During his last protest march, Martin Luther King Jr. led paraded demonstrators down Beale Street in Memphis, lending his support to striking sanitation workers. After a few young black men began smashing store windows, the indiscriminate police response killed one suspected looter and injured dozens of protesters.
Under a legal theory blessed by the U.S. Court of Appeals for the 5th Circuit, King could have been held liable for the unexpected damages resulting from that March 1968 protest even though he did not direct or advocate vandalism or violence. On Monday, the U.S. Supreme Court declined to review that decision, which threatens to undermine the exercise of First Amendment rights by exposing protest leaders to crushing civil liability based on conduct beyond their control.
The case involves a lawsuit blaming Black Lives Matter leader DeRay Mckesson for the injuries a police officer suffered during a 2016 demonstration in Baton Rouge after someone hurled “a piece of concrete or similar rock-like object” at his head. . Last June, a divided 5th Circuit panel allowed the lawsuit to proceed on the theory that Mckesson “negligently” organized a protest on the street outside police headquarters when it was “reasonably expected that police would respond” and that violence would follow’.
This ruling violates First Amendment principles, which the Supreme Court reaffirmed less than two weeks later. In Counterman vs. Coloradoinvolving a man who sent hundreds of alarming Facebook messages to a local musician, the Court ruled that mere negligence was not enough to make him criminally liable for “genuine threats.”
In this context, Justice Elena Kagan said that according to the majority, the appropriate standard is recklessness, meaning that “the defendant knowingly disregarded a substantial risk that his communications would be perceived as threatening violence.” That stricter standard is necessary, she explained, because a negligence test, which does not require an awareness of risk, tends to “chill protected, non-threatening speech.”
Kagan noted that “our sedition decisions require more” than recklessness. “When sedition is involved, we have spoken in terms of specific intent,” she wrote, recognizing that “incitement to disorder is usually a hair’s breadth away from political ‘advocacy’.”
Even if someone condones unlawful conduct, the Court ruled in 1969, his or her speech is constitutionally protected unless it is both “intended” to incite “imminent lawless action” and “likely” to do so. The Court applied that principle in a 1982 case involving a largely peaceful but sometimes violent boycott of white merchants in Claiborne County, Mississippi, that the National Association for the Advancement of Colored People launched in 1966.
Unlike Mckesson, boycott leader Charles Evers had condoned the violence, saying, “If we catch any of you in one of those racist stores, we’ll break your damn neck.” Nevertheless, the Court ruled that Evers could not be sued for damages suffered by white entrepreneurs.
Under these precedents, dissenting 5th Circuit Judge Don Willett thought, it is clear that Mckesson cannot be held responsible for someone else’s violence. He warned that the majority’s “new liability theory of ‘negligent protest’ would “reduce First Amendment protections for protest leaders to a fantasy almost incapable of effect in the real world.”
Such a rule, Willett said, “would have weakened America’s street-blocking civil rights movement and imposed ruinous financial liability on citizens for exercising basic First Amendment freedoms.” He cited King’s march on Memphis in 1968 as an example.
There is still time to heed Willett’s warning. As Justice Sonia Sotomayor noted when the Supreme Court denied Mckesson’s appeal, that decision provides “no opinion on the merits” of his First Amendment claim, which the lower courts may now consider in light of Counterman.
“It is disappointing that the Court did not take the opportunity to end this case,” said David Goldberg, Mckesson’s attorney. “But I am confident that the Court will ultimately consider and reject this dangerous rule of law.”
© Copyright 2024 by Creators Syndicate Inc.
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