Federal appeals court ruling endangers First Amendment

December 19, 2019 • 10:00 am

A new article in The Atlantic by Garrett Epps, writer and legal scholar (he teaches law at the University of Baltimore), describes what both he and I see as a very legal serious challenge to the First Amendment’s free speech provision. Click on the screenshot to read about it.

I can state the facts in brief in the case of Mckesson v. Doe. On July 9, 2016, there was a Black Lives Matter demonstration in front of the Baton Rouge, Louisiana police station.  A police officer, who has chosen to be an anonymous “John Doe”, was injured, and is suing the demonstration’s leader as well as Black Lives Matter. The description below is from the decision of three members of the Fifth Circuit Court (a conservative appeals court whose bailiwick includes Mississippi, Louisiana, and Texas):

Officer Doe was one of the officers ordered to make arrests. DeRay Mckesson, associated with Black Lives Matter, was the prime leader and an organizer of the protest. In the presence of Mckesson, some protesters began throwing objects at the police officers. Specifically, protestors began to throw full water bottles, which had been stolen from a nearby convenience store. The dismissed complaint further alleges that Mckesson did nothing to prevent the violence or to calm the crowd, and, indeed, alleges that Mckesson “incited the violence on behalf of [Black Lives Matter].” The complaint specifically alleges that Mckesson led the protestors to block the public highway. The police officers began making arrests of those blocking the highway and participating in the violence. The complaint specifically alleges that Mckesson led the protestors to block the public highway. The police officers began making arrests of those blocking the highway and participating in the violence.

At some point, an unidentified individual picked up a piece of concrete or a similar rock-like object and threw it at the officers making arrests. The object struck Officer Doe’s face. Officer Doe was knocked to the ground and incapacitated. Officer Doe’s injuries included loss of teeth, a jaw injury, a brain injury, a head injury, lost wages, “and other compensable losses.”

Following the Baton Rouge protest, Officer Doe brought suit, naming Mckesson and Black Lives Matter as defendants. According to his complaint, the defendants are liable on theories of negligence, respondeat superior, and civil conspiracy. Mckesson subsequently filed two motions: (1) a Rule 12(b)(6) motion, asserting that Officer Doe failed to state a plausible claim for relief against Mckesson and (2) a Rule 9(a)(2) motion, asserting that Black Lives Matter is not an entity with the capacity to be sued.

What is happening is that the leader of the demonstration is being sued for violence inflicted by a participant in the demonstration, although Mckesson apparently did not directly (or indirectly) incite imminent violence. As Epps writes, the courts have, over time, settled on a definition of Free Speech that takes into account  resulting violence. And that definition is this: someone has violated the First Amendment if their speech that causes violence meets three criteria: the speaker intended to incite violence, the violence incited was imminent, and that violence was also likely. None of these criteria appear to have been met in the incident in Baton Rouge.

Nevertheless, a 3-judge panel of the Fifth Circuit (there are 17 judges in total) unanimously ruled that the suit against Mckesson can go forward, saying that “the First Amendment does not protect violence,” an ambiguous statement if ever there was one. The defendants’ request for the full court to hear the case (“en banc”) was rejected.

There’s one twist here: after the decision, one of the judges, Don R. Willett (a Trump appointee and formerly a member of the Texas Supreme Court), changed his mind—and publicly. From Epps’s article:

The latter course just got harder. Willett, a Trump appointee and former Texas Supreme Court justice, has now changed his vote and issued a full-throated defense of the idea that free speech covers even unruly protest.

“I have had a judicial change of heart,” Willett wrote. “Admittedly, judges aren’t naturals at backtracking or about-facing. But I do so forthrightly. Consistency is a cardinal judicial virtue, but not the only virtue. In my judgment, earnest rethinking should underscore, rather than undermine, faith in the judicial process. As Justice Frankfurter elegantly put it 70 years ago, ‘Wisdom too often never comes, and so one ought not to reject it merely because it comes late.’”

The words are true, and the practice of judicial self-examination is, while not unheard-of, regrettably rare. In this case, reexamination led Willett to see two gaping holes in the majority’s case. First, he pointed out, despite the panel’s earlier decision, it’s not clear that even Louisiana tort law would support a lawsuit against Mckesson. To reach that conclusion, the panel had to, in essence, make new Louisiana state law. Every second-year law student knows that is a practice courts of appeals are supposed to avoid—especially when doing so creates a federal constitutional issue.

