GOP judges launch bizarre attack on Black Lives Matter and the First Amendment

Ian Millhiser

Ian Millhiser Senior Constitutional Policy Analyst, Think Progress

An opinion handed down Wednesday by three Republican judges could chill the First Amendment rights of protesters — and potentially allow police to shut down political movements by filing lawsuits harassing movement leaders.

The United States Court of Appeals for the Fifth Circuit’s decision in Doe v. McKesson effectively strips First Amendment protections from protest leaders who commit minor offenses, ignoring longstanding Supreme Court precedents in the process.

The “Doe” in Doe v. McKesson is an anonymous police officer who was allegedly injured by an unknown protester who is not DeRay McKesson. McKesson is a prominent racial justice advocate closely associated with the Black Lives Matter movement who, according to Doe’s complaint, helped organize a protest near the Baton Rouge Police Department building.

Doe alleges that the unknown person — who, again, is not DeRay McKesson — “picked up a piece of concrete or similar rock like substance and hurled [it] into the police” that were arresting protesters. Officer Doe claims he was hit by the rock and suffered serious injuries. If true, this rock-thrower’s actions are reprehensible, and whoever threw the rock belongs in prison.

Yet, in a legal complaint that is riddled with typos, Doe’s lawyers claim that McKesson should be liable for “injuries and compensable damages . . . greater than $75,000.00” because of the alleged actions of an unknown person who, in case this fact is not yet clear, is not DeRay McKesson.

Doe’s attorneys also offered several legal theories targeting the Black Lives Matter movement as a whole, all of which were too much, even for the panel of Fifth Circuit judges that ruled against McKesson, to contemplate. At one point, for example, Doe’s lawyers tried to add the hashtag “#BlackLivesMatter” as a defendant.

One glaring problem with Doe’s lawsuit is the First Amendment, which protects the right to join together in political associations. As the Supreme Court explained in NAACP v. Claiborne Hardware, “civil liability may not be imposed merely because an individual belonged to a group, some members of which committed acts of violence.” Instead, Claiborne lays out three instances where a peaceful participant in a protest could be liable for the violent actions of someone else.

One is if McKesson’s words were likely to incite imminent lawless action, but Doe’s complaint points to no statements by McKesson that could even conceivably do so. Another is if McKesson gave someone “specific instructions to carry out violent acts or threats,” but Doe does not allege that McKesson ordered anyone to throw a rock. The most that Doe claims is that McKesson “was seen and heard giving orders throughout the day and night of the protests.”

Additionally, McKesson could be held liable if he “authorized, directed, or ratified specific tortious activity.” But, again, beyond vague claims that McKesson told someone to do something during the course of the protest, Doe doesn’t allege that McKesson told anyone to throw a rock.

The Fifth Circuit dodges Claiborne by suggesting that if McKesson endorsed any illegal activity, that justifies stripping him of his First Amendment rights.

At one point, the protesters allegedly blocked a street, which violates Louisiana law. Thus, the panel of three Republican judges reason that “Officer Doe’s complaint does allege that McKesson directed the demonstrators to engage in the criminal act of occupying the public highway, which quite consequentially provoked a confrontation between the Baton Rouge police and the protesters, and that Officer Doe’s injuries were the foreseeable result of the tortious and illegal conduct of blocking a busy highway.”

This minor criminal act, according to the Republican judges, is enough to establish that “the First Amendment is not a bar to Officer Doe’s negligence theory.”

The implications of this legal theory are breathtaking. For one, there is a long history of civil rights protesters blocking streets over the objections of the police. Courts have not typically held that doing so strips these protesters of their constitutional rights.

History aside, if McKesson can lose his First Amendment rights because he allegedly committed a minor offense that is only incidental to someone else’s violence, can any offense at all justify such a consequence? What if McKesson was the passenger in a bus bringing many people to the protest, and he told the driver to drive slightly faster than the speed limit? Or what if he advised protesters to park their cars in a no parking zone? Would these offenses be enough to strip him of his First Amendment rights?

There are other problems with the Fifth Circuit’s theory as well. As the three Republican judges acknowledge, McKesson may only be liable for Doe’s alleged injuries if those injuries were the “foreseeable result” of McKesson’s alleged actions. But their claim that McKesson should have foreseen that organizing a protest that blocks a street would lead to a rogue individual throwing a rock is dubious at best.

