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Hey, do you plan on protesting some general injustice and happen to live in Texas, Louisiana or Mississippi? Unless you have some serious insurance, I’d heavily encourage you to give it a second thought — the shield that is the First Amendment just got a major dent in it. Reuters has coverage:
The U.S. Supreme Court on Monday allowed a Black Lives Matter activist to be sued by a Louisiana police officer injured during a protest, opens new tab in 2016 in a case that could make it riskier to engage in public demonstrations, a hallmark of American democracy.
In declining to hear DeRay Mckesson’s appeal, the justices left in place a lower court’s decision reviving a lawsuit by the Baton Rouge police officer, John Ford, who accused him of negligence after being struck by a rock during a protest sparked by the fatal police shooting of a Black man, Alton Sterling.
Just in case you thought the introduction was a little over the top, I’d like to point you to SCOTUSBlog’s brilliant and concise assessment of the case’s issue:
[Does] the First Amendment and this court’s decision in NAACP v. Claiborne Hardware Co. foreclose a state law negligence action making a leader of a protest demonstration personally liable in damages for injuries inflicted by an unidentified person’s violent act, when it is undisputed that the leader neither authorized, directed, nor ratified the perpetrator’s act, nor engaged in or intended violence of any kind.
Now, you may not remember the Con Law module where your professor lamented about how the freedom of speech and the right to assemble inevitably get superseded by vicarious liability suits. That’s because it just wasn’t how things worked. Now, not so much — and the more you think through the 5th Circuit’s reasoning, the more absurd it becomes. Vox shared what the dissent had to say and it’s hard to see the hole in their reasoning:
Fifth Circuit Judge Don Willett, who dissented from his court’s Mckesson decision, warned in one of his dissents, his court’s decision would make protest organizers liable for “the unlawful acts of counter-protesters and agitators.” So, under the Fifth Circuit’s rule, a Ku Klux Klansman could sabotage the Black Lives Matter movement simply by showing up at its protests and throwing stones.
A restriction on free speech this great is bound to return to the Supreme Court. A Republican majority might not care when the person facing financial ruin is some Black guy in a blue puffer vest, but let’s be serious guys: the states are Texas, Louisiana and Mississippi. It is only a matter of time before a Klan rally turns violent and a hooded figure (who may or may not be a cop) gets hit with some serious civil liability. And when that happens, you can be sure that Thomas or Alito will manage to see beyond the facts and strike down the 5th Circuit’s decision as the free speech chilling affront to liberty that it is. But today is not that day.
US Supreme Court Rejects Black Lives Matter Activist’s Appeal Over Protest Incident [Reuters]
The Supreme Court Effectively Abolishes The Right To Mass Protest In Three US States [Vox]
Chris Williams became a social media manager and assistant editor for Above the Law in June 2021. Prior to joining the staff, he moonlighted as a minor Memelord™ in the Facebook group Law School Memes for Edgy T14s. He endured Missouri long enough to graduate from Washington University in St. Louis School of Law. He is a former boatbuilder who cannot swim, a published author on critical race theory, philosophy, and humor, and has a love for cycling that occasionally annoys his peers. You can reach him by email at cwilliams@abovethelaw.com and by tweet at @WritesForRent.
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