DeRay Mckesson spoke during a rally on the National Mall to mark the 50th anniversary of the assassination of Martin Luther King Jr.Eric Thayer / Reuters

On March 1, 2016, Donald Trump pointed to a group of protesters at a campaign rally in Louisville, Kentucky, and said “Get ‘em out of here,” piously adding, “Don’t hurt ‘em.” Supporters assaulted the protesters as they were led out.

The protesters later sued Trump for “incitement to riot”; a panel of the Sixth Circuit dismissed the claim: “The mere tendency of speech to encourage unlawful acts” is not “sufficient reason for banning it.” Even if Trump had intended to encourage violence, the First Amendment still protected him, unless “the words used specifically advocated the use of violence, whether explicitly or implicitly.”

The decision was correct; the Supreme Court has repeatedly held that public protest, and even advocacy of violence, is protected by the First Amendment unless clearly intended to cause immediate violence. But a three-judge panel of the Fifth Circuit, in a case decided last week, seemed to see things otherwise; it made a mockery of Court precedent even as it reached back to revive an old segregation-era tactic: civil lawsuits to intimidate protesters.

On July 9, 2016, a group of Black Lives Matter activists blocked the highway in front of the Baton Rouge, Louisiana, police-department headquarters to protest the July 5 killing of Alton Sterling. Someone threw a hard object at police, injuring a Baton Rouge Police Department officer, who later reported “loss of teeth, a jaw injury, a brain injury, a head injury, lost wages, ‘and other compensable losses.’”

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.”

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.

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.

Last I checked, “negligent protest” wasn’t really a thing in America. I could find only one reference to the idea in the case law—in a 1987 case decided by the Fifth Circuit. In that case, a family alleged that Hustler magazine had caused their son to asphyxiate himself as part of sex. “Mere negligence, therefore, cannot form the basis of liability under the incitement doctrine any more than it can under libel doctrine,” Judge Alvin Rubin wrote for a two-judge majority.

There’s a good reason for that. Imagine you want to protest a highway being built near your house. You and your neighbors organize a demonstration. Someone you don’t know throws a rock. Under the negligence rule, you become personally liable for any injuries it causes. It would take a lot of courage to organize protests in a country where that was the rule. A tort verdict, plus lawyer fees, could easily bankrupt an ordinary family.

In a statement, Alanah Odoms Hebert, the executive director of the Louisiana chapter of the ACLU, put it this way: “The principles outlined in this decision put civil disobedience at risk. If this doctrine had existed during the civil rights movement there would not have been a civil rights movement.” John Paul Schnapper-Casteras, a former appellate counsel for the NAACP Legal Defense and Educational Fund, sounded much the same note in an email to me: “The Fifth Circuit seems to embrace a broad theory of negligence to suggest that it’s plausible to impose liability upon a non-violent protestor/organizer for the violent actions of a third party. If that were the law of the land, it could be at odds with America’s long history of protesting and marching in the streets.”

These concerns aside, the Fifth Circuit twisted the meaning of that single reference to the First Amendment. “The First Amendment does not protect violence” comes from NAACP v. Claiborne Hardware, which arose in 1966 when the NAACP in Claiborne County, Mississippi, called on black people in the area to boycott white-owned stores. In a rally supporting the boycott, the civil-rights leader Charles Evers told the crowd that “if we catch any of you going in any of them racist stores, we’re gonna break your damn neck.” When, later on, someone fired through the window of a home and smashed a car windshield, local merchants filed a tort suit (like Doe’s) alleging that the NAACP was engaged in an illegal boycott and that Evers and other leaders had threatened violence to enforce it. Mississippi state courts decided that the association and its leaders were liable for the merchants’ lost profits. Appeals dragged on until 1982, when the Supreme Court ordered the case dismissed on First Amendment grounds.

The Court did use the words The First Amendment does not protect violence—but only to make clear that neither the boycott nor Evers’s speech could be the basis for a lawsuit. When “violence and … threats of violence” occur “in the context of constitutionally protected activity,” that context “imposes restraints” on what and whom tort law may punish, wrote Justice John Paul Stevens.

Thus, no leaders of the boycott could be sued unless the plaintiffs could show that they had “authorized, directed, or ratified specific tortious activity,” explicitly “incited” violence, or ordered others to carry out violent acts. That couldn’t be shown in Claiborne Hardware.

Claiborne Hardware was one of several cases that established the robust speech protections most protesters take for granted today. When Alabama sued the NAACP to demand a list of its members, the Supreme Court sided with the NAACP in 1957. When Virginia sued the NAACP because it actively solicited plaintiffs for test cases, the Court sided with the NAACP in 1963. Then southern authorities, including police officials, filed libel suits against northern news organizations—and local civil-rights workers—who criticized southern governments in out-of-state news media. In 1965, the landmark case of New York Times v. Sullivan guaranteed the right to criticize officials without fear of massive libel judgments.

Now a panel of the Fifth Circuit has reopened the argument more or less out of a clear blue sky. One can only speculate on why these three judges—appointed by Ronald Reagan, George W. Bush, and Donald Trump—have decided that the First Amendment needs a working-over and that now is the time to do it. Certainly, the ordinary restraints of case law are slipping their moorings in the Trump era. The Fifth Circuit last year openly defied Roe v. Wade and Planned Parenthood v. Casey; the Supreme Court majority cringed in front of the administration in the “travel ban” case; Justice Clarence Thomas has recently called for the Court to overrule New York Times v. Sullivan.

The past two years have been a kind of national Walpurgisnacht, calculated to summon the worst impulses of conservative jurists. We own the courts now, an inner voice may be whispering; no need for precedent or even explanation. Doe v. Mckesson may be an anomaly, but it also may be a straw in a very chill wind.

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