Willett further wrote that, having insisted on reaching the free-speech issue, the panel botched that as well. Doe’s complaint alleged that Mckesson “incited” the violence that led to Doe’s injuries. But Doe’s lawyer didn’t even bother to explain how. As Willett put it:

Not one of the three elements of “incitement”—intent, imminence, likelihood—is competently pleaded here. . .

That’s a brave admission from a judge, and I like his quote from Felix Frankfurter. Still, this only makes the decision 2-1, so the ruling still stands. And unless that ruling is overturned by the U.S. Supreme Court (which is deciding now whether to take it), there will be a damaging precedent that could chill free speech. If a speaker or a leader of a demonstration can be held responsible for violence inflicted by a demonstrator, even if that violence is not really incited, you can imagine the chilling effect this would have on any passionate demonstrations, or people’s willingness to lead them.  It’s for this reason that I thought the case would surely be taken up by the Supreme Court (they have until January 9 to make that decision), for to let the Fifth Circuit ruling stand would seriously weaken both freedom of speech and also completely change how the courts judge “imminent violence” as a violation of the First Amendment.

I called Andrew Seidel, constitutional attorney at the Freedom From Religion Foundation (and author of the excellent book The Founding Myth: Why Christian Nationalism Is Un-American), who told me that the Supremes’ accepting such a case would normally be a no-brainer, but in today’s judicial climate it’s not at all clear that the Supreme Court will take it. If they reject it, moreover, they don’t have to give a reason: all we get to know is “case accepted” or “case rejected.” And if they reject it, this could mean that there would be at least two standing appeals court rulings that conflict with each other.  I’m not sure, then, how future cases of this kind will be litigated. Stay tuned, and I’ll report back in January.

(If you want to see all the judicial decisions in this case, go here and enter “Mckesson” in one of the search boxes.)

21 thoughts on “Federal appeals court ruling endangers First Amendment

  1. I have a hard time understanding how John Doe, the injured policeman sues for his injuries in this way. Maybe he can sue the specific person who injured him, even if it is a civil suit. I would guess John Doe’s medical expenses and off work time would be covered by the city’s insurance and should not cost him anything.

    1. IANAL but AIUI…

      …If you and I are together in a place, and I point to someone next to us and say “Go hit him. Now. Do it. DO IT!”, and you do, then my speech is generally not protected on 1st amendment grounds and I may be partially liable for your assault on that person. Because I incited you to that violent act.

      IF McKesson had done something similar with his followers, then Police DOE would have a reasonable case against him (McKesson). However it sounds from the facts of the case like McKesson didn’t say anything directly inciteful. He just didn’t talk his followers down or urge restraint. Now, that creates a potential ethical question, but legally (and again, IANAL but AIUI), he doesn’t have to do that.

      1. On the first amendment issue, how does McKesson know one of the people in the group is going to throw rocks or pieces of cement? Certainly they are committing an illegal act blocking a public road, which will cause the police to take action. On that we can agree. But does that make McKesson accountable for the injury to the policeman.

        But my other point was, how does a policeman sue others for his injuries. For that matter do persons who shoot and kill police officers get sued? They hopefully go to prison for a really long time but sued?

        1. You’re right on the fact that, legally, Officer Doe shouldn’t be able to sue because he’s a policeman. Supervising protests, which can get out of hand, is part of the job. It’s surprising this was never brought up.

          On your first point, though, of course McKesson can’t know someone is going to throw a cement brick, the question is whether it is *reasonably foreseeable* after he has directed his fellow protestors to commit other crimes and has watched them as this already illegal protest got out of hand and he did nothing to tamp down the rock/brick throwing, just continued to direct the highway occupation. The First Amendment doesn’t come into play in this kind of negligence analysis: once you’ve affirmatively directed one crime that actually occurs, you have significantly weakened your ability to claim First Amendment protections from suit or prosecution for other crimes that you didn’t specifically order. The issue is foreseeability from one crime to the next, which is a very fact-intensive analysis, and reading the opinion it seems like this protest occurred over several hours: a lot could happen from the initial lawless act of occupation and the concrete in Officer Doe’s head that would factor into forseeability and what duty McKesson owed to people observing or bystanding during the protest he was leading.

          I tend to share Judge Willett’s analysis, that, as a matter of law (not fact), the connection between the two crimes should in most cases (but not all) be too tenuous and does raise First Amendment concerns to allow this kind of case to go forward: the initial crime is malum prohibitum, the subsidiary is malum in se. But I can also see the argument the other way (not having been present at this protest) that the facts of the case may be more complicated than simply “highway occupation===>>>straight to rock throwing”, that McKesson ordered one crime and then not only stood by, but continued to organize and direct the occupation as his co-protestors started throwing dangerous objects. In that case, he might owe bystanders a duty.

