First Amendment

Judge Willett's Change of Heart

Upon reconsideration, Judge Willett splits with his colleagues over whether Black Lives Matter activist can be liable for violent protests

|The Volokh Conspiracy |

It' is not often that judges confess error or change their mind, so when they do it's worth taking note. After all, we expect judges to approach cases with an open mind, willing to consider arguments fairly despite any initial skepticism.

Today, the U.S. Court of Appeals for the Fifth Circuit issued a revised opinion in Doe v. Mckesson, a tort suit against activist Deray Mckesson for allegedly inspiring protests that turned violent. The Fifth Circuit is allowing the suit to proceed, but Judge Don Willett has come to believe his colleagues are insufficiently sensitive the First Amendment implications of letting the suit go forward.

His opinion concurring in part and dissenting in part begins:

I originally agreed with denying Mckesson's First Amendment defense. But I have had a judicial change of heart. Further reflection has led me to see this case differently, as explained below. Admittedly, judges aren't naturals at backtracking or about-facing. But I do so forthrightly. Consistency is a cardinal judicial virtue, but not the only virtue. 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."

On the First Amendment question, he writes:

Even assuming that Mckesson could be sued under Louisiana law for "negligently" leading a protest at which someone became violent, the First Amendment "imposes restraints" on what (and whom) state tort law may punish. Just as there is no "hate speech" exception to the First Amendment, "negligent" speech is also constitutionally protected. And under Claiborne Hardware (and a wealth of precedent since), raucous public protest—even "impassioned" and "emotionally charged" appeals for the use of force—is protected unless clearly intended to, and likely to, spark immediate violence. . . .

Holding Mckesson responsible for the violent acts of others because he "negligently" led a protest that carried the risk of potential violence or urged the blocking of a road is impossible to square with Supreme Court precedent holding that only tortious activity meant to incite imminent violence, and likely to do so, forfeits constitutional protection against liability for violent acts committed by others.64 With greatest respect, I disagree with the majority opinion's First Amendment analysis—both its substance and its necessity. . . .

The opinion ends with a flourish:

In Hong Kong, millions of defiant pro-democracy protesters have taken to the streets, with demonstrations growing increasingly violent. In America, political uprisings, from peaceful picketing to lawless riots, have marked our history from the beginning—indeed, from before the beginning. The Sons of Liberty were dumping tea into Boston Harbor almost two centuries before Dr. King's Selma-to-Montgomery march (which, of course, occupied public roadways, including the full width of the bloodied Edmund Pettus Bridge).

* * *

Officer Doe put himself in harm's way to protect his community (including the violent protestor who injured him). And states have undeniable authority to punish protest leaders and participants who themselves commit violence. The rock-hurler's personal liability is obvious, but I do not believe that Mckesson's is . . .

Dr. King's last protest march was in March 1968, in support of striking Memphis sanitation workers. It was prelude to his assassination a week later, the day after his "I've Been to the Mountaintop" speech. Dr. King's hallmark was nonviolent protest, but as he led marchers down Beale Street, some young men began breaking storefront windows. The police moved in, and violence erupted, harming peaceful demonstrators and youthful looters alike. Had Dr. King been sued, either by injured police or injured protestors, I cannot fathom that the Constitution he praised as "magnificent"—"a promissory note to which every American was to fall heir"—would countenance his personal liability.

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  1. I have a couple of questions after reading the decision:

    (1) The majority seems to say that the criminal nature of the protest was essential to the possibility that the defendant breached the duty of care:

    “Blocking a public highway is a criminal act under Louisiana law. See La. Rev. Stat. Ann. § 14:97. Indeed, the complaint alleges that Mckesson himself was arrested during the demonstration. It was patently foreseeable that the Baton Rouge police would be required to respond to the demonstration by clearing the highway and, when necessary, making arrests. Given the intentional lawlessness of this aspect of the demonstration, Mckesson should have known that leading the demonstrators onto a busy highway was likely to provoke a confrontation between police and the mass of demonstrators, yet he ignored the foreseeable danger to officers, bystanders, and demonstrators, and notwithstanding, did so anyway.”

