Source: CNN
If you organize a protest and a participant, counter-protester or random yahoo shows up and commits an act of violence, can you be legally on the hook? In Texas, Louisiana and Mississippi the answer right now is yes – and the US Supreme Court just let that terrible ruling stand.
On Monday, the court declined to hear Mckesson v. Doe, a case in which Black Lives Matter organizer DeRay Mckesson was sued after someone at a protest he organized in Baton Rouge, Louisiana – importantly, not Mckesson himself – threw a rock at a police officer, seriously injuring the officer in the face.
That assault was horrible, tragic and criminal. But it’s not the actual perpetrator — who remains unidentified — who was held accountable. It was Mckesson. That’s who the anonymous Officer Doe sued under the theory that Mckesson knew or should have known that violence at the protests would occur, and should therefore be held liable for his negligence.
The Fifth Circuit, in part, agreed: Mckesson or any other protest organizer, they ruled, could be held liable under a negligence theory for the actions of third parties at their protests, even if those third parties did not act at their direction and even if they had no intention of fomenting violence. Mckesson, the Fifth Circuit ruled, can be held liable even though he did not intend for violence to occur, did not instigate or promote violence and by no account behaved violently himself.
The Fifth Circuit’s ruling has tremendous First Amendment implications. After all, Americans have a constitutionally protected right to protest. But that right becomes pretty meaningless if anyone who organizes a protest can be sued into financial ruin for the bad behavior of anyone else who might show up. As Ian Milhiser pointed out in Vox, “under the Fifth Circuit’s rule, a Ku Klux Klansman could sabotage the Black Lives Matter movement simply by showing up at its protests and throwing stones.”
Commenting on the court’s refusal to hear the case, Justice Sonia Sotomayor noted that the court had already weighed in on the first Amendment question in a recent decision, Counterman v. Colorado, which was issued less than two weeks after the Fifth Circuit decided Mckesson. Sotomayor wrote: “In Counterman, the Court made clear that the First Amendment bars the use of ‘an objective standard’ like negligence for punishing speech.” She included a quote from Counterman, brackets hers: “the First Amendment precludes punishment [for incitement], whether civil or criminal, unless the speaker’s words were ‘intended’ (not just likely) to produce imminent disorder.” Using a negligence standard for liability, she wrote, “would violate the First Amendment.”
The Fifth Circuit used a negligence standard to allow Mckesson to be held liable for the actions of another protester. Sotomayor seems to be clearly saying this was incorrect. “Because this Court may deny certiorari for many reasons, including that the law is not in need of further clarification, its denial today expresses no view about the merits of Mckesson’s claim,” her opinion states. The Fifth Circuit didn’t have the Counterman decision to rely on when it issued its ruling in Mckesson; now that Counterman is out in the world, Sotomayor wrote, she expects lower courts “to give full and fair consideration to arguments regarding Counterman’s impact in any future proceedings in this case.”
In other words, the Fifth Circuit’s Mckesson decision is wrong. A lower court hearing the Mckesson case could and should choose to appropriately apply the law. The Fifth Circuit could eventually get on board. But the Supreme Court declined to actually overturn the Fifth Circuit’s decision — which means that people in Texas, Louisiana and Mississippi are, for now, still bound by it.
That is very bad news for any activist, or frankly anyone who wants their voices heard in a public forum. The Fifth Circuit Court of Appeals has long been hostile to the Black Lives Matter movement, and Mckesson specifically. Some conservatives may be cheering at this moment of perceived comeuppance. But those same people should ask if they want their movement leaders held responsible if, say, violence breaks out at an anti-abortion march or a pro-Trump “stop the steal” rally. After all, both of these movements have been rife with violence for years. Does that make anyone who organizes a protest in their name potentially negligent for any harm any attendee causes?
Freedom of speech, expression and assembly is a foundational value in the United States, a protection so crucial it is enshrined in the first of the constitutional amendments. Those of us who want those rights protected must stand by them, regardless of content – that is, whether or not we support the Black Lives Matter movement (for the record, I do) or the MAGA or anti-abortion movements (for the record, I do not). Allowing leaders to be sued if a single bad actor acts badly at a protest imposes far too high a potential cost on organizers; it functionally shuts down speech and, as the Supreme Court has held, is constitutionally impermissible.
But it’s also currently the law of the land in three American states. And every American, regardless of ideology, should be up in arms and demand that change: People in Texas, Louisiana and Mississippi have as much a right to protest as all the rest of us.