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.
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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.”