By: Jamie LaRue
While the First Amendment has many dimensions, it’s clear that political speech, “the right of the people peaceably to assemble, and to petition the Government for a redress of grievances,” is explicitly guaranteed.
Or is it?
Consider the case of DeRay Mckesson. In 2016, the civil rights activist participated in a protest in Baton Rouge, Louisiana. Its purpose was “to celebrate the life of Alton Sterling, a Black resident shot and killed by two on-duty police officers — and demand accountability and transformative change,” according to an ACLU press release. But during the protest, someone threw a rock and injured a police officer. The officer doesn’t allege that Mckesson threw the rock; but it does claim that he is responsible for the injuries “because he encouraged the protest.”
Previous court rulings, most notably, NAACP v. Claiborne Hardware Co., found that peaceful protesters can’t be held accountable for the violent acts of others. That same principle was used to shield President Trump against violence that occurred at his rallies. But the Fifth Court of Appeals ruled in August that the officer’s case could continue.
The ACLU is correct that this precedent represents a profound threat to political speech. If it stands, one can interrupt protest of which one disapproves simply by throwing a rock at someone, then fading away, a type of heckler’s veto.
The fear of a lawsuit can be remarkably effective to “chill” speech. Protesters, in general, are not the most powerful or wealthiest segments of society. Rather, they are those who turn to protest because they lack more direct control of governmental apparatus. But if bad actors or provocateurs can turn a peaceful protest into a violent altercation, and fix the blame on protest organizers, free speech now faces an impossible burden. Or to put it another way, those who do control powerful interests can shut down speech with impunity.
The ACLU has filed a “petition for a writ of certiorari” — a request to take up the case at a higher court. The result should be of interest to all who value the right of the downtrodden to object to their treatment.
Jamie LaRue is a former public library administrator, former director of the Freedom to Read Foundation and ALA’s Office for Intellectual Freedom, and a current consultant and speaker.