The Supreme Court Needs To Reverse The Fifth Circuit's Awful Ruling In The DeRay McKesson Case
from the not-as-much-First-Amendment-in-the-South-right-now dept
Whenever our nation's court system resumes to normalcy, there will hopefully be another case on the Supreme Court docket that could clarify if someone who engages in protected speech can be held responsible for violent actions of someone else at the same protest.
Activist DeRay McKesson participated in a Black Lives Matter protest in Baton Rouge, Louisiana following the shooting of Alton Brown by police officers. During this protest, someone threw a chunk of concrete at a cop, injuring him. The officer -- known only as "John Doe" in his filings -- sued McKesson (along with the entire Black Lives Matter movement and, inexplicably, a set of Twitter hashtags).
The district court found in favor of McKesson, saying he wasn't directly or indirectly responsible for the actions of other protesters, even if the protest began with protesters illegally blocking traffic. Officer Doe appealed. Inexplicably, the Fifth Circuit Appeals Court refused to address the First Amendment issue, finding instead that -- under state law -- McKesson could continue to be sued for participating in the same protest where this mystery cop was injured.
McKesson asked the Fifth Circuit to take a second look at its awful decision. It did and liked what it had said the first time around. The only exception was Judge Don Willett, who belatedly recognized the First Amendment issue was paramount and that allowing protest organizers to be personally sued for the violent actions of others was extremely bad precedent to set.
That's where the Supreme Court might be able to help. If it takes the case, it can reverse this precedent -- one that stands not-so-firmly on a 8-8 split between Fifth Circuit judges. Constitutional law professor Garrett Epps has a thorough rundown of the case's history at The Atlantic. Epps says the wild card in play is not the recently-apologetic Judge Willett, but rather another member of the court, Judge James Ho, who seems determined to make Constitutional rights subservient to the needs and wants of police officers.
As for the First Amendment question, [Judge Ho] said, Mckesson deserves to lose.
Why? Claiborne Hardware concerned a boycott by NAACP leaders of white stores in Port Gibson, Mississippi. The boycott demanded an end to racist hiring practices in those stores. Ho now claimed this made Mckesson’s case completely different:
"The theory of liability rejected in Claiborne Hardware was inherently premised on the content of expressive activity. If the defendants had advocated in favor of the white merchants, no court would have held them liable for such speech. So the tort liability theory adopted by the state courts necessarily turned on the content of the defendants’ expressive activities."
This description of Claiborne Hardware—that the Mississippi law at issue in Claiborne Hardware contained a racial element, making the ruling applicable to protests against segregation only—is, not to put too fine a point on it, swill. I cannot find anything in the record to support it.
In Ho's estimation, not participating in the right kind of protest strips protesters of their First Amendment protections and makes them civilly responsible for the acts of other attendees. Since this protest of the killing of a black man by cops didn't agitate against racists laws, McKesson can be sued for an injury sustained by a police officer while policing the protest. Nothing in settled law supports Ho's view, but Ho's vote still counts and that makes an 8-8 tie as good as a win for the anonymous cop.
As Epps sees it, this is Judge Ho being Judge Ho -- a judge who has a track record for siding with law enforcement officers for dubious reasons, including one case where he criticized the lawyer of a 12-year-old student challenging a warrantless search of his pants pockets so harshly the Appeals Court withdrew his decision.
I have no idea why Judge Ho would distort the record this way. But I do note that he has already made clear that he sees protecting police as a major concern. He has tortured the facts of Mckesson in a way that preserves the possibility that police can sue demonstrators. Since the en banc court did not vacate it, the panel’s third opinion—demonstration organizers can be held liable for the actions of others—remains good law in the Fifth Circuit.
Letting this decision stand chills expressive activity in the Appeals Court's jurisdiction. It allows for the punishment of expressive activity via lawsuits targeting organizers and prominent activists any time a government employee suffers an injury while responding to a demonstration. The end result will be fewer protests, which may be exactly what half the judges on this court want.
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Filed Under: 1st amendment, 5th circuit, alton brown, baton rouge, black lives matter, deray mckesson, free speech, protests, supreme court
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This looks ripe due to the circuit split
Interesting, trump incited his thugs to (violently) eject protesters but the 6th circuit held trump not liable.
Whereas, the fifth circuit doesn't want to protect a minority not advocating to protect life.
Looks a lot like bias in the fifth circuit.