    But this analysis would seem to apply even when a highly charged protest occurs even with proper permitting, i.e. the Charlottesville demonstration. Isn’t it foreseeable that a strongly divisive protest would result in police needing to intervene, thereby subjecting them to violence?

    (2) I didn’t see any discussion of proximate cause. Is that a feature of Louisiana negligence law, or a necessary aspect of third-party negligence claims in general?

    1. Your (1) identifies what is one of the great underdiscussed issues of First Amendment law.

      Everyone knows how Brandenburg, Scales, and Claiborne Hardware apply to advocacy of violence. You need specific intent and imminent likely harm. So if you tell a mob, “go firebomb that building”, we know that’s unprotected. On the other hand, if an abortion protester says “abortion is murder, and the people who perpetrate it deserve to be punished as murderers”, that’s protected, because even though it’s possible for someone to interpret that as calling for abortion doctors to be killed, because murderers get the death penalty, you aren’t going to be able to show that it is likely to cause imminent violence against any doctors (or that it was intended to do so).

      But what about a protest leader that says “go block that highway”? The majority is quite right- blocking highways is quite illegal, in all 50 states. And many First Amendment cases hold that blocking public rights of way is unprotected by the First Amendment. For instance, it is entirely clear in Hill v. Colorado and the other abortion clinic protest cases that if protesters block the entrance or block cars from getting in or otherwise obstruct people from accessing the clinic, they can be arrested.

      But what of advocacy of blocking streets? Brandenburg and its progeny speaks of “imminent lawless action”. Is blocking a street imminent lawless action? Perhaps it is, although you can also argue that the sorts of “lawless action” discussed in the incitement cases was supposed to be something more than what is basically an infraction for jaywalking.

      I don’t think we know the answer to this.

      1. That’s the line I was thinking reading the piece – that a prosecution for solicitation to commit a crime (namely, blocking the street) doesn’t seem to even come close to any constitutional lines.

        But then the question I think should be: once you’ve exhorted a crowd to commit an unlawful act, are you on the hook for actions they take that you didn’t solicit?

        I don’t know the answer to either that or the next analogy, but I think they need to be the same answer.

        Suppose you hire a hit man to murder your wife, which he carries out dutifully. In doing so he a) accidentally hits a pedestrian unintentionally killing him, b) steals your wife’s watch, c) steals the sweater your wife was borrowing from her sister, d) rapes her before killing her. Which, if any, of these can you also be charged with?

        A) is the felony murder rule, which I find abhorrent but seems to apply and cause not other issues (beyond the felony murder rule itself, of course)

        B) I think has to be no, because in a community property state it’s absurd to charge a person with stealing from themselves, the only counter examples coming to mind are about insurance fraud rather than the theft specifically

        C) I think should be no. While you didn’t have any claim on the sweater you also didn’t encourage, solicit, or aid the severing of the sisters right to return of her property in bailment, but an analogy of the felony murder rule may disagree.

        D) is where it’s trickier for me, and the one I think most analogous to this case.

        Thoughts?

        1. I suspect only A, absent a broad enough solicitation statute.

          1. I agree (though I dislike the felony murder rule), but (D) is this case, so you think the panel got it wrong, right?

            1. I think it’s entirely possible the panel got it wrong.

      2. Imagine two people.

        Bob starts a party store. Perhaps even in a bad neighborhood. He can reasonably anticipate that it might be robbed, and somebody might be hurt, even killed, in such a robbery. But, when it comes to pass, he isn’t held legally responsible.

        Steve robs Bob’s party store. Somebody is killed in the course of the robbery, and not even by Steve; Bob shot Steve’s confederate, Nick. Steve is held legally responsible.

        What’s the difference? Bob was just exercising his rights, Steve was committing a crime.

        It’s the same here: Mckesson is responsible because he committed a crime. And not by accident, either. Wanting money, wanting to express your opinion, both these are legal aims. But neither robbery nor protesting in a road are legal means.

        Who chooses illegal means assumes the consequences of those means.

