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.
March 1965: Martin Luther King (1929 – 1968) leads the Alabama Civil Rights march, flanked by supporters. Next to him is fellow campaigner Ralph Abernathy (1926 – 1990). (Photo by Express Newspapers/Getty Images)
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.