For more than four years, a rogue federal appeals court has given life to a highly dubious lawsuit targeting DeRay Mckesson, a prominent figure within the Black Lives Matter movement. The United States Court of Appeals for the Fifth Circuit’s decisions would not only strip Mckesson of his First Amendment-protected right to organize mass protests against police violence, it threatens all Americans’ ability to organize any protest.
On Friday, the Fifth Circuit handed down its latest decision in Doe v. Mckesson, the case at the heart of this crusade against the First Amendment. Under the Fifth Circuit’s latest approach, a protest organizer who commits even a minor legal violation — in this case the court faulted Mckesson for leading a protest “in front of the Baton Rouge police station” and for attempting “to block a public highway” — may potentially be held liable for the illegal actions of someone else who attended the protest.
In 2016, Mckesson helped organize and lead a protest near the Baton Rogue Police Department building, following the fatal police shooting of Alton Sterling. During that protest, an unknown individual threw a rock or similar object at the plaintiff in the Mckesson case, a police officer identified in court documents by the pseudonym “Officer John Doe.” Sadly, the officer was struck in the face and, according to one court, experienced “injuries to his teeth, jaw, brain, and head, along with other compensable losses.”
There is no question that whoever threw this object should be held liable for their illegal action. But even Judge Jennifer Elrod, the author of the latest Mckesson opinion, admits that “it is clear that Mckesson did not throw the heavy object that injured Doe.” That should be the end of this case, as the First Amendment provides robust safeguards against holding protest leaders responsible for the actions of a single rogue protester.
Instead, Elrod devises a tortured legal theory that effectively allows Doe to sue Mckesson for the actions of the unknown assailant. In doing so, Elrod rather flagrantly disobeys at least two landmark Supreme Court decisions.
Elrod’s opinion explicitly defies the Supreme Court’s decision in NAACP v. Claiborne Hardware (1982), which held that, barring unusual circumstances that are not present in the Mckesson case, “civil liability may not be imposed merely because an individual belonged to a group, some members of which committed acts of violence.” Additionally, her opinion cannot be squared with Brandenburg v. Ohio (1969), which placed strict limits on the law’s power to sanction anyone whose speech might encourage others to engage in illegal activity.
The stakes in this case, which has already been heard once by the Supreme Court and will most likely need to be heard by them again if the right to protest is to remain viable, are simply enormous. If protest organizers can be sanctioned for illegal actions by protest attendees, then no one in their right mind will agree to organize a protest.
Indeed, as Judge Don Willett points out in dissent, under Elrod’s decision, a protest leader could potentially be forced to pay for “the unlawful acts of counter-protesters and agitators” who are actively opposed to the protest leader’s cause. If Elrod is right about the First Amendment, then a white supremacist who wishes to cripple the Black Lives Matter movement needs only show up at one of their protests and start throwing stones.
And this case is particularly important because it concerns the right to protest the police — individuals who are authorized by the government to commit violence on behalf of the state. If the right to protest means anything, it must include the right to demonstrate against government officials who wield such awesome power against ordinary citizens, including protesters themselves.
The three words that must always be protected, if free speech is to survive, are “fuck the police.”
The First Amendment rights of protest leaders, briefly explained
The question of whether protest organizers and political leaders may be held liable for the actions of fellow protesters is not new, and the Supreme Court has been quite clear that the First Amendment provides robust protection to such organizers and leaders. Indeed, the Court’s decision in Claiborne involves facts that are strikingly similar to the ones alleged by Officer Doe.
Claiborne concerned a boycott of white businesses led by a Mississippi chapter of the NAACP. At least according to the Mississippi Supreme Court, some individuals participating in this boycott “engaged in acts of physical force and violence against the persons and property of certain customers and prospective customers” of these white businesses.
Indeed, the leaders of this boycott did far more to encourage violence than Mckesson is now accused of doing. Charles Evers, a prominent figure within the NAACP, gave a series of speeches supporting the boycott, and he allegedly said in one of these speeches that “if we catch any of you going in any of them racist stores, we’re gonna break your damn neck.”
Nevertheless, the Supreme Court held in Claiborne that this “emotionally charged rhetoric ... did not transcend the bounds of protected speech.”
More broadly, Claiborne emphasized that courts must exercise “extreme care” before imposing liability on a political figure of any kind. In rare cases, a protest leader may be held liable for someone else’s violent actions, but one of three circumstances must exist:
There are three separate theories that might justify holding Evers liable for the unlawful conduct of others. First, a finding that he authorized, directed, or ratified specific tortious activity would justify holding him responsible for the consequences of that activity. Second, a finding that his public speeches were likely to incite lawless action could justify holding him liable for unlawful conduct that in fact followed within a reasonable period. Third, the speeches might be taken as evidence that Evers gave other specific instructions to carry out violent acts or threats.
None of these circumstances are present in Mckesson. There is no allegation that Mckesson directed anyone to hurl a rock at a police officer, or that he endorsed the attack on Office Doe after it occurred. Indeed, there is no allegation that Mckesson encouraged violence of any kind, or even that he engaged in the kind of “emotionally charged rhetoric” that the Supreme Court held was protected in Claiborne.
