The pace of legal news in the third year of the Trump administration is dizzying; sometimes it seems as if our legal system is shaking itself to pieces, like a car driven too fast too long. So you can be forgiven if you missed two news developments earlier this month: first, a decision by a federal district court in California to dismiss federal indictments against four members of the neofascist Rise Above Movement (RAM), and, second, a petition for rehearing of a decision upholding a federal civil suit in Louisiana against DeRay Mckesson, one of the organizers of the Black Lives Matter movement.
There is no universe in which both of these decisions are correct. The California judgment was right; the Louisiana decision was grievously, horribly, scandalously wrong. One can only hope that the full Fifth Circuit Court of Appeals will heed the wisdom of the California district court (and 75 years of Supreme Court precedent) and call its erring panel sharply to heel.
Let’s start with the fascists. As documented by ProPublica in 2017, RAM is a collection of white-supremacist thugs who train in violent tactics and deploy them to break up left-wing demonstrations. Members of RAM took part in the 2017 Unite the Right demonstration in Charlottesville, Virginia, at which a counter-demonstrator, Heather Heyer, was killed. They’ve also fought street battles up and down the West Coast—and those acts induced federal prosecutors in California to charge four of them with conspiring to violate the federal Anti-Riot Act. This act criminalizes traveling or using interstate commerce “with intent to incite … organize, promote, encourage, participate in, or carry on a riot,” or commit, or abet, “any act of violence in furtherance of a riot.” Violations can be punished by up to five years in prison.
The act was passed in the spring of 1968, amid public concern about uprisings in black communities and anti-war demonstrations on the streets—and in fact, all the leading cases on its constitutionality arise out of the government’s unsuccessful attempts to jail anti-war protesters after the disorders at the 1968 Democratic Convention in Chicago.
According to the federal indictment, the RAM defendants not only organized, trained, and urged others to engage in violence; they themselves committed assault against “antifa” (short for “antifascist”) demonstrators and journalists at rallies in Huntington Beach, Berkeley, and San Bernardino, California. Plenty there to hang criminal charges on.
But the First Amendment doomed this worthy attempt to use the Anti-Riot Act. District Judge Cormac J. Carney noted that the statute, on its face, violates important Supreme Court free-speech precedents. The government argued that the defendants had “incited” riot by exchanging texts and posting social-media posts before and after the protests. But, Carney wrote, “incitement” in American law has a very narrow meaning. Under a 1969 case called Brandenburg v. Ohio, “incitement” means only speech that is “directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”
Three requirements: intent; imminence; and likelihood. The three are there because, for generations, American law allowed government to criminalize all speech urging people to break laws, or even to think about breaking them. Criticizing the war effort in World War I, for example, might make people want to refuse the draft—so the Supreme Court allowed the government to imprison socialist leaders such as Eugene V. Debs for “sedition.” As the civil-rights movement challenged segregation across America, states sought to use “sedition” and “incitement” laws against demonstrators; the Court in Brandenburg clarified that only the most direct and dangerous speech—“Let’s take these rocks and stone him now!,” in effect—would meet the First Amendment’s test for “incitement.”
Certainly the RAM defendants’ speech was dangerous, and harmful, and endorsed violence; but what was missing, Carney held, was the “now” element. “The Anti-Riot Act,” he wrote, “has no imminence requirement.” Some of the acts alleged in the indictment took place hours or days before any violence. Punishing speech because of later acts, Carney noted, also runs up against a venerable civil-rights era precedent called NAACP v. Claiborne Hardware, in which Mississippi sought to punish a civil-rights group because one of its leaders made “an impassioned speech, which was later followed by acts of violence.” Like the tort law at issue in Claiborne Hardware, he wrote, “the Anti-Riot Act criminalizes speech even if violence occurs weeks or months after the speech—or even if the violence never occurs.” Under a First Amendment doctrine called “substantial overbreadth,” a statute that can be used to penalize a good deal of “protected speech” is invalid in all its uses—even against speech (or acts) that could be punished under a properly drawn statute.
So the racist thugs went free. The First Amendment protects such hateful speech, not because it is harmless—it is not—but because a government that can outlaw such speech can outlaw criticism of itself. That is a fundamental principle of First Amendment law, and the Roberts Court is very careful to repeat it every time it protects the speech of corporations or the Koch brothers.
This takes us to Doe v. Mckesson, the civil suit against DeRay Mckesson decided on April 24 by a panel of the Fifth Circuit Court of Appeals. Mckesson is an African American civil-rights leader who has been prominently involved in the Black Lives Matter movement. As readers of this page know, Mckesson was at a protest in Baton Rouge where someone threw an object that injured a police officer; now the officer, proceeding under a pseudonym, wants Mckesson to pay him for his injuries, claiming that Mckesson “did nothing to calm the crowd” and “incited the violence.” A federal district court, drawing on the same case law as the California court, dismissed the case; Doe’s complaint did not, he noted, “state … how Mckesson allegedly incited violence or what orders he allegedly was giving.” Indeed, “the only public speech to which Plaintiff cites … is a one-sentence statement that Mckesson allegedly made to The New York Times: ‘The police want protestors to be too afraid to protest.’ … This statement falls far short of being ‘likely to incite lawless action,’ which Plaintiff would have to prove to hold Mckesson liable based on his public speech.”
But in April, a three-judge panel of the Fifth Circuit, without even bothering to hear oral argument, issued a surprise decision reversing the district court. The panel decided that Mckesson could be sued for the officer’s injuries—not because of his intent, but because he was careless. “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,” the panel wrote.
First Amendment specialists have a term for certain kinds of legal action—“chilling effect.” A hostile jury verdict might bankrupt a defendant; anyone might hesitate to lead or even take part in a protest if a plaintiff could take away his or her house or retirement fund because of something someone else does at the event. For this reason, tort suits were used as a weapon of terror against civil-rights leaders during the 1960s. Some of them lost cars and real estate after state-court judgments—until the Supreme Court, in cases like Claiborne Hardware and New York Times v. Sullivan, made clear that the First Amendment limits tort suits as surely as criminal prosecutions.
I know I am being rather a bore about this case; but the stakes are high, and the Fifth Circuit panel’s offense is rank. The decision was not simply lawless, but insolently so. The full court of appeals has a chance to rectify this, by granting the petition for rehearing, vacating the panel opinion, and deciding the case properly.
The RAM and Mckesson cases were decided in different circuits, but there is only one Constitution, and only one set of Supreme Court case law, which both courts are sworn to apply. The only distinction I can see between the cases is one which—by the rules of mainstream public discourse—I am not supposed to mention. But I am southern by birth, raised during the death agonies of Jim Crow. I know that, in the South at large, including the three states of the Fifth Circuit, the terror of slave revolt sounds a faint nightmare tocsin in white ancestral memory. To a certain cast of the judicial imagination, speech by a DeRay Mckesson may seem to be unprotected because … something … about Mckesson may seem uniquely dangerous.
What could that “something” be?
This suggestion will produce the obligatory ceremonial outrage. Judge X, I am sure, is a doughty companion to one and all; Judge Y must certainly have a variegated circle of friends; Judge Z’s body, no doubt, utterly lacks that anatomically elusive “racist bone.”
But still: Tell me race has nothing to do with this case and I will (to quote the late Professor Charles Black of Yale on a similar topic) “exercise one of the sovereign prerogatives of philosophers—that of laughter.”
This article is part of “The Speech Wars,” a project supported by the Charles Koch Foundation, the Reporters Committee for the Freedom of the Press, and the Fetzer Institute.
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