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Re: This looks ripe due to the circuit split
So, in theory, if you want to get the current administration to push for tossing this out, have someone harmed by a pro-administration rally in Texas, Louisiana, or Mississipi file suit citing this case as precedent....
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Re: Re: This looks ripe due to the circuit split
You'd think so, but sadly that would require consistency in the courts, and that's sadly not likely to happen.
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Re: This looks ripe due to the circuit split
Funny, Trump was not in office when this occurred.
Typical jumping to conclusions only to expose your OWN IGNORANCE.
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If cops get qualified immunity for bad shit they actually do themselves, then protesters shouldn't be liable for shit they didn't personally do.
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Re:
That's what the equal protection clause of the Constitution demands, but somehow the courts don't see it that way.
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Re:
Pfft.
You miss the salient points, namely;
1) The cop in question is a Law Enforcement Officer.
2) The Cop is, in fact, White.
3) The protestor is, in fact, a civilian.
4) The protestor is, in fact, not white.
To a non-zero proportion of the US judicial establishment that's already an open-and-shit case where the protestors need to skedaddle right back to the plantation and stop making shit difficult for the nice white boys in uniform keeping the streets safe for honest and upstanding white folk.
James Ho is a card-carrying federalist and so deep in the alt-right crowd it's no wonder to see him acting as standard bearer for Bill Barr and Trump. Again.
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Re: Re:
That was going to be "open-and-shut"...I guess my feelings about the case at hand slipped out...
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Re: Re:
I probably don't really need to repeat it for this crowd, but remember folks- A police officer is a civilian.
Too many of them have military power fantasies and want to wear the cool camo uniforms with the armored codpiece while riding around in big-dick-swingin' battle trucks on their way to point rifles at peaceful unarmed protesters, but it really is a fantasy and you have to (repeatedly) remind them that they are grownups and not meant to be playing soldier-man while they are at work.
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A fantasy accepted as true effectively is
While I agree with your point the problem is that the courts more often than not think otherwise and rule accordingly, such that while both may technically be civilians the rules applied(or even if they are applied) can vary wildly.
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We Get It, We Get It
...yes, Monastery, we understand; you hate white people.
The question is, does that extend to Asian people like Judge Ho as well? Is he, like, an honorary evil bad guy white man? Your odd fetish for antebellum language ('plantation', 'white folk') makes one think you'd not be averse to calling Judge Ho an 'Uncle Tom'.
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These people,the judges, are supposed to be super intelligent and super knowledgeable, certainly on matters of law. How can one of the most fundamental and basic aspects of law, Freedom of Speech, Protected Speech, be ignored? Were these fuckers high? Had they been 'encouraged' to reach this verdict? How the hell did they ever make 'Judge' anyway?
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Re:
"How the hell did they ever make 'Judge' anyway?"
Ask SCOTUS Judge "Beer-Me"
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I realize you are paraphrasing the decision, but nevertheless, this quote:
strikes me as being shocking inaccurate. Racist laws are PRECISELY what the protests were about.
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Re:
Um, no. Unless you want to try to claim that white people are allowed to threaten random people with guns and fight police without consequences, the laws that Alton Sterling was shot over aren't racist.
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seriously....US law isn't racist?
I cannot believe I read this at Techdirt:
the laws that Alton Sterling was shot over aren't racist
Have you ever read an American law, Bergman?
Maybe start with the thrre-fifths clause:
https://www.encyclopedia.com/politics/encyclopedias-almanacs-transcripts-and-maps/three-fift hs-clause
The ENTIRE SYSTEM of laws, starting at was written to deny black people power in any situation.
I can't believe that I read that here at Techdirt....
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Alton Sterling wasn’t shot because he was protesting the Three-Fifths Clause.
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Let's Get Specific
Mcherm, please cite specific laws you consider racist. I am legitimately curious about which laws you're referring to. They can be state or federal.
Of course, I mean existing laws that are actually enforced by courts in 2020. (I.e. don't bring up some old Jim Crow nonsense long ago overturned, or some obscure city ordnance still technically on the books but no longer enforced.)
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If Ferguson activist Darren Seals were alive today, after he was murdered by what looks like the KKK, and after he complained of white women affilliated with the Ford Foundation and DeRay McKesson co-opting Fergusons dissent, he would laugh at how Democracy is just for te gays and white wimmins now.
And I bet that cowards like Lt. Col. Dave Grossman of Killology.com are affilliated with those NGOs too.
