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.)