN EXAMPLE, GO GET HIM, SHOOT THE GUN, SPRAY HIM. SOMETHING LIKE THAT. THEY HAVE VERY, VERY BROAD PROTECTIONS UNDER THE CONSTITUTION. NOW, IT CHANGES WHEN YOU GO INSIDE THE CONVENTION HALL HERE WHERE THAT IS NOT GOVERNMENT SPONSORED. THE FACT THAT THIS IS A TRUMP CAMPAIGN RALLY IS IMPORTANT. A LOT OF PEOPLE DON'T REALIZE IS THE FIRST AMENDMENT ONLY APPLIES TO GOVERNMENT ATTEMPTS TO STOP SPEECH. SO IF YOU HAVE A PRIVATE ORGANIZATION, THE TRUMP CAMPAIGN TEAM, THEY CAN KICK PEOPLE OUT. WE SAW THIS TAKING PLACE ALL THE TIME. TRUMP'S FAMOUS LINE, GET HIM OUT OF HERE -- WHEN HE DIDN'T LIKE THAT VIEWPOINT -- IS ACCEPTABLE INSIDE, NOT ACCEPTABLE OUTSIDE.

TED SIMONS: ARE CORDONED OFF AREAS, THESE FREE SPEECH AREAS, WHAT ARE THE LEGAL ENTANGLEMENTS THERE?

JAMES GOODNOW: IT DOES GET THORNY. SO WHAT WE'VE SEEN OVER THE PAST SEVERAL YEARS ARE FREE SPEECH ZONES. WE SAW THIS, IN FACT, WHEN DONALD TRUMP WAS HOSTING HIS CAMPAIGN EVENTS. AND SO THESE ARE WHAT WE CALL TIME, PLACE, AND MANNER RESTRICTIONS UNDER THE LAW. SO THAT'S LEGAL. YOU CAN, IN FACT, PUT PEOPLE INTO SPECIFIC AREAS IF IT'S FOR PUBLIC SAFETY. WHAT YOU CAN'T DO AS A GOVERNMENT, THOUGH, IS SAY WE'RE ONLY GOING TO PUT CERTAIN GROUPS IN THESE AREAS. WE'RE ONLY GOING TO PUT AS AN EXAMPLE THE NEO-NAZIS IN ONE AREA AND THE COUNTERPROTESTERS IN ANOTHER IF ONE IS A BETTER POSITION FOR GETTING THE WORD OUT. THE POLICE HAVE TO BE VERY CAREFUL IN NOT DISCRIMINATING BASED ON VIEWPOINT.

TED SIMONS: A CHILLING EFFECT THERE. THERE'S THE PROSPECT OF SELF-CENSORSHIP, I WOULD IMAGINE.

JAMES GOODNOW: ABSOLUTELY. YOU SEE THAT EVEN ON A MICROLEVEL WHEN IT COMES TO WHAT WE REFER TO AS BUFFER ZONES. WHEN YOU GO BACK TO CHARLOTTESVILLE, THE PROTESTS BECAME VIOLENT WHEN THE TWO GROUPS BECAME CLOSE TO ONE ANOTHER, STARTED SHOUTING AT ONE ANOTHER. THAT'S WHEN THE VIOLENCE ENSUED. SO HERE, YOU'LL HAVE THE POLICE THREADING A CAREFUL NEEDLE IN TERMS OF PERMITTING THESE SPEECH RIGHTS AND TRYING TO KEEP THOSE GROUPS APART. WE HEARD PHOENIX POLICE CHIEF JERI WILLIAMS TALK ABOUT THIS. SHE DIDN'T SAY DIRECTLY WE'RE GOING HAVE BUFFER ZONES BUT READING BETWEEN THE LINES, SHE SAID WE'RE GOING TO HAVE BUFFER ZONES.

TED SIMONS: WE'RE GOING TO HAVE DIFFERENT AREAS THERE. AS FAR AS PEOPLE BEING FALSELY ARRESTED. PROTESTERS BEING FALSELY ARRESTED. HOW COMMON IS THAT?

JAMES GOODNOW: IT HAPPENS, IT CERTAINLY DOES. YOU HAVE TO UNDERSTAND THIS IS A DIFFICULT TASK FOR LAW ENFORCEMENT. YOU HAVE THESE IMPORTANT CONSTITUTIONAL RIGHTS. YOU HAVE PUBLIC SAFETY. YOU HAVE TO MAKE DECISIONS ON THE FLY. SO WHAT HAPPENS IN THE CHAOS IS THAT SOMETIMES PEOPLE ARE FALSELY ARRESTED. IT DOES HAPPEN. NOW THOSE BATTLES CAN BE FOUGHT IN COURT. OFTENTIMES THOSE INDIVIDUALS AREN'T PROSECUTED. ONCE YOU LOOK AT THE VIDEO AND GET THE FULL STORY. BUT THIS IS CHALLENGING FOR THE POLICE AND FOR ALL LAW ENFORCEMENT OFFICIALS TO TRY TO DETERMINE ON THE FLY.