Yeah, the Ku Klux Klan (uber bad guys) working with (or for?) an Israeli affiliated hit squad,killing Darren Seals and other Ferguson activists.
DeRay McKessons political co-opting ass is merely getting the bitch slaps he so deserves.
Sad that th
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Please explain why DeRay McKesson deserves to have his First Amendment rights stripped from him by the courts over the fact that he coöpted someone else’s…politics? Protest? Whatever.
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Re: words have consequences, lol
Are you seriously trying to infer that you care about the First Amendment, Stone?
Darren Seals was murdered after he spoke out about the co-option of the Ferguson protests, and just after he connected the dot between white, female co-opters funded by the Ford Foundation and the fake-rationalists of Harvard, et al, to that co-option.
Counterpunch and others are well aware of these foundations and their co-opters too.
https://www.counterpunch.org/2015/08/10/ford-foundation-fabrications-about-the-new-student-powe r-movement/
And so, I think he is deserving of the consequences of the phrase words have consequences so often spouted by the fake-left. In this case, the right sees him as the fraud he is.
And so, yeah, in true left tradition (mine), I now gives no f@cks what happens to the guy (or other co-opters, provocateurs, snitches, etc.) going forwards.
Only the white people of the gatekeeping fake left, and his LGBTQIetc mafia seem to find him relevant (white folks LOVE gay black leaders, because for all of time, their goal is to stop black families from thriving).
And again-so often we see that the dialectic space is consumed with stories about co-opters, as real stories about the dead Ferguson activists (that McKesson didn't and doesn't give two shits about) die in the news cycle, and trolls ask for proof of homicide, and spew conspiracy theory at every opportunity.
I am a first amendment absolutist, (and anyone here who knows my spiel knows this (even in his case) and so, I just compared the proverbial apple to a dead man's free speech, simply to highlight the hypocrisy of both the left and the right on this issue.
But at least I have something to base that opinion on. How about you?
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Re: Re: words have consequences, lol
You seem sane.
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Re: Re: Re: words have consequences, lol
You seem like a piece of shit. Keyword, you.
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Nothing in that diatribe explains why DeRay McKesson deserves to have his First Amendment rights stripped by a court of law (i.e., the power of the state).
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Re: nope, never said that
As usual, you are falsely claiming that I made some claim or other that I didn't and then arguing against your own lies and gibberish.
My opinion as stated is that I don't give a rats ass about McKessons rights now (speech has consequences, lol).
My argument IS NOT that he doesn't have them, or that they shouldn't be enforced/protected.
I simply implied that I won't personally give a rats ass about what happens to him going forwards.
And you, in typical TD troll fashion simply lied about my position.
And, you are making a great case to my peers about the need for deployment of persona management software, VPN cloaking, and troll farming in discussions with the fake-left(you) and the Nazi's (also you) on free speech issues.
Its impossible to speak or be heard fairly in the western corporate controlled media as an individual, so I am now leaning towards the PM kit these days.
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Re:
I didn't say anything close to that. Here is what I said (lets start with that so that there is zero misunderstanding about how you deliberately troll):
I said:
Are you seriously trying to infer that you care about the First Amendment, Stone?
Darren Seals was <em> murdered after he spoke out about the co-option of the Ferguson protests, and just after he connected the dot between white, female co-opters funded by the Ford Foundation and the fake-rationalists of Harvard, et al, to that co-option.
Counterpunch magazine online, and others are well aware of these foundations and their co-opters too.
https://www.counterpunch.org/2015/08/10/ford-foundation-fabrications-about-the-new-student-powe r-movement/ r-movement/
And so, I think he is deserving of the consequences of the phrase words have consequences, so often spouted by the fake-left (you). In this case, the right sees him as the fraud he is.
And so, yeah, in true left tradition (mine), I now gives no f@cks what happens to the guy (or other co-opters, provocateurs, snitches, etc.) going forwards.
Only the white people of the gatekeeping fake left (you), and his LGBTQIetc mafia seem to find him relevant.
white folks like you LOVE gay black leaders, because for all of time, their goal is to stop black families from thriving
And again-so often we see that the dialectic space is consumed with stories about co-opters, as real stories about the dead Ferguson activists (that McKesson didn't and doesn't give two shits about) die in the news cycle, and trolls ask for proof of homicide, and spew conspiracy theory at every opportunity.
I am a first amendment absolutist, (and anyone here who knows my spiel knows this (even in his case) and so, I just compared the proverbial apple to a dead man's free speech, simply to highlight the hypocrisy of both the left and the right on this issue.
