You almost never hear a judge say “my bad,” but that is exactly what Fifth Circuit Court of Appeals Judge Don Willett did this week, reversing his opinion in a First Amendment case legal experts say could chill the right to protest.
The case involves activist Deray Mckesson, who was sued by a Baton Rouge, La., police officer after a protester allegedly threw a rock at the cop at a demonstration Mckesson helped lead.
To be clear: Mckesson didn’t direct the unknown protester to allegedly throw the rock—a point on which both Mckesson and the team representing the unnamed officer in the lawsuit (“Officer Doe”) agreed. What Doe’s team successfully argued in front of a three-judge panel was that Mckesson was liable simply because he helped organize the march outside the Baton Rouge Police Department in 2016. To put it another way, Mckesson can be sued because he didn’t prevent the protester from throwing the object (regardless of whether he was even aware of it at the time).
Willett was part of the panel that decided in favor of Officer Doe in April, reports Vox. On Monday, Willett issued a new dissenting opinion laying out the faults of his original decision.
“I originally agreed with denying Mckesson’s First Amendment defense, but I have had a judicial change of heart,” Willett wrote (h/t The Atlantic).
“Consistency is a cardinal judicial virtue, but not the only virtue,” he continued. “In my judgment, earnest rethinking should underscore, rather than undermine, faith in the judicial process. As Justice Frankfurter elegantly put it 70 years ago, ‘Wisdom too often never comes, and so one ought not to reject it merely because it comes late.’”
Willett now argues that activists like Mckesson are protected by lawsuits like Doe’s under the First Amendment.
While there is no question that “Officer Doe can sue the rock thrower,” Willett concludes that “the Constitution that Officer Doe swore to protect itself protects Mckesson’s rights to speak, assemble, associate, and petition.”
That means that police officers cannot chill protests by imputing the actions of third parties to the protest leaders. If protest organizers can be held liable for the actions of people they can’t control, few people will be willing to lead protests because they could potentially be sued for illegal activity committed by anyone at the protest.
The primary issue is that the judges’ first ruling flies in the face of a precedent: the Supreme Court case, NAACP v. Claiborne Hardware (1982), which found “civil liability may not be imposed merely because an individual belonged to a group, some members of which committed acts of violence.”
In order for First Amendments to be overwritten, protected speech has to rise to the level of “incitement”—Doe’s case doesn’t argue this “competently,” Willett wrote.
From Willett’s opinion (emphasis mine):
Not one of the three elements of “incitement”—intent, imminence, likelihood—is competently pleaded here. Nor does the complaint competently assert that Mckesson directed, intended, or authorized this attack. Our Constitution explicitly protects nonviolent political protest. And Claiborne Hardware, among “our most significant First Amendment” cases, insulates nonviolent protestors from liability for others’ conduct when engaging in political expression, even intentionally tortious conduct, not intended to incite immediate violence. The Constitution does not insulate violence, but it does insulate citizens from responsibility for others’ violence.
In fact, the only thing Mckesson did illegally in Baton Rouge, as far as anyone in the case is concerned, is leading marchers onto a public highway—a common practice among protesters. In fact, Willett invoked foundational acts of protest in his dissent, noting that acts like dumping tea into the Boston Harbor, or walking from Selma to Montgomery as did Dr. Martin Luther King Jr. and marchers (an act that also took place on public highways) would not be considered protected speech under this Fifth Circuit’s ruling. Further, if a marcher did so much as jaywalk, King himself could have been sued. (We’ll get back to the jaywalking example in just a moment.)
Unfortunately, Willett’s dissent is still outnumbered by the other two judges (all three are Republican), who wrote the judicial equivalent of “I said what I said” to Willett’s opinion this week. Constitutional law professor Garrett Epps captured the crux of their opinion for the Atlantic (back to the jaywalkers!):
“Imagine protesters speaking out on a heated political issue are marching in a downtown district,” they write. “As they march through the city, a protester jaywalks. To avoid the jaywalker, a car swerves off the street, and the driver is seriously injured. If the dissenting opinion’s interpretation of Claiborne Hardware is correct, the First Amendment provides an absolute defense to liability for the jaywalker in a suit by the driver.” This misstates the facts. There would be no protection for the jaywalker. But the First Amendment would, and should, protect the organizer of the protest. Doe is suing Mckesson because he can’t find the jaywalker.
Mckesson appealed the Fifth Circuit’s decision, which the Supreme Court must now decide if it will hear. If it doesn’t, it will essentially cosign the lower court’s decision, irreparably damaging one of the most essential qualities of American democracy.