TED SIMONS: I WAS GOING TO SAY, DETERMINE ON THE FLY? WE TALKED ABOUT PROTESTERS' RIGHTS, LAW ENFORCEMENT RIGHTS IN THE PROTEST TO DO WHAT THEY FEEL IS NECESSARY BUT WHERE DOES THAT GO OVER BOUNDS OR DOES IT EVEN COME CLOSE?

JAMES GOODNOW: IT COMES DOWN TO SAFETY. WHAT WE SEE HAPPENING HERE IN PHOENIX NOW IS THAT THERE WERE STEPS THAT LAW ENFORCEMENT TOOK TO STOP THE VIOLENCE IN ADVANCE. SO POLICE HAVE CONNECTIONS TO THE ORGANIZERS OF THESE VARIOUS PROTESTS. THEY HAVE REACHED OUT, ACCORDING TO CHIEF WILLIAMS, AND SPOKEN TO THEM TO TRY TO SET THE PARAMETERS IN ADVANCE. THE REALITY IS, CERTAINLY, IF THERE'S A THREAT OF VIOLENCE, OF IMMEDIATE VIOLENCE TO A POLICE OFFICER, THEY HAVE A RIGHT TO ARREST ON THE SPOT AND TRY TO STOP THAT.

TED SIMONS: SURVEILLANCE TECHNOLOGY, MAYBE SOMEONE HAS A DRONE FLYING AROUND AND THEY'RE GOING TO POINT OUT EACH AND EVERY ONE OF THESE SO AND SOS. OR IF LAW ENFORCEMENT HAS SOME SORT OF SURVEILLANCE TECHNOLOGY, WHERE ARE THE LIMITS OF THAT SORT OF THING?

JAMES GOODNOW: GOOD QUESTION. IT'S A PUBLIC ENVIRONMENT. YOU CAN HAVE YOUR PICTURE TAKEN, YOU CAN HAVE SURVEILLANCE. THAT CAN BE A TOOL TO TRY TO CATCH IT BEFORE IT GETS VIOLENT. AGAIN, FROM THE PROTESTERS' PERSPECTIVE, IF THEY SAY WE'RE SIMPLY VOCALIZING OUR OPINION, IF YOU’RE TRYING TO TARGET ME BECAUSE I’M AGAINST TRUMP, THE CITY WILL HAVE A BIG CONSTITUTIONAL PROBLEM THAT THEY’RE GOING TO HAVE TO DEAL WITH IN THE COURT SYSTEM. AS MUCH AS WE SEE ISSUES OUTSIDE, IT'S POSSIBLE THAT COUNTERPROTESTERS GET IN. IT'S POSSIBLE TOO THAT DONALD TRUMP HIMSELF CAN INCITE VIOLENCE. THIS IS AN ISSUE RAISED ON THE CAMPAIGN TRAIL WHEN HE WAS EJECTING PEOPLE FROM HIS RALLIES. AT LEAST ACCORDING TO SOME, HE WAS CALLING FOR VIOLENCE. KNOCK THE HECK OUT OF HIM.

TED SIMONS: BUT HE CAN CALL. WHAT HAPPENS TO HIM? OR THE CONSEQUENCES OF THE PRESIDENT CALLING FOR VIOLENCE. HE'S THE PRESIDENT.

JAMES GOODNOW: HE IS THE PRESIDENT. IT GETS TO THE ISSUE OF PRESIDENTIAL IMMUNITY. SO FAR WHEN IT WAS CANDIDATE TRUMP, THE COURTS SAID HE DIDN'T GO SO FAR AS TO INCITE VIOLENCE. HE MAY HAVE CALLED FOR IT. IT WASN'T AN IMMEDIATE THREAT. IF HE DID THAT IN THIS EVENT UNLESS IT'S SOMETHING EGREGIOUS THAT GOES BEYOND WHAT WE'VE SEEN SO FAR, YOU'RE NOT GOING TO SEE PROSECUTION FOR THAT.

TED SIMONS: LAST QUESTION, BIGGEST THING PROTESTERS NEED TO KEEP IN MIND.

JAMES GOODNOW: SAFETY FIRST. IT’S FINE AND GREAT AND IT’S AMERICAN TO GO OUT AND VOCALIZE YOUR OPINION, BUT THE MOMENT IT TURNS INTO SOMETHING MORE, YOU NEED TO STEP BACK. DON'T ENGAGE WITH THE OTHER SIDE IN WAYS THAT ARE VIOLENT. THAT WILL UNDERMINE YOUR CAUSE IF YOU STEP BACK FROM A BIGGER PICTURE PERSPECTIVE IN ADDITION TO POTENTIALLY LANDING YOU IN JAIL.

TED SIMONS: GOOD TO HAVE YOU.

GOOD TO BE HERE.

ON TONIGHT'S 10:00 EDITION OF ARIZONA HORIZON, A RECAP OF THE RALLY AND THE CORRESPONDING PROTESTS ALONG WITH ANALYSIS OF A PANEL OF POLITICAL CONSULTANTS. THAT'S TONIGHT, 10:00 RIGHT HERE ON ARIZONA HORIZON. THAT'S IT FOR NOW. I'M TED SIMONS, THANK YOU SO MUCH FOR JOINING US. YOU HAVE A GREAT EVENING.

James Goodnow, legal commentator

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