But at least I have something to base that opinion on. How about you? I mean, real life problems are so much different than sucking cocks at a college glory hole in Nawth Calanky, that I cannot expect that you could have an answer to any real life problems as stated above (straight black activist murdered, v black cocksucker alive)
I mean, your form of activism always ends up on its knees, whereas others died for your right to flag these posts, while doing NOTHING about the situations in the many Fergusons across America, and the worlds.
Why is that?
Oh, never mind....
POOF
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Listen to what we say, dont do what we say..
Such a confusing concept.
HOw many potentates have stood up and declared to the masses... anything that could be misconstrued into another fashion or blatantly deliberately followed.
We tend to be human, and many of us look up to others to know "other things", and be truthful, knowledgeable.. And some are(the list is getting very short).
An attitude from long ago, keeps popping up and its Just wrong(esp with abit of history behind the fault). "I'm right, you are wrong, and if you dont believe me(even if there is logic/history/truth against my meanings) I will cause you harm, until Im right."
A few religions still have this, including Christian(and a few of the 40+ sects of Them)
Who gets the responsibility of whats in a persons religion/beliefs, or what they understand from what a person has said. Our current prophetizer(profitizer) tends to be our TV and internet.
WHO has the rights/ability to be listened to.. and are they correct. <--BIG question there. Or are they doing it for the money? Even Rush has said a few things about this to an Animated Dog.
1st amendment needs a Line about Lies. Lying to the group, not exaggeration. Blatant Lies. To instigate Those that believe a falsehood. But then we need Facts, and abit of truth. Where in hell can you find that? Not in politics/banking/most corps/economics..
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Creating a battle plan
This decision creates a not-so far-fetched battle plan for police quashing protests.
1) Roll out cops to a peaceful protest
2) Send 'your guy' into the protest in disguise
3) 'Your guy' throws a rock and then disappears into the crowd
4) Police now have reason to break up the protest AND sue the organizers
5) Profit?
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Excluding the lawsuit, this is already Standard Operating Procedure for a lot of police departments.
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Standing Operating Procedure?
Stone, really? Or are you just being metaphorical or hyperbolic?
I'd like to know which PDs currently use violent agents provocateur during protests/riots. Use said 'for a lot of' PDs, so it shouldn't be hard to find examples.
Now, you said 'police departments', so federal orgs don't count. We know feds use agents provocateur all the time; that's not news to anyone. BATFE are the specialists in this tactic, but FBI are also practitioners.
Also, the example he used was not talking about undercover police in the rioting crowd gathering intel, or even doing property damage to keep up the façade (thought I've not heard of the latter, I assumed it's happened before).
The example he used was an undercover cop committing assault as a false flag. Cite an valid, equivalent, real world example in the 21st Century, please.
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Re:
[citation needed]
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Could we use this to good benefit
I disklike the precedent this sets, but...could it be used to sue the idiots protesting stay at home orders? I believe the DeVos family has been reliably linked to those protests and they have plenty of money to go around.
I'm no fan of cops, but I would sure get my jollies if the cops who had to respond to the idiots at our capital, contracted Coronavirus and sued the DeVos family for organizing an event that resulted in their injury.
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Are you Candi CdeBaca, or Just a Fellow Bioterror Advocate?
I can't think of a better example of the massive ideological divide in this country than the sheer glee one side displays at the very thought of 'bad guys' (police officers, elderly Republicans in Wisconsin, anti-austerity protesters, people at 'MAGA rallies') contracting COVID.
This casual attitude towards hoping the 'wrong kind of people' contract a potentially fatal disease is extremely disconcerting. It borders on advocating for bioterrorism. I thought 'Love Trumps Hate'? I thought 'He Will Not Divide Us'?
I've never been accused of over-sensitivity, but I find this nauseating. It makes me lose hope for our country.
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Citizens in Ferguson rioted in the streets and people called that “the wrong way to protest”.
Colin Kaepernick took a knee during the National Anthem and people called that “the wrong way to protest”.
An NBA star wearing an “I Can’t Breathe” T-shirt during pre-game warm-ups. An athlete raising a gloved fist while standing on an Olympic podium. A Black woman refusing to give up her seat on a bus. A group of Black people staging a sit-in at a segregated lunch counter. Students leaving their classrooms to protest the lack of action on gun control. Each one considered “wrong”, to the last.