            1. Does the IRS declare “imputed income” when one receives in excess of a certain minimum substantial amount of pro bono legal services?

          1. “Supervising protests, which can get out of hand, is part of the job.”

            That is a real carrot to prompt one to enter the field.

    2. I would guess John Doe’s medical expenses and off work time would be covered by the city’s insurance and should not cost him anything.

      Is that a safe guess, these days?

  2. If a speaker or a leader of a demonstration can be held responsible for violence inflicted by a demonstrator, even if that violence is not really incited, you can imagine the chilling effect this would have on any passionate demonstrations, or people’s willingness to lead them.

    It would be interesting to see if SCOTUS, or McKesson’s lawyers, or any third party filing an opinion, bring up Trump’s behavior at his rallies. Being the leader of an unruly rally in which violence is done to protestors seems extremely applicable. And Trump’s recorded statements at those rallies probably toe a lot closer to the incitement line than McKesson’s.

    I would think that has to be on the minds of the conservative SCOTUS judges. Letting political rally leaders be criminally liable for violence done in response to their (non-inciting) rhetoric probably isn’t an outcome the right side of the political spectrum wants at the moment.

  3. Even if the suit goes forward – which seems to be all that’s on the table – surely it would still be incumbent upon the plaintiff to prove by a preponderance of the evidence that Mckesson and/or Black Lives Matter had actually done something that went beyond constitutionally protected free speech…e.g. had literally incited the violence in the case of throwing the concrete. That seems unlikely at best, based on what’s written here, and even if the suit were successful for the plaintiff (given the vicissitudes of the minds of jurors) it could still be appealed on constitutional grounds. At least that’s the way it strikes me, but I’m no expert.

    1. “had actually done something that went beyond constitutionally protected free speech”

      I brought this up in my overly long post below, but McKesson and his fellow protestors had in fact done this: occupying and blocking the highway is a crime under Louisiana law. You could argue that this is in and of itself a Free Speech/Assembly violation, but that’s a separate argument, and the Supreme Court (nor any appeals court that I know of) has ruled that occupying a space that is illegal to occupy (a highway or private property) is ok if it is done as a protest.

  4. The case does raise First Amendment concerns, and I am inclined to agree more with Judge Willett; I am glad he changed his vote to offer an alternative perspective, so that the case isn’t unanimous. However, taking the Officer Doe’s pleadings as factually true (required on a motion to dismiss), this passage from the majority’s opinion struck me:

    “In this context, we find that Officer Doe has plausibly alleged
    that Mckesson breached his duty of reasonable care in the course of organizing
    and leading the Baton Rouge demonstration. The complaint alleges that
    Mckesson planned to block a public highway as part of the protest. And the
    complaint specifically alleges that Mckesson was in charge of the protests and
    was seen and heard giving orders throughout the day and night of the protests.
    Blocking a public highway is a criminal act under Louisiana law. See La. Rev.
    Stat. Ann. § 14:97. Indeed, the complaint alleges that Mckesson himself was
    arrested during the demonstration. It was patently foreseeable that the Baton
    Rouge police would be required to respond to the demonstration by clearing
    the highway and, when necessary, making arrests. Given the intentional
    lawlessness of this aspect of the demonstration, Mckesson should have known
    that leading the demonstrators onto a busy highway was likely to provoke a
    confrontation between police and the mass of demonstrators, yet he ignored
    the foreseeable danger to officers, bystanders, and demonstrators, and
    notwithstanding, did so anyway.”

    Under the Brandenburg test, and all the relevant caselaw we have, McKesson was actively inciting imminent illegal activity, namely the occupation of the highway. Directing illegal activity isn’t First Amendment protected just because it’s speech, and this is different than simply *advocating* illegal activity at some hypothetical time: “if we don’t get our way, we will burn this town to the ground” at a protest is very different than standing in front of the town hall with a torch mob and saying “let’s burn this place to the ground” and then immediately proceeding to go in and do just that. If non-arson crimes were committed during the burning, such as theft or assault, the First Amendment likely wouldn’t protect the mob-leader from a riot prosecution nor a civil suit for negligence. That said, burning the town hall down is different than occupying a highway in regards to your fellow protestors being violent: it hinges on foreseeability, a question (for the most part) of fact, which is why the district court and then the appellate majority allowed the suit to go forward.