In fact, in a previous opinion in the Mckesson case, the Fifth Circuit admitted that Officer Doe “has not pled facts that would allow a jury to conclude that Mckesson colluded with the unknown assailant to attack Officer 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.”
That admission is fatal to the Fifth Circuit’s argument.
Elrod’s opinion doesn’t just violate the First Amendment, it openly defies the Supreme Court’s decision in Claiborne
Rather than obey the Claiborne decision, Elrod’s latest opinion in the Mckesson case simply pretends that Claiborne did not say what it actually said. After quoting the same paragraph that I quoted above, laying out the three limited circumstances when a protest leader may be held liable for the actions of a rank-and-file protester, Elrod writes this astonishing sentence:
Nothing in Claiborne suggests that the three theories identified above are the only proper bases for imposing tort liability on a protest leader.
That’s certainly a creative way to read a Supreme Court opinion that holds that even threats to break someone’s neck can be protected speech, which demands that courts apply “extreme care” before they sanction protest organizers, and which itemizes only three circumstances that “might justify” holding such an organizer liable for the actions of another. Elrod’s opinion cites no other court decision that reads Claiborne in such a counterintuitive way.
Having given herself the freewheeling authority to invent new exceptions to the First Amendment, Elrod then determines that the First Amendment does not apply “where a defendant creates unreasonably dangerous conditions, and where his creation of those conditions causes a plaintiff to sustain injuries.”
And what, exactly, are the “unreasonably dangerous conditions” that Mckesson allegedly created? Elrod points to allegations that Mckesson “organized the protest to begin in front of the police station, obstructing access to the building” that he did not “dissuade” a group of protesters who allegedly stole water bottles from a grocery store, and that he “led the assembled protest onto a public highway, in violation of Louisiana criminal law.”
Elrod, in other words, seems to believe that it is “unreasonably dangerous” to protest government officials near the public building where those officials work. And she also appears to believe that the First Amendment begins to ebb the minute a protest leader violates a traffic law.
Elsewhere in her opinion, Elrod also suggests that Mckesson may run afoul of Claiborne’s holding that a protest leader may be held liable if their “public speeches were likely to incite lawless action.”
But Elrod does not point to a single statement, allegedly made by Mckesson, which might have incited someone to injure Officer Doe. Nor, for that matter, does Doe. As Judge Willett points out in dissent, “the lone ‘inciteful’ speech quoted in Doe’s complaint is something Mckesson said not to a fired-up protestor but to a mic’ed-up reporter — the day after the protest: ‘The police want protestors to be too afraid to protest.’”
Needless to say, this anodyne statement does not even begin to approach the kind of incitement to lawlessness that is unprotected by the First Amendment.
The Fifth Circuit is a rogue court
The Fifth Circuit’s decision in Mckesson isn’t just wrong. It is an embarrassment. But it is also typical of the Fifth Circuit, which is dominated by Trump appointees and other judges on the far right fringe of the legal profession.
In the last few years, the Fifth Circuit declared an entire federal agency unconstitutional and stripped another of its authority to enforce federal laws protecting investors from fraud. It permitted Texas Republicans to effectively seize control of content moderation at social media sites like Twitter, Facebook, and YouTube. It seized control over much of the United States’ diplomatic relations with the nation of Mexico. It effectively tried to ban the drug mifepristone, a pill used in more than half of all US abortions, which has been legal in the United States for nearly a quarter century. And it even tried to put right-wing judges in charge of the military, handing down a decision, that, in Justice Brett Kavanaugh’s words, inserted the courts “into the Navy’s chain of command, overriding military commanders’ professional military judgments.”
Indeed, the Fifth Circuit’s decisions are so often divorced from any recognizable legal principles that it is fairly often reversed from the left by our current, very conservative Supreme Court.
Indeed, in 2020, the Supreme Court handed down a brief decision in the Mckesson case that seemed intended to quietly make this case go away. That decision, however, did not rule on whether Mckesson’s actions are protected by the First Amendment. Instead, it effectively asked the Louisiana Supreme Court to weigh in on whether Mckesson actually violated any Louisiana state laws when he organized the Baton Rogue protest — because if he did not violate any laws, then there’s no reason to determine whether the First Amendment permits him to break the law.
But the Louisiana Supreme Court did not take this opportunity to shut this lawsuit down, instead ruling that, “it could be found that Mr. Mckesson’s actions, in provoking a confrontation with Baton Rouge police officers through the commission of a crime (the blocking of a heavily traveled highway, thereby posing a hazard to public safety)” violated Louisiana law.
In any event, Mckesson is not being sued for blocking a highway. He is being sued for an unknown assailant’s attack on Officer Doe. And Claiborne could not be clearer that the First Amendment does not allow Mckesson to be held responsible for this unknown individual’s inexcusable act of violence.
It is now, in other words, up to the Supreme Court to do what it was unwilling to do in 2020. It must hear the First Amendment dispute at the heart of Mckesson. And, if the right to protest means anything, it must reverse the Fifth Circuit.