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Republican judges are waging a bizarre war against the First Amendment right to protest

Doe v. Mckesson is a simply astonishing attack on the First Amendment.

The 2020 iHeartRadio Podcast Awards – Show
Civil rights activist DeRay Mckesson accepts the Best Political Podcast award for Pod Save The People at the 2020 iHeartRadio Podcast Awards.
Rich Fury/Getty Images for iHeartMedia
Ian Millhiser is a senior correspondent at Vox, where he focuses on the Supreme Court, the Constitution, and the decline of liberal democracy in the United States. He received a JD from Duke University and is the author of two books on the Supreme Court.

Last week, a deeply chilling case concerning Americans’ First Amendment right to organize protests gained new life. A three-year-old, clearly erroneous decision threatens to bankrupt protest organizers across the political spectrum. But multiple courts keep passing the case among themselves like a hot potato, rather than correcting an obvious error.

At the center of this years-long saga is a conservative federal appeals court’s 2019 decision in Doe v. Mckesson. If it is allowed to stand — or worse, if it is embraced by the Supreme Court — it could potentially chill all public protest in the United States by subjecting the organizers of protests to crippling liability.

That 2019 decision, moreover, is merely the most alarming chapter in a case involving a tragically injured police officer, a prominent civil rights activist, a Trump judge who publicly recanted his own effort to restrict First Amendment rights, and at least four different courts — including the Supreme Court of the United States.

The most recent development is a March decision by the Louisiana Supreme Court that effectively breathes life back into the Mckesson litigation after a US Supreme Court decision gave the state supreme court an opportunity to shut it down. The likely result of that Louisiana decision is months or even years more of litigation — all of which could end in a crippling blow to all political protest in the United States.

The facts of Mckesson are straightforward. DeRay Mckesson is a prominent civil rights activist and a leader in the Black Lives Matter movement. In 2016, he helped lead a protest near the Baton Rouge Police Department building in response to the fatal police shooting of Alton Sterling.

During that protest, an unknown assailant — who is not DeRay Mckesson — threw a piece of concrete or similar object at a police officer, who is identified in legal documents by the pseudonym “Officer John Doe.” Tragically, Doe appears to have been very seriously injured by this assault. According to the Louisiana Supreme Court, the officer was struck in the face, and experienced “injuries to his teeth, jaw, brain, and head, along with other compensable losses.”

But given that the assailant is still unknown, there is no one to pay those “compensable” damages.

Which brings us to the Fifth Circuit’s decision in this case. The conservative court held that Mckesson may be sued as the organizer of the protest. This decision isn’t just wrong, it is obviously wrong and there is a Supreme Court case that explicitly protects protest leaders from these sorts of lawsuits.

The Court held in NAACP v. Claiborne Hardware (1982) that, barring unusual circumstances that are not in play here, “civil liability may not be imposed merely because an individual belonged to a group, some members of which committed acts of violence.” When a group of people gather together in protest, each individual member of the group is responsible for their own actions. But the First Amendment neither permits the group as a whole, or the group’s leaders, to be held liable for one individual’s illegal behavior, unless the group or leader directly incited the illegal acts.

The reason why should be obvious. If protest leaders can be hauled into court — and potentially forced to pay out of their own pockets — for the actions of a single protest attendee, then no sensible person will organize a protest. The personal financial risk is simply too great. And thus the First Amendment right to protest with wither away.

The Fifth Circuit’s decision is dead wrong

Most likely because the person who is actually legally responsible for Doe’s injuries remains unidentified, Doe’s lawyers appear to be casting about for a defendant — any defendant — who could be sued to compensate Doe.

Their original complaint named Mckesson and “Black Lives Matter” as defendants. To be clear, it did not name any particular organization whose name includes the words “Black Lives Matter,” but instead appeared to target the entire Black Lives Matter movement as a whole — which is a bit like if someone injured at the January 6 attack on the Capitol had sued “Make America Great Again.”

Then, at a later stage in the litigation, Doe’s lawyers tried to add a Twitter hashtag, #Blacklivesmatter, as an additional defendant.

With respect to Mckesson, the facts of Claiborne are, in many material respects, identical to the facts of this case. And the Claiborne decision precludes holding Mckesson liable for the actions of an unknown person who attended the Baton Rouge protest.

Claiborne involved a boycott of white businesses led by a Mississippi chapter of the NAACP. During the course of this boycott, according to the Mississippi Supreme Court, some individuals “engaged in acts of physical force and violence against the persons and property of certain customers and prospective customers” of these white businesses.

But the Supreme Court rejected the argument that either the NAACP or specific NAACP leaders who helped organize this boycott could be held liable for the violent actions of people who participated in the boycott.

Claiborne did lay out three circumstances when leaders of a protest may be held responsible for the actions of individual protesters. One is if a protest leader’s “public speeches were likely to incite lawless action,” but Doe’s lawyers do not point to any statements by Mckesson that incited anyone to throw rocks at cops. Similarly, Mckesson could be liable if he gave someone “specific instructions to carry out violent acts or threats,” but Doe does not point to any such instructions from Mckesson.

Mckesson could also be held liable for the rock-thrower’s actions if he “authorized, directed, or ratified” this illegal act. But the Fifth Circuit admitted in its opinion that Doe “has not pled facts that would allow a jury to conclude that Mckesson colluded with the unknown assailant to attack Doe, knew of the attack and ratified it, or agreed with other named persons that attacking the police was one of the goals of the demonstration.”

