DeRay Mckesson, a high-profile, Baltimore-based Black Lives Matter organizer, was arrested along with more than 100 others. The anonymous officer, referred to as John Doe, sued Mckesson and the entire Black Lives Matter movement, alleging that “Mckesson did nothing to prevent the violence or to calm the crowd” and that he “incited the violence.”
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Doe’s 17-page complaint portrays the Black Lives Matter movement as a violent nationwide conspiracy. But nowhere does it allege a specific word or action taken by Mckesson that led to or caused the violence in Baton Rogue. The closest it gets is: “Black Lives Matter leadership ratified all action taken during the protest. DeRay Mckesson ratified all action taken during the Baton Rogue protest.”
A federal district judge dismissed the lawsuit in September 2017. Plaintiffs can’t sue an entire social movement, the judge noted (“#BlackLivesMatter”—a hashtag—lacks the capacity to be sued,” he wrote); as for Mckesson, “The only public speech to which Plaintiff cites in his Complaint is a one-sentence statement that Mckesson allegedly made to The New York Times: ‘The police want protestors to be too afraid to protest.’” Those words, the judge wrote, “do not advocate—or make any reference to—violence of any kind.”
At that point, Doe v. Mckesson seemed like one of hundreds of nuisance lawsuits filed every year. Press coverage was desultory; the civil-liberties groups I reached out to last week had barely registered it.
A panel of the Fifth Circuit Court of Appeals held the case from late 2017 until last week, when, without allowing oral argument, the panel reinstated the lawsuit. It said that the officer, if he proves his claims, could collect damages because “Mckesson breached his duty of reasonable care in the course of organizing and leading the Baton Rouge demonstration.” Because blocking a highway is against the law, “Mckesson should have known that leading the demonstrators onto a busy highway was most nearly certain to provoke a confrontation between police and the mass of demonstrators, yet he ignored the foreseeable danger … and notwithstanding did so anyway.” Someone else threw the object; there was no evidence that Mckesson urged anyone to throw anything. Nonetheless “Mckesson’s negligent actions were the [factual] causes of Officer Doe’s injuries.”
The Fifth Circuit panel’s decision is clearly wrong under the law as it now stands. There can be no liability, civil or criminal, for speech that “incites” violence unless the defendant can be shown to have intentionally urged violence, knowing that listeners would likely respond immediately with violent behavior.
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Here’s the opinion’s entire discussion of the First Amendment: “The First Amendment does not protect violence.” This, while true, is irrelevant. Mckesson isn’t accused of any violent act. He’s accused of “negligently” leading a protest at which someone else became violent.