        1. So if Dave, a customer of Bob’s store flees out the back door during the robbery and gets mugged by Fred (who has no connection to Steve) you think Steve should be deemed guilty of mugging Dave?

  2. Black Lives Matter is a terrorist organization. Period. Glad they are being held liable for the direct result of advocating imminent lawless action which is not protected speech. There are many more instances where BLM racists should be prosecuted and held liable. Hopefully this is just the beginning.

    1. To be clear, the panel dismissed the claims against “Black Lives Matter”.

    2. BLM is a failure in that they are largely responsible for the Post-Ferguson crime wave, yes. but this shouldnt let us lose sight of the first amendment interests at stake here.
      How far does the incitement exception extend?

      1. They’re a failure in terms of their original goals, sure. But once they got co-opted by urban gangs, their goal became just getting the cops off the gangs’ turf, and they’ve been moderately successful at that.

        1. co-opted by urban gangs

          Ummm, maybe source your racial boogiemen?

    3. Many abortion protest leaders advocate clinic blockage tactics. Do you believe such advocacy is definitively unprotected speech, as long as it is likely to lead to imminent illegal blockage?

      Or is this a conclusion you reserve only for organizations which protest the police and that you hyperbolicly label as terrorist?

      1. Well there are at least terroristic factions within BLM, but that shouldn’t matter as to an individuals liability unless they commit terroristic acts – that’s the entire point of the freedom of association read into the first amendment (a reading I think necessarily derives from the freedom to assemble)

        But reading his comment more charitably (which I don’t think applies. But otherwise it’s boring) he’s arguing that yes indeed, a pro-life agitator who suggests blockading an abortion factory and directs people on how to make their lawless action more effective is indeed liable for the results of that action and can himself be prosecuted.

        I think that’s right too, though the BLM case at hand is different. In this case the theory of liability isn’t for what is encouraged, but for related acts which might be foreseeable within the context of the actors. After all, BLM asserts that police target them for punitive purposes, and if they believe that it seems absurd to think that the police wouldn’t abuse them in this specific scenario too.

        So in an abortion factory case should the firebrand be liable for the person who commits arson, when he’d only advocated physically blocking the doors? Same question regarding tree huggers who chain themselves to trees to prevent their being harvested (and those who encourage them) – are they liable for the acts of others who sabotage the timber harvesting equipment?

        I think the answer has to be no – you can only be liable for what you solicit/encourage/advise, though including the subtext should also be permitted otherwise “Ya’ll should block the doors because it would be a shame if that building happened to catch on fire” wouldn’t get the right result.

      2. “Do you believe such advocacy is definitively unprotected speech, as long as it is likely to lead to imminent illegal blockage?”

        Yes.

        “hyperbolicly”

        Oh no, someone was hyperbolic on the internet!

      3. What if the abortion protesters form a union?
        Blocking access then becomes legal as picketing?

    4. You should read the opinion. Black Lives Matter is dismissed from the case.

    5. That’s just stupid.

      Try not to be stupid in the future.

    6. Looks like you got triggered, Jimmy.

    7. Given that BLM (which every time I see the initials I think of the Bureau of Land Management) has no formal organizational structure (like the Communist Party, or the Republican Party) it’s hard to describe them as an “organization.” It’s a product of social networking, like Antifa. You can arrest individuals who belong to local BLM or Antifa groups, but you will never be able to stop them as a force.

  3. “abortion is murder, and the people who perpetrate it deserve to be punished as murderers”, that’s protected, because even though it’s possible for someone to interpret that as calling for abortion doctors to be killed, because murderers get the death penalty, you aren’t going to be able to show that it is likely to cause imminent violence against any doctors (or that it was intended to do so).”

    Something about that sounds off, namely that treating someone like a murderer is not itself an endorsement of death. Most murderers are jailed. But it’s kind of hard to talk about people in such terms, advocate the popularization of that idea, and not say that it doesn’t cause violence. If we applied this standard to past events, 1A would have allowed the Nazis to do exactly what they did.

    There is no need to consider intent separate from certain language. The intent is often inherent to the language used.