In fairness, the Fifth Circuit’s Doe opinion comes at an early stage in this litigation. As even that opinion acknowledges, “our ruling at this point is not to say that a finding of liability will ultimately be appropriate.” McKesson will still be allowed to attack the factual underpinnings of Officer Doe’s claims, among other things.

But he will likely have to do so at considerable legal expense. And he will have to do so despite a Supreme Court decision which explicitly provides that members of a political movement do not sacrifice their First Amendment rights because of the violent actions of other members of that movement.

Worse, the Doe opinion offers a road map to police officers — or, really, to anyone injured by a single participant in a political movement they disagree with — to shut down those movements with litigation.

Opinions like Claiborne exist for a reason. They exist because wise judges understood that the price of political organizing is that sometimes people with violent motives will join a movement without the knowledge of the movement’s leaders. If those leaders can be held liable for the wrongful actions of a fringe minority, then such organizing would be too dangerous for any but the most deep-pocketed movements, and core First Amendment rights will become meaningless.

But, in the age of Trump, wise judges are hard to find. And they are especially hard to find in the Fifth Circuit.


Reposted from ThinkProgress

Ian Millhiser is a Senior Constitutional Policy Analyst at the Center for American Progress Action Fund and the Editor of ThinkProgress Justice. He received a B.A. in Philosophy from Kenyon College and a J.D., magna cum laude, from Duke University. Ian clerked for Judge Eric L. Clay of the United States Court of Appeals for the Sixth Circuit, and has worked as an attorney with the National Senior Citizens Law Center’s Federal Rights Project, as Assistant Director for Communications with the American Constitution Society, and as a Teach For America teacher in the Mississippi Delta. His writings have appeared in a diversity of legal and mainstream publications, including the New York Times, The Los Angeles Times, U.S. News and World Report, Slate, the Guardian, the American Prospect, the Yale Law and Policy Review and the Duke Law Journal; and he has been a guest on CNN, MSNBC, Al Jazeera English, Fox News and many radio shows.

Posted In: Allied Approaches

Union Matters

Get to Know AFL-CIO's Affiliates: National Association of Letter Carriers

From the AFL-CIO

Next up in our series that takes a deeper look at each of our affiliates is the National Association of Letter Carriers.

Name of Union: National Association of Letter Carriers (NALC)

Mission: To unite fraternally all city letter carriers employed by the U.S. Postal Service for their mutual benefit; to obtain and secure rights as employees of the USPS and to strive at all times to promote the safety and the welfare of every member; to strive for the constant improvement of the Postal Service; and for other purposes. NALC is a single-craft union and is the sole collective-bargaining agent for city letter carriers.

Current Leadership of Union: Fredric V. Rolando serves as president of NALC, after being sworn in as the union's 18th president in 2009. Rolando began his career as a letter carrier in 1978 in South Miami before moving to Sarasota in 1984. He was elected president of Branch 2148 in 1988 and served in that role until 1999. In the ensuing years, he worked in various roles for NALC before winning his election as a national officer in 2002, when he was elected director of city delivery. In 2006, he won election as executive vice president. Rolando was re-elected as NALC president in 2010, 2014 and 2018.

Brian Renfroe serves as executive vice president, Lew Drass as vice president, Nicole Rhine as secretary-treasurer, Paul Barner as assistant secretary-treasurer, Christopher Jackson as director of city delivery, Manuel L. Peralta Jr. as director of safety and health, Dan Toth as director of retired members, Stephanie Stewart as director of the Health Benefit Plan and James W. “Jim” Yates as director of life insurance.

Number of Members: 291,000 active and retired letter carriers.

Members Work As: City letter carriers.

Industries Represented: The United States Postal Service.

History: In 1794, the first letter carriers were appointed by Congress as the implementation of the new U.S. Constitution was being put into effect. By the time of the Civil War, free delivery of city mail was established and letter carriers successfully concluded a campaign for the eight-hour workday in 1888. The next year, letter carriers came together in Milwaukee and the National Association of Letter Carriers was formed.

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