Editor’s note: Jill Filipovic is a New York-based journalist and author ofOkay, Boomer, let’s talk: How my generation was left behind.” Follow her twitter. The opinions expressed in this comment are solely her own.view more opinions On CNN. This article has been updated to reflect the latest news.
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If you organize a protest and a participant, counter-protester, or random yahoo shows up and commits an act of violence, will you be legally punished? In Texas, Louisiana, and Mississippi, the answer right now is is “yes”. And the U.S. Supreme Court has left that terrible decision in place.
On Monday, the court declined to hear McKesson v. Doe. The lawsuit accuses Black Lives Matter organizer DeRay McKesson of having thrown rocks at police (not McKesson himself, importantly) at a protest he organized in Baton Rouge, Louisiana. It’s something. The officer suffered serious injuries to his face.
The assault was horrific, tragic, and criminal. However, the person who was held responsible was not the actual perpetrator, whose identity remains unknown. It was McKesson. Officer Doe, who was not named, filed the lawsuit on the theory that Mr. McKesson knew or should have known that violence would ensue at the protests and therefore should be held liable for negligence. It was a person.
The Fifth Circuit partially agreed. McKesson or other protest organizers could be held liable under a theory of negligence even if a third party participated in the protest, even if the third party did not act in accordance with instructions. It was decided that Even if they had no intention of inciting violence. The 5th Circuit held that McKesson could be held liable even though he did not intend to cause violence, did not incite or encourage violence, and acted violently for no reason. handed down the verdict.
The Fifth Circuit’s decision has significant First Amendment implications. After all, Americans have a constitutionally protected right to protest. But that right becomes completely meaningless if someone who organizes a protest can be sued for financial ruin because of the bad behavior of someone who might participate. As Ian Millhiser pointed out in Vox, “Under the Fifth Circuit’s rules, Ku Klux Klansmen can disrupt the Black Lives Matter movement simply by showing up at a protest and throwing rocks. be able to”.
Justice Sonia Sotomayor commented on the court’s refusal to hear the case, a recent decision handed down less than two weeks after the Fifth Circuit handed down McKesson, Counterman. v. Colorado, the court noted, had already considered First Amendment issues. “In Counterman, the court made clear that the First Amendment prohibits the use of ‘objective standards’ such as negligence to punish speech,” Sotomayor wrote. She included a quote from Counterman in her brackets: “The First Amendment excludes punishment.” [for incitement]Unless the speaker’s words were “intended” (not just likely) to cause imminent disruption, whether civil or criminal. ” Applying the negligence standard to liability “would violate the First Amendment,” she wrote.
The Fifth Circuit used a negligence standard to hold McKesson liable for the actions of another protester. Mr. Sotomayor apparently argues that this is false. “The court’s rejection today does not express a view on the merits of McKesson’s claims, as the court may reject the award for a number of reasons, including that the law does not require further clarification. “No,” she says. The Fifth Circuit did not have a reliable counterman decision when deciding in McKesson. Sotomayor wrote that now that Counterman is in the public eye, he expects lower courts to “fully and fairly consider arguments regarding Counterman’s impact on future proceedings in this case.”
In other words, the Fifth Circuit’s McKesson decision is wrong. The lower courts hearing McKesson can and should choose to apply this law appropriately. The Fifth Circuit may eventually join. But the Supreme Court declined to actually overturn the Fifth Circuit’s decision. That means people in Texas, Louisiana and Mississippi are still bound by the ruling for now.
This is very bad news for activists, or frankly anyone who wants their voice heard in public. The 5th Circuit Court of Appeals has long been hostile to the Black Lives Matter movement and McKesson in particular. Some conservatives may welcome this moment of reversal. But they should also ask whether they want to hold their movement’s leaders accountable if violence erupts at, say, an anti-abortion march or a pro-Trump “Stop the Steal” rally. After all, both of these movements have long been rife with violence. Does that mean that someone who organizes a protest in their own name is potentially culpable for the harm that their participants cause?
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Freedom of speech, expression, and assembly are fundamental American values, and their protection is so important that they are enshrined in the first amendment to the Constitution. Those of us who wish to protect these rights must support them, regardless of their content. So whether you support the Black Lives Matter movement (for the record, I do) or the MAGA or anti-abortion movement (for the record), you have to stand up for rights. , not). Allowing leaders to be prosecuted if a single bad actor commits egregious behavior at a protest imposes too great a potential cost on organizers. It is a functional blockade of speech and, as the Supreme Court has held, is constitutionally impermissible.
But it is also currently the land law of three American states. And all Americans, regardless of ideology, should stand up with arms and demand change. People in Texas, Louisiana, and Mississippi have the same right to protest as everyone else.