    But this case doesn’t stand for the proposition that protest leaders are civilly liable for other protestors becoming violent; Professor Epps’ reading isn’t the right one (he has been getting lazy lately in his articles for The Atlantic), but Judge Willett’s reading is more accurate by emphasizing the foreseeability of “violence” and the duty to protect, because it’s violence that caused Officer Doe’s injuries. Brandenburg doesn’t mention “violence”, though, it mentions “illegal action”, which McKesson did in fact advocate for imminently. The split between Willett and the majority is whether McKesson’s direction of the highway occupation, which he could be sued/prosecuted for under Brandenburg (his speech meets all three prongs of the test) is sufficient grounds to hold him responsible for *other crimes* committed by his fellow protestors, ones he didn’t specifically order them to do. “I’m protesting” isn’t a free pass under First Amendment law to direct people to commit crimes and then disclaim all responsibility when some people go a bit further in their crimes than you’d imagined or planned. I don’t think it would be controversial to sue/prosecute a right-wing protest leader who, to display their anger at abortion, directs his throng of protestors to vandalize a Planned Parenthood doctor’s house with paint, tearing up the lawn, ripping up the siding, but then also sue/prosecute him when one of the protestors throws a brick through a window and concusses an occupant inside. Again, the issue is the foreseeability between the crime actually ordered by the protest leader and the other, potentially crime committed by a co-protestor.

    However, as usual, Professor Eugene Volokh has a great way to resolve this case that sidesteps the First Amendment issue and gets McKesson off the hook: the so-called “fireman’s rule”, that firefighters, police officers, and other rescuers can’t sue people if they are injured in the performance of their work duties. In fact, Louisiana has codified such a rule statutorily. If a protestor had injured a non-cop, though, just someone stuck in traffic as the protest blocked the highway, this rule wouldn’t apply.

  5. Bravo to Judge Willett for having the gumption to publicly change his mind in an effort to get the law right.

    Consistency is generally a virtue in trial court judges, who are regularly called upon to alone make instantaneous decisions in the middle of a trial or hearing. For them, it’s sometimes more important to be clear and consistent than to be legally correct. Any sign of inconsistency can leave the litigants at sea as to what the next ruling will be, and can lead the parties endlessly to seek to revisit earlier rulings, especially in the course of lengthy litigation.

    Such consistency is much less a virtue, and often a vice, in appellate court judges, who review issues of law from a cold record at a more leisurely pace.

    Also, FWIW, the 2-1 panel decision in McKesson is binding precedent only for the nine federal district courts located in the three states over which the Fifth Circuit Court of Appeals presides. District courts in the other 11 regional federal judicial circuits are free to ignore it (and, indeed, may be required to do so owing to contrary binding appellate precedent in their own circuits).

  6. Here is another “free speech” question and it concerned the recent Clint Eastwood movie about the Atlanta bomber, way back during the Olympics. Eastwood took many Hollywood advantages in this movie that did not follow the facts. Overall, making it look like a hatchet job on the guy by the media and the FBI. Looking more like a Trump movie than it should have been. But the most outrageous thing was indicating a specific reporter, by name, got the story from an FBI agent by offering sex. This did not happen. It was not true. Now why, if you are going to make stuff up, would you use a real name to do it. That is not only stupid, it is really low.

    1. This has periodically come up in biopics, films, TV series, and books based on real events, and the like, where people don’t like how they are portrayed and threaten to sue for defamation; the lawsuits never go anywhere and are dismissed immediately. Generally speaking, so long as the filmmaker doesn’t specifically state that everything shown in the movie is literally true, there is no viable defamation claim even when factually incorrect events or actions are portrayed involving a “real person”. Remember that the portrayal of a real person in a film, book, or other form of media is still a fictional character, it isn’t literally that person, even when it is a dramatization of actual events like you see on true crime shows: the “dramatization” is a fiction. This is frequently done to make some characters more evil/good/interesting: just recently Vice portrayed Dick Cheney as cartoonishly villainous using dialogue that he did not literally say, but that’s part of the character and the process of filmmaking. It would have been a bad movie, probably impossible to make, if the film team had had to verify every single line or action that portrayed Cheney in a bad light as something he had actually said or done.

    2. The Atlanta-Journal Constitution reporter — Kathy Scruggs — is also DEAD. As disco. As Dillinger. As the dinosaurs. As the budgie from the Monty Python skit. So isn’t available to pursue a defamation lawsuit.

      Were she still among the quick, however, she might take solace knowing she’s portrayed in the movie by the comely Ms. Olivia Wilde.

  7. The danger in making leaders responsible for the actions of individuals except in the clearest of incitements is that it is a gift for agent provocateurs who turn a peaceful protest into a a violent one.

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