The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
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).
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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.