In short, had the Fifth Circuit followed the Supreme Court’s binding precedent in Claiborne, it would have dismissed the case against Mckesson.

Instead, the court invented a new exception to the First Amendment. To sue Mckesson, Judge E. Grady Jolly wrote, Doe was merely required to “plausibly allege that his injuries were one of the ‘consequences’ of ‘tortious activity,’ which itself was ‘authorized, directed, or ratified’ by Mckesson in violation of his duty of care.” That is, if Mckesson led protesters to commit any illegal act, he risks being stripped of his First Amendment rights and held liable for subsequent illegal activity that results.

In this case, Doe claims that Mckesson “directed the demonstrators to engage in the criminal act of occupying the public highway.” And that was enough, according to the Fifth Circuit, to strip Mckesson of his constitutional rights.

Occupying public streets is, of course, a common protest tactic used by many celebrated political movements — including the civil rights marches of the 1950s and 1960s.

A line of policemen on duty during a Black voting rights march in Montgomery, Alabama, in March 1965. Martin Luther King Jr. led the march from Selma, Alabama, to the state capital in Montgomery.
William Lovelace/Express/Getty Images

The Fifth Circuit’s opinion, moreover, is so broadly worded that it could potentially strip any leader of any major protest of their First Amendment rights.

Recall that, under the Fifth Circuit’s opinion, a protest leader is potentially stripped of their constitutional rights if they authorize, direct, or ratify any illegal activity by protesters. This could be illegal activity central to an act of civil disobedience — say, protesters who oppose mask mandates enter a government building maskless, in defiance of a local ordinance — or it could potentially be something only tangentially related. A protest leader could potentially lose their First Amendment rights if they advise a bus carrying protesters to drive slightly above the speed limit in order to make it to the protest on time. Or if they advise a protester to park their car in a no-parking zone.

Indeed, under the traditional common law rule, someone who sets foot on another person’s land without their permission has typically committed the tort of trespass. So a protest leader could potentially lose their First Amendment rights if they encourage protesters to walk in a wide formation where a few of them occasionally spill over from the streets onto private property.

To be clear, a protest leader is still responsible for their own actions. Someone who defies a mask mandate could potentially be prosecuted for refusing to wear a mask, for example. But, under Claiborne, a protest organizer’s decision to violate one law does not normally permit them to be held liable for someone else’s decision to violate a completely different law.

The courts keep treating this case like a hot potato that needs to be passed to someone else

After the Fifth Circuit’s 2019 decision, at least three different courts have had the opportunity to correct this error and restore Mckesson’s constitutional rights. But most of the judges who’ve touched this case refuse to take responsibility for it.

One notable exception is Judge Don Willett, a Trump-appointed judge on the Fifth Circuit, who initially joined Jolly’s opinion inventing a new limit on the First Amendment. Months after the Fifth Circuit’s original decision in Mckesson, Willett published a rare and belated dissent admitting that his initial vote in this case was wrong.

“I disagree with the suggestion that directing any tort would strip a protest organizer of First Amendment protection,” Willett wrote in his new dissent. He added that, had the Fifth Circuit’s rule been in effect in the 1960s, one of its victims would have been Martin Luther King, Jr.

Dr. King’s last protest march was in March 1968, in support of striking Memphis sanitation workers. ... Dr. King’s hallmark was nonviolent protest, but as he led marchers down Beale Street, some young men began breaking storefront windows. The police moved in, and violence erupted, harming peaceful demonstrators and youthful looters alike. Had Dr. King been sued, either by injured police or injured protestors, I cannot fathom that the Constitution he praised as “magnificent” — “a promissory note to which every American was to fall heir” — would countenance his personal liability.

But neither Jolly nor the third judge on the panel, Judge Jennifer Elrod, joined Willett in acknowledging their error. Instead, they issued a longer opinion explaining why they would still strip Mckesson of his First Amendment rights.

Mckesson’s lawyers asked the full Fifth Circuit to hear the case, and effectively toss out Jolly’s decision — using a process known as “en banc rehearing. But a majority of the court’s active judges must agree to take a case en banc, and the court split 8-8 on whether to do so.

The case then made its way to the Supreme Court, which did hand down a brief decision vacating Jolly’s opinion. But rather than putting the case to bed for good, the Supreme Court merely ordered the Fifth Circuit to seek the Louisiana Supreme Court’s input on whether Louisiana law permits a suit against Mckesson. The Supreme Court avoided the question of whether Mckesson is protected by the First Amendment altogether.

In late March, Louisiana's justices finally weighed in, with all but one of them concluding that state law does permit the suit against Mckesson to move forward. Justice Piper Griffin, the only Democrat on Louisiana’s highest court, dissented, writing that the majority’s decision “will have a chilling effect on political protests in general as nothing prevents a bad actor from attending an otherwise peaceful protest and committing acts of violence.”

And so, because no court wants to take responsibility for correcting Jolly’s error, Mckesson’s rights remain trapped in limbo. He and his lawyers can look forward to more months or even years of litigation before this case is resolved.

This long, torturous process is unfair to Mckesson. It is unfair to Doe, who deserves to know that his lawsuit cannot prevail under the Constitution. And it is unfair to anyone who exercises their constitutional right to protest.