The Roberts Court has repeatedly assured the nation that the First Amendment protects everyone, regardless of popularity and regardless of viewpoint. The Court has a chance to put its doctrinal money where its free-speech mouth has been. It should do that as soon as possible by summarily reversing a recent atrocious Fifth Circuit decision called Mckesson v. Doe—rather than waiting until a Louisiana policeman has a chance to bankrupt a civil-rights activist with enormous litigation costs.
In this decision, a conservative panel of the Fifth Circuit—without even hearing oral argument—mounted a frontal offensive on a venerable First Amendment precedent that has protected unpopular speakers for four decades. The panel’s three judges (E. Grady Jolly from Mississippi, Jennifer Walker Elrod from Texas, and Don Willett from Texas) flatly defied that precedent and allowed a punitive lawsuit to proceed against DeRay Mckesson. Mckesson is one of the founders of Black Lives Matter, a speaker whose ideas are not merely unpopular among conservative, southern whites like the judges, but are seen to be truly “fraught with death,” as Justice Oliver Wendell Holmes Jr. once described speech that, though abhorrent, deserves protection.
Mckesson’s case goes back to July 5, 2016, when police in Baton Rouge, Louisiana, shot and killed a street vendor named Alton Sterling under unclear circumstances (Sterling was carrying a gun, but witnesses denied police accounts that he had been aggressive; no charges were brought against the officers). On the night of July 9, Black Lives Matter activists, including Mckesson, took part in a protest outside the police headquarters and blocked the highway. Police responded in force, arresting about 70 people or more, including Mckesson. (This protest is where the Reuters photographer Jonathan Bachman took the iconic photo “Taking a Stand in Baton Rouge,” depicting the Pennsylvania nurse Ieshia Evans facing down a line of armored police.) During the demonstration, someone threw a hard object that injured Officer Doe.
The arrested protesters sued city and county law enforcement for excessive force, and received a settlement totaling around $100,000 and an agreement that their arrest records would be expunged. Then Officer Doe (he received court permission to proceed under a false name) brought a suit against Mckesson and the entire Black Lives Matter movement, arguing that “Black Lives Matter leadership ratified all action taken during the protest. DeRay Mckesson ratified all action taken during the Baton Rouge protest.” Mckesson “incited the violence,” the suit alleged. But it offered no specific evidence—Mckesson’s alleged “incitement” was, the suit said, telling The New York Times that “the police want protestors to be too afraid to protest.”
The theory of this ridiculous case originated with Larry Klayman, the flamboyant “birther” lawyer who, most recently, brought a $200 million conspiracy and defamation lawsuit on behalf of George Zimmerman against the family of Trayvon Martin, the unarmed teenager he shot in 2012. After a shooter in Dallas killed five police officers in 2016, Klayman brought a $550 million suit against former President Barack Obama, the Nation of Islam, the New Black Panther Party, the civil-rights activist and TV host Al Sharpton, the billionaire philanthropist George Soros, and a group of BLM activists, including Mckesson. A federal district court dismissed that suit on multiple grounds, but Doe’s attorneys borrowed Klayman’s theories; they trundled them into federal court in Louisiana, alleging that because Mckesson led a protest and someone else committed a violent act there, Mckesson was responsible for the officer’s injuries.
A trial judge dismissed the case. The claim ran straight into an established Supreme Court precedent—a 1982 case called NAACP v. Claiborne Hardware. Claiborne Hardware concerned a civil-rights boycott against segregated local stores in a Mississippi county. At a rally, the civil-rights leader Charles Evers warned listeners that “if we catch any of you going in any of them racist stores, we’re gonna break your damn neck.” During the boycott, persons unknown committed acts of vandalism; local merchants sued the NAACP, claiming that Evers and the organization were enforcing an illegal boycott by violent means. In 1982, the Supreme Court, 8–0, ordered the case dismissed.
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 for seven of the eight justices. Thus, plaintiffs needed to show that Evers and the NAACP had “authorized, directed, or ratified specific tortious activity,” explicitly “incited” violence, or ordered others to carry out violent acts. There was no such evidence in Claiborne Hardware, and Doe didn’t offer any in the Mckesson case. The BLM protesters did possibly violate the law by blocking traffic, but authorities were unable to prove the offense, and apologized and paid compensation for the arrests.
The officer appealed to the Fifth Circuit—arguably the most conservative circuit in the country—at which point the case took a strange turn into the constitutional Twilight Zone. Someone at the court—a judge or a clerk—apparently saw the chance to shove the law of protest radically to the right. The court panel gave no hint that it was considering a major doctrinal change—it did not request supplemental briefing, nor even allow oral argument. But it reinstated Doe’s lawsuit, writing that “the First Amendment does not protect violence.” Mckesson was liable for Doe’s injuries because he was “negligent”—he should have known he had a duty to control the actions of every member of the crowd.
Mckesson petitioned for rehearing en banc. Instead, the panel itself (which had not “heard” argument in the first place) granted “rehearing”—meaning that it again didn’t allow Mckesson to be heard, and simply agreed with itself in a second opinion saying, in essence, “and how!”
Earlier this month, Mckesson, represented by the ACLU, asked the Supreme Court to review the case. If the Court is serious about its First Amendment jurisprudence, it should grant the petition and, in a one-line opinion, summarily reverse the Fifth Circuit. If it’s unwilling to do that, it should stay the trial below and hear the case now.
What it should not do is deny the petition and allow a civil trial against Mckesson, then review the First Amendment issue if Mckesson loses. The danger of cases like this is not simply the possibility of local juries turning their ire on unpopular defendants; it is the certainty that this type of lawsuit will impose crippling litigation costs on those defendants. Appellate vindication years later will be of little use; they will likely be bankrupt by then.
“This is one of those rare cases where it’s absolutely vital that the Supreme Court hear the case at this stage on a motion to dismiss,” Ben Wizner, the director of the ACLU’s Speech, Privacy, and Technology Project and a co-author of the petition, told me. “If the Court refuses review and allows the Fifth Circuit ruling to stand, the harm to First Amendment interests will be complete.” Such a decision would “invite similar vexatious lawsuits against movement leaders of all political stripes. It essentially allows anyone to bankrupt any movement with which they disagree.”
It’s clear that much of the right thinks that, while the First Amendment may be all very well for millionaires who want to give endless political-campaign contributions, agitators like Mckesson are over the line when they question the authority of police. In October, Fifth Circuit Judge James Ho, probably the most flamboyantly extreme of the Trump appointees to that court, called for a halt to lawsuits against violent police. “If we want to stop mass shootings,” he wrote, “we should stop punishing police officers who put their lives on the line to prevent them.”
Attorney General Bill Barr joined that chorus last week. The American people, he told a Justice Department awards ceremony, “have to start showing, more than they do, the respect and support that law enforcement deserves.” He warned that “if communities don’t give that support and respect, they might find themselves without the police protection they need.”
This reverence for police power is now gnawing a hole in the fabric of the First Amendment. If the Supreme Court doesn’t halt the drift, we may soon see a special First Amendment exception for anti-police protest.
Chief Justice Roberts: In 2014, you defended the First Amendment right of the millionaire Shaun McCutcheon to give contributions to as many politicians as he wishes. “If the First Amendment protects flag burning, funeral protests, and Nazi parades—despite the profound offense such spectacles cause, it surely protects political campaign speech despite popular opposition,” you wrote. You explained so smoothly how the First Amendment protects the Shaun McCutcheons of the world from their foes. Does it still have room to shelter the DeRay Mckessons as well?
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