Hell, I disagree with their message and their methods, but even people protesting the stay-at-home orders have had their protests called “the wrong way to protest”. (I should know — I’m one of the people who think they’re all a bunch of fools for doing that.)
No protest is ever acceptable. No protest is ever convenient. No protest ever happens at “the right time”. To imply or claim otherwise is to set yourself up for one of the biggest “gotcha” questions of all time: What is the “right” way to protest?
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Re:
No protest is ever acceptable. No protest is ever convenient. No protest ever happens at “the right time”. To imply or claim otherwise is to set yourself up for one of the biggest “gotcha” questions of all time: What is the “right” way to protest?
Two possible answers come to mind, neither of them good.
First, quietly and in a manner that's not going to overly bother anyone important or draw any attention, and therefore will be completely and utterly useless(this, I suspect, is the answer you'd get from most people making the 'they protested wrong' argument if they were honest enough).
Alternatively, if someone has the utter audacity to protest against the authorities then a counter-protest against them might be considered the 'right' way to protest to certain people, because that at least is protesting the 'right' thing, that being uppity people who don't know when to keep their heads down and their mouths shut.
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Re:
"What is the “right” way to protest?"
Being bigger, better armed, and outnumbering the people opposing the protest.
Failing that, being ready to fight and die for your beliefs. You know, the way americans protested King George back in the day.
It's the logical end result of having the control freak minority and law & order fanatics carrying the day in every other vote for a hundred years. Either every citizen persistently guards their liberties or the nation slowly slips into tyranny.
The significant flaw a republic has over democracy is that it's even more sensitive to voter apathy than the latter.
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Re: “the wrong way to protest”
Sure, tell me more, you great guru of do nothing.
Your types are exactly why movements are undermined. Exactly why activists get killed in mysterious homicides.
Maybe get the fuck off your knees, and get the fuck out of your moms basement.
But my experience with you is that you are a do-nothing troll, with an internet flag brigade full of Naruto fans-and that's all you people do, ever, watching cartoons, and never actually doing anything else.
On one post, you are defending the rights of religionists, on another you are fake-defending black peoples rights, and yet on another, you are an actual Zio-Nazi.
SO, yeah, credibility issues, Stephen T. Stone, and Techdirt.com
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Typo
I'm pretty sure you meant Alton Sterling not Alton Brown.
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Is this it?
so full of thoughts
https://ewaantech.com/
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How to profit off this case
Simple recipe for profiting off this precedence:
1) go to rally by big name person.
2) have friend toss a rock at you.
3) sue person holding the rally for big money.
4) profit.
Probably would help if you were a cop, but that might not be that big a hurdle.
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'Oh no no no, they aren't responsible for that, they're rich.'
I all but guarantee that the precedent would be thrown out the window in a heartbeat with some laughable excuse(or a good excuse that should have been accepted this time) if someone tried to use it against a rich person.
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Re: Internet gulags and "free speech"
No one made the argument anywhere up there that McKesson deserves to have his "freezepeach" taken away by the government.
But certainly, he got bitch slapped by Darren Seals, who claimed that people like McKesson were co-opters, and that they work directly for/with the Ford Foundation to co-opt genuine grassroots movements.
And, curiously, was murdered later in a curious homicide.
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Re: Re: Internet gulags and "free speech"
'Freeze peach' is one of those phrases where, if someone uses it unironically, you can automatically discount and ignore anything they have to say.
To be so flippant about the founding principle of this country and to be dismissive of people concerned with preserving their right to speak freely is un-American.
(I'm not accusing you of using it unironically, frankly I don't know what you're trying to say.) I just wanted to point out that 'freeze peach' fits in the same category as 'bootlicker', 'Cheeto', and post-1945 use of 'Nazi'.
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Re: Re: Re: Internet gulags and "free speech"
Well, coming from an AC coward, that is interesting, but not convincing, esp. about founding fathers and Con-law.
So, start here: frankly I don't know what you're trying to say
Its a years long argument here at TD, ok? Me, ROGS v. many in-house TD trolls.
SO:
This: 'freeze peach' fits in the same category as 'bootlicker', 'Cheeto', and post-1945 use of 'Nazi'*
Yeah, more or less, thats the ironic zionazi usage.
But in the case at hand, note that the troll and its allies Stone eta l is flip flopping one post to another.
So, that. Dis-inginuity. Dis-ingenuousness. Total Spergs, simply occupying dialectic space, courtesy of the host.
Or, as you see in my writings, the cricket with the worm in its head.
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