Free Speech: Illusion vs. Practice

Advocacy, First Amendment

Imagine hosting a party and two people you didn’t invite get into a fight. One uninvited guest punches a security guard and the security guard sues you claiming you should have expected there may be violence at the party. 

Sounds absurd, right? The Fifth Circuit Court of Appeals didn’t think so when it allowed a police officer to sue DeRay Mckesson, a Black Lives Matter protest organizer, due to an injury sustained from an attendee who threw a rock. The 2016 protest was on behalf of the alleged murder of Alton Sterling by police. Mckesson neither personally invited nor even knew the protester but was accused of being responsible because he “knew or should have known … that violence would result,” according to one USA Today article. The Fifth Circuit Court heard the case after being dismissed by the District court.

The Supreme Court tossed out the decision earlier this month, citing First Amendment and free speech protections and sent it back to the lower court for “further proceedings consistent with this opinion.”

The SC opinion is long and difficult to interpret. In essence, it purports the Fifth Circuit Court of Appeals made its decision without duly consulting Louisiana State Law and without due regard for the First Amendment implications.

There is a lot to unpack with this ruling, both from the appeals court and the Supreme Court. The ACLU, representing Mckesson, indicated that if the Supreme Court let the ruling stand it would gut free speech protections for protests and peaceful assembly.

A statement from the ACLU in December said:

“The Supreme Court in 1982 held that while the Constitution does not protect violence, it does limit the government’s ability to place responsibility for that violence onto peaceful protesters. That seminal civil rights case, NAACP v. Claiborne Hardware Co., has been cited repeatedly to ensure robust speech protections, including to dismiss a lawsuit against then-candidate Donald Trump for violent acts committed at a campaign rally and to challenge efforts to stifle Keystone XL pipeline protests.”

Mckesson is also quoted in the ACLU statement saying, “The goal of lawsuits like these is to prevent people from showing up at a protest out of the fear that they might be held responsible if anything happens. If this precedent lasts, it could make organizers all across the country responsible for all types of things they have no control over, such as random people coming into a protest and causing problems. We can’t let that happen.”

The case ACLU cites as precedent, NAACP v. Claiborne Hardware Co., echoes the suit against Mckesson. According to the Oyez Project, in NAACP v. Claiborne Hardware Co. white merchants from Clairborne, Mississippi sued the NAACP for damages in lost revenue caused by a boycott of white businesses. The Mississippi Supreme Court upheld the lower court’s award of damages because the protest initiating the boycott included violence and threats of violence and led the court to deem it an unlawful gathering. 

The Supreme Court reversed the decision saying, “The NAACP is not liable in damages for the consequences of their nonviolent activity and the damages cannot be recovered because the violence or threats of violence were not a proximate cause of the business losses.”

The notable similarities in the cases caused the Supreme Court to agree. Though the damages the merchants were seeking were not a result of violence, the case has been used in various similar suits to protect freedom of assembly.

If Mckesson or anyone that organizes such protests must be held accountable for each attendees actions, the repercussions would result in a drastic chilling of freedom of assembly. Who would want to put themselves at risk of being sued in the case of an errant attendee? The case could be made that opponents could “crash” the protest, cause violence or destruction of property and leave the organizer at serious risk of litigation.

This Supreme Court decision is not just a win for the Black Lives Matter movement but for free speech and First Amendment rights across the board. Trump and his supporters have benefited from this very line of judicial reasoning referenced in the ACLU statement. A lawsuit against Trump for ‘inciting a riot’ at a 2016 rally was dropped in a lower court. In that instance, individuals interrupted Trump during his speech at the rally and were then “roughed up” and removed from the event. 

Once we begin to assign personal liability of an entire group to one individual, we walk a thin line. This line is between true freedom of speech and the guise of free speech under the threat of bankruptcy and potentially one’s livelihood. That’s an illusion not practice.

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