Appeals Court Revisits Its Terrible New Orleans Protest Decision, Changes Nothing About Its Rejection Of First Amendment Protections
from the where-is-the-1st-amendment? dept
Earlier this year, the Fifth Circuit Appeals Court inexplicably allowed an anonymous police officer to continue suing activist DeRay McKesson for the injuries he sustained when someone (not DeRay McKesson) threw a chunk of concrete at him during a protest in New Orleans.
Never mind the First Amendment, said the court. What about the duty of care McKesson somehow inherited when he chose to organize a protest? Since the protest deliberately broke the law by blocking traffic, the court decided McKesson was at least indirectly responsible for any violence resulting from the inevitable clash between protesters and law enforcement.
Given the intentional lawlessness of this aspect of the demonstration, Mckesson should have known that leading the demonstrators onto a busy highway was most nearly certain 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. By ignoring the foreseeable risk of violence that his actions created, Mckesson failed to exercise reasonable care in conducting his demonstration.
If a protest results in unlawful actions, the people organizing the protest bear the collective guilt of every unlawful action engaged in by other protesters. It's an authoritarian's wet dream come true, courtesy of one of the most conservative appellate courts in the land.
The Appeals Court has revisited this decision. Don't bother holding your breath. The retake [PDF] changes nothing in the majority opinion. The replacement opinion is the same opinion, restating the things the court said last time when it decided McKesson's "negligence" makes him responsible for the injuries sustained by a cop attacked by another protester.
By ignoring the foreseeable risk of violence that his actions created, Mckesson failed to exercise reasonable care in conducting his demonstration.
The table is pounded once more for emphasis:
We iterate what we have previously noted: Our ruling at this point is not to say that a finding of liability will ultimately be appropriate. At the motion to dismiss stage, however, we are simply required to decide whether Officer Doe’s claim for relief is sufficiently plausible to allow him to proceed to discovery. We find that it is.
McKesson may ultimately be cleared, but it's going to cost him even more time and money. This isn't the way this should have worked out. The only thing worth reading in this opinion is Judge Don Willett's addition. In it, Willett reverses his original position, which agreed with the majority's conclusion that the First Amendment didn't cover McKesson's actions. It opens with an apology of sorts:
I originally agreed with denying Mckesson’s First Amendment defense. But I have had a judicial change of heart. Further reflection has led me to see this case differently, as explained below. 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.”
Willett says the case should be remanded to Louisiana's Supreme Court for it to decide whether there is actually a "duty of care" present in situations like these, and if so, is it still recognized when there is no direct relationship between McKesson and the protester who assaulted the unnamed police officer? Willett points out that if there's no "duty of care," there's no case. And if there's no case, the First Amendment escapes unscathed.
The appeals court's decision, however, does do damage to free speech rights.
Even assuming that Mckesson could be sued under Louisiana law for “negligently” leading a protest at which someone became violent, the First Amendment “imposes restraints” on what (and whom) state tort law may punish. Just as there is no “hate speech” exception to the First Amendment, “negligent” speech is also constitutionally protected.
Willett says the facts of the case shouldn't allow it to proceed any further. There's no "there" there and it seems highly unlikely Officer Doe could sufficiently amend his complaint to clear this initial hurdle.
Doe strings together various unadorned contentions—that Mckesson was “present during the protest,” “did nothing to calm the crowd,” “directed” protestors to gather on the public street in front of police headquarters, and “knew or should have known . . . that violence would result” from the protest that Mckesson “staged.” Even taking these impermissibly conclusory allegations as true, the complaint lacks sufficient factual detail to state a claim for negligence, much less to overcome Mckesson’s First Amendment defense.
At best, the officer's allegations are still the worst.
Indeed, 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 following the protest: “The police want protestors to be too afraid to protest.” Tellingly, not a single word even obliquely references violence, much less advocates it. Temporally, words spoken after the protest cannot possibly have incited violence during the protest. And tacitly, the majority opinion seems to discard the suggestion that Mckesson uttered anything to incite violence against Officer Doe.
Willett notes the Supreme Court of the United States has recognized First Amendment protections for speech far more inciting than anything McKesson uttered. Bypassing this precedent in favor of vague state-level law is the wrong call, especially if the Appeals Court isn't going to let the state's highest court weigh in on the issue.
This second take is being appealed by McKesson. That's more money and time being spent to defend against a lawsuit composed mostly of boilerplate cribbed from one of Larry Klayman's more outlandish efforts. And yet the case still lives and still threatens to undermine the First Amendment. As Garrett Epps points out for The Atlantic, time is of the essence and only the nation's top court can stop the bleeding.
Earlier this month, Mckesson, represented by the ACLU, asked the Supreme Court to review the case. If the Court is serious about its First Amendment jurisprudence, it should grant the petition and, in a one-line opinion, summarily reverse the Fifth Circuit. If it’s unwilling to do that, it should stay the trial below and hear the case now.
What it should not do is deny the petition and allow a civil trial against Mckesson, then review the First Amendment issue if Mckesson loses. The danger of cases like this is not simply the possibility of local juries turning their ire on unpopular defendants; it is the certainty that this type of lawsuit will impose crippling litigation costs on those defendants. Appellate vindication years later will be of little use; they will likely be bankrupt by then.
Until (or if) SCOTUS takes this up, the ruling stands. Being at the same protest as people who attack law enforcement is now the problem of protest organizers, at least in the state of Louisiana. Officer Doe may not ultimately prevail, but someone engaged in supposedly-protected activity still has to defend himself against the cop's ridiculous claims.
Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.
Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.
While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.
–The Techdirt Team
Filed Under: 1st amendment, 5th circuit, black lives matter, deray mckesson, free speech, new orleans, protests
Reader Comments
Subscribe: RSS
View by: Time | Thread
Whaaaaa
Everyone is liable for my suffering!!!
[ link to this | view in thread ]
And let’s be clear about this: People file lawsuits such as these and SLAPP actions with the intent to inflict a financial version of “death by a thousand cuts”. Whether they win or lose in the end matters not — such plaintiffs care only about whether the defendants lose enough (or all) of their money. Getting to trample all over the First Amendment is but a lovely side bonus to such greedy, vindictive ghouls.
[ link to this | view in thread ]
'Civil rights'? Never heard of it.
Until (or if) SCOTUS takes this up, the ruling stands. Being at the same protest as people who attack law enforcement is now the problem of protest organizers, at least in the state of Louisiana. Officer Doe may not ultimately prevail, but someone engaged in supposedly-protected activity still has to defend himself against the cop's ridiculous claims.
I can only imagine how such a ruling would have decimated past protests, say during the civil rights movement. Simply slip in an out-of-uniform stooge to rile people up and/or throw a few rocks and just like that you've got whoever organized a protest on the hook for the 'damages', making people all the more hesitant to be involved in future protests lest they face the same.
Outside of outlawing protests entirely I struggle to think of a better way to ensure that no one has the gall to protests against their 'betters', as all it takes is one out of control(or someone acting like it) person and suddenly the head of a protest is facing liability.
[ link to this | view in thread ]
Re:
Sadly, vexatious litigation can only (at this time) be proved after the fact, requires actual loss in court (not settlements) and in some states only exists because the court felt it was needed. While I am sure most people are aware that loser pays can backfire, having some kind of national vexatious litigation law that awards damages might be a good alternative for things like this.
[ link to this | view in thread ]
A way to defeat this
So if someone is injured at a Trump rally, Trump is ultimately responsible, under the guise of This ruling. Likely either a way to see this overturned, or to usher in an authoritarian state.
[ link to this | view in thread ]
Re: Re:
Loser pays makes people evaluate their suite before the bring it, and does avoid the US situation, where the defendant can go broke winning the case. Everybody pays their own costs hands a big advantage to those with lots of money, in that they can spin out a case until their target goes bankrupt.
[ link to this | view in thread ]
Re: A way to defeat this
There are some very fine people at trump rallies.
[ link to this | view in thread ]
A good reference is the 1965 'March on Selma'.
It was reasonably foreseeable that there would be an injury on the police side. Should the organizers have been legally responsible for that injury?
For background, during a previous march three weeks earlier police had attacked the unarmed, peaceful protesters and killed one of them. During the same march two press photographers were clubbed by police and a TV reporter was badly beaten by police. It was very likely that police would be violently attacking any march in support of civil rights.
Now, again, should protest organizers be legally responsible for police injuries? How would that have changed organized civil rights demonstrations?
[ link to this | view in thread ]
All animals are equal, some however are more equal than others
Unfortunately I have no doubt that if you were to take the exact same judges that made this ruling and present them with an instance like what you describe suddenly the one in charge of an event would not be liable for what those in it may or may not do, and personal responsibility would be back on the table.
[ link to this | view in thread ]
Offer of Judgment, Anyone
I have to hope not only that Louisiana has a good offer-of-judgment statute, but that def's atty made an early qualifying offer. $1.00 should be about right on the facts as set forth in the article.
[ link to this | view in thread ]
McKesson is being represented by the ACLU. His legal costs are fully covered. Why all the talk about this bankrupting him?
[ link to this | view in thread ]
Re: 'Civil rights'? Never heard of it.
Decimation isn't all that bad. It only destroys 10% of a thing. A law like this would have done a lot more than decimate those protests.
[ link to this | view in thread ]
Re:
Because that annoying little fact doesn't fit the narrative.
[ link to this | view in thread ]
If you stage a protest and people get hurt, you ARE liable for any damages that are inflicted as a result of YOUR protestors. YOU can't claim that you shouldn't be held financially liable.
[ link to this | view in thread ]
Re:
Because McKesson is fortunate in that fact -- it's not just him we're worried about, but the problems this ruling poses for future litigants who may not have folks sticking up for them pro bono (it usually takes a bit of time to reach that point)
[ link to this | view in thread ]
Re:
Lets say I stage a sit-in protest in a space somewhere that's legally accessible to the public. Someone (perhaps distracted or harried) trips over a seated protestor and falls, injuring their back. Should I, the protest organizer, be liable because of something that could easily have happened in that space anyway, protest or no protest?
[ link to this | view in thread ]
Re: A way to defeat this
Given that Trump actively incited violence, saying he would pay legal bills...
[ link to this | view in thread ]
Fire Cushing
Cushing, your anti-law/anti-law enforcement hatred has reached new heights here.
Holding a perpetrator of a crime responsible for the second-order effects of said crime is long-held precedent in this country. It holds scumbags responsible for their irresponsible actions.
Masnick should fire your ass and stick to the one subject he's ever right about: copyright. All these whiny distractions about police and 'moderation is hard to do at scale' boo-hooing is tiresome and weak.
[ link to this | view in thread ]
Re: A way to defeat this
No, dunce. The key here is the protest was illegal. A political rally isn't.
Commit a crime, the repercussions of said crime are on your shoulders.
This isn't something new. Why are the usual suspects on this site pretending it is?
[ link to this | view in thread ]