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.

Filed Under: 1st amendment, 5th circuit, alton brown, baton rouge, black lives matter, deray mckesson, free speech, protests, supreme court