    1. Calling people murderers is a longstanding rhetorical technique. Everyone knows I have little sympathy fir pro-lifers, but to me, that’s obviously protected speech for the same reason that calling LBJ and other Vietnam War leaders murderers was protected speech, or calling the CEO of a big time polluter corporation would be.

      1. And I’m generally fine with it, but it’s contextual. Rhetoric is not as innocuous as people believe. It’s one thing to be incendiary, but when a sizable minority believes something incendiary to be true, that becomes the impetus necessary to normalize extremism.

        1. I think the reality is that the effect of mass rhetoric is extremely overstated, and one of the reasons why we ended up with Brandenburg v. Ohio is the court system eventually figured that out.

  4. “some young men began breaking storefront windows. The police moved in, and violence erupted”

    I think the violence erupted with the breaking of windows.

    1. Pretty sure you can tell the difference between a property crime and a crime of violence, Bob.

      1. As codified in 18 U.S.C. § 16, the Comprehensive Crime Control Act of 1984 contains a two-pronged definition of a crime of violence. Specifically, the term includes both (1) “an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another”; and
        (2) “any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing any offense.”

        As you can see, a crime of violence includes force against property. I think they broke windows using some type of force.

        1. I stand formally corrected, as a matter of federal law, though I believe that the property bit is included so that robbery is not excluded. Of course, wiki (and my crim law class) have a different definition:
          A violent crime or crime of violence is a crime in which an offender or perpetrator uses or threatens to use force upon a victim.

          I still find it tendentious that you’re using legal formalism to conflate vandalism or malicious destruction with assault or battery.

          But then you’ve always been pretty into extremely harsh justice up to and including torture when it’s not one of your cohort.

          1. Resorting to insult when found to be wrong.

            Tsk tsk.

            Its not just federal law, Ohio defines “offense of violence” as among other things, arson and defines “force” as “any violence, compulsion, or constraint physically exerted by any means upon or against a person or thing”.

            Maybe your law school will give you a refund on your defective crim law class.

            “legal formalism”

            Also called being correct on the law.

            1. I mean, I don’t think much of your moral code, but I don’t know where the insult is.
              Do you remember when we were talking about due process for Gitmo detainees and you advocated for no process and full torture followed by spamming a list of 9-11 victims? I remember.

              Anyhow, I can see why arson is a crime of violence, given the risk.

              But your latest statute shows why you need to see how it operates to really get a sense of what it’s saying. Constraint physically resorted against a thing is violence??

              And regardless, saying ‘I think violence erupted when they started breaking windows’ isn’t a legal statement.
              In plain language, you’re trying to make something violence that is not violent because you don’t like the people doing it.
              I know you don’t much care about principle, but that’s screwed up, Bob.

              1. I know you cry for terrorists. Some moral code.

                Destroying property is violence by any definition, legal or otherwise.

                1. Even the dictionary say you are wrong

                  vi·o·lence
                  /ˈvī(ə)ləns/
                  noun
                  behavior involving physical force intended to hurt, damage, or kill someone or something.

                2. Yep, it’s either ignore due process or I love terrorists.

                  What a cliche you are.

                  I’ll leave you and your violence against objects to your own weird semantics.

  5. Nice publicity dive for Willets, whom I normally like.

    Unless the change of mind changed the case outcome, why bother? This is getting a cert grant.

    1. Because SCOTUS might find his dissent persuasive?

  6. With respect to Judge Willet, I don’t see how the First Amendment even applies in this case. (Allegedly) leading a crowd to block an interstate is not a form of protected expression.I just see a simple negligence case. Did the defendant have a duty to plaintiff, did he breach that duty, and did that breach of duty cause harm to the plaintiff? Those are questions for a fact-finder at trial,

    Civil disobedience, by definition, violates the law, but the offender says he is willing to accept the consequences. If I throw a rock through the window of a government offense, in one sense I am communicating an idea, but I don’t get to evade civil or criminal responsibility just because the act had some expressive elements.

  7. ” If I throw a rock through the window of a government offense, ”

    interesting typo, if it is a typo

    1. It is. Damnit, give us an edit function!

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