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When Does the First Amendment Preempt Negligence Liability?

More on Doe v. Mckesson, the Baton Rouge Black Lives Matter case.


I blogged yesterday about the tort law questions raised by Doe v. Mckesson. As I understand it, DeRay Mckesson has a total defense to the lawsuit against him, simply because it was brought by a police officer and the Professional Rescuer's Doctrine thus applies—it's just that Mckesson's lawyers haven't yet raised that argument. But if the lawsuit weren't brought by a police officer, then there would have been a solid case for allowing the case to go forward on a negligence theory. The example I gave was this:

Say that John Smith organizes an illegal protest in an abortion clinic's parking lot—illegal because it's a trespass (analogously to how Mckesson's protest was, according to the Fifth Circuit, plausibly pleaded to be an illegal blocking of a public street). Unsurprisingly, and thus foreseeably, some clinic employees come out to try to get the protesters to leave, and even use lawful defensive force (pushing) to eject the protesters. Unsurprisingly, and thus equally foreseeably, one of the protesters (Mary Baker) punches the employee who is pushing him. (Indeed, perhaps this has happened before at this group's protests, so it is indeed foreseeable.)

But should First Amendment limit negligence law here, as it has limited the torts of libel, intentional interference with business relations, intentional infliction of emotional distress, and the like? That turns out to be a complicated question, which the Supreme Court hasn't addressed, and which lower courts have occasionally touched on but haven't fully resolved. Let me offer some tentative thoughts (the embryo of a law review article I'm planning).

[A.] Negligence claims sometimes must be sharply constrained by the First Amendment. Say, for instance, an author with a huge readership harshly condemns some group (capitalists, Communists, Jews, blacks, whites, police officers, abortion providers, etc.), in a way that foreseeably leads some listeners to attack members of that group, or perhaps vandalize their property.

Under standard negligence principles, one can imagine an injured party suing the speaker for that: The speaker's speech has foreseeably caused a harm. That the harm came through the voluntary act of a third party doesn't block liability, so long as that act was foreseeable (see my earlier post). Therefore, tort law might suggest, a jury should decide whether the speaker was acting unreasonably in giving his speech.

Yet the First Amendment can't allow that, because Brandenburg v. Ohio holds that even speech that incites some listeners to violence is constitutionally protected unless it is intended to and likely to cause imminent criminal conduct. (NAACP v. Claiborne Hardware Co. applies that to civil liability as well.) Thus, a mere showing that the speaker was negligent can't be enough to strip the speech of First Amendment protection. (Lower courts have indeed so held as to movies about crimes that supposedly led to copycat crimes.) Likewise, even a showing that the speaker intended to cause violence at some unspecified future time can't be enough.

We also know from Claiborne Hardware that even speech that is intended to persuade people to stop doing business with someone can't lead to liability as intentional interference with business relations (unless the speech rises to the level of unprotected incitement or true threats or libel). Thus, a showing that the speaker merely negligently interfered with business relations can't be enough, even if state law authorizes such a recovery.

One can say the same about speech on matters of public concern that is so offensive that it negligently emotionally distresses listeners (see Snyder v. Phelps). And just as parade organizers can't be required to pay a security fee that's based on how controversial the parade's message is (Forsyth County v. Nationalist Movement), because then "Those wishing to express views unpopular with bottle throwers … may have to pay more for their permit," so they can't be held liable for damage caused by the bottle throwers' hostility to the parade's message.

[B.] But negligence claims sometimes are quite permissible under the First Amendment. Say, for instance, that someone organizes a political rally inside a building—but lets in more people than the room can handle. There's a fire (or some other foreseeable hazard), and people panic. Some people criminally trample others to death in trying to escape. The organizer may well be liable under standard negligence principles: His actions helped create a foreseeable risk of this injury (even though the injury also stemmed from the criminal actions of others); and a jury may well decide that the actions were negligent.

Nor do I see why the First Amendment should preclude such liability. It certainly shouldn't preclude liability if this were a concert or a movie showing rather than a political rally, even though concerts and movies are just as protected as rallies, including political ones (see Winters v. New York). Likewise, it shouldn't preclude liability for political events. You are free to put on an event expressing whatever viewpoint you like. But you need to act reasonably in ensuring, for instance, that your crowd is no larger than the venue (even though that might mean you have to have a smaller audience, or spend more to rent a larger auditorium).

Or say that a political or religious organization runs an ideological summer camp for college students. And say that under state law all such camps, like other resorts and hotels, can be sued for negligently failing to protect guests from crime (as a matter of premises liability). I don't think the organization could escape liability on the grounds that it uses the camp to spread a First-Amendment-protected message. The same would be true for negligent hiring liability for political organizations who hire people with criminal records who then foreseeably attack the organizations' visitors. And it would be true for a wide range of other standard negligence lawsuits that can be brought against all organizations, ideological or otherwise.

[C.] The distinction, I think, turns on whether the allegedly negligently caused harm stemmed from the content of the speech. In the examples in Part A, the organizer of the speech caused harm because the speech persuaded people, or perhaps because its content offended them. There, negligence law was operating, in effect, as a content-based speech restriction. But in the examples in Part B, the organizer of the speech caused harm (or, in the camp example, failed to prevent harm that a landowner has a duty to try to prevent) that stemmed from matters unrelated to the content of the speech—negligence liability should be allowed there.

And this, I think, mirrors how other torts are treated. Claiborne held that a group can't be liable for intentional interference with business relations simply because their speech persuades people to stop doing business with the plaintiff. But say that instead the NAACP organized demonstrations on the sidewalks in front of a store that physically blocked the store. That, I think, would indeed be actionable intentional interference with business relations, precisely because the harm stems from reasons unrelated to the content of the NAACP's message.

Likewise, Snyder (and before that, Hustler v. Falwell) held that defendants can't be held liable for saying severely emotionally distressing things about the plaintiff. But say that instead the defendants organized a demonstration that used bullhorns outside the plaintiff's home at midnight, and kept the plaintiff from sleeping. I don't think Snyder or Hustler would preclude liability for that, because the harm in that situation would again stem from reasons unrelated to the content of the message.

Now content-neutral restrictions aren't categorically immune from First Amendment scrutiny—they are constitutional only if they leave open ample alternative channels, and pass a relatively mild form of intermediate scrutiny. The same is true for content-neutral applications of negligence law. Any protest, even one where the organizers don't deliberately organize trespassing or blocking highway entrances, creates some risk of physical harm, whether from deliberate misconduct by a few participants or from other causes (such as distraction of drivers). Finding the protest organizers negligent simply because they create this risk would be unconstitutional, I think, precisely because it doesn't leave open ample alternative channels: If that were the rule, a protest organizer couldn't safely organize any protest.

But finding the protest organizers negligent for, say, packing too many people in a room does leave open ample (though not perfect) alternative channels. And in any event, content-neutral applications of negligence law, like content-neutral speech restrictions, should be much easier to justify than content-based ones.

[D.] Where then does the modified Doe v. Mckesson hypo fit? Categorizing John Smith's protest is complicated. On one hand, the risk of violent scuffles with abortion clinic employees might be exacerbated by the fact that Smith's message is sharply hostile to abortion clinics (and thus might move some of the protesters to violence), and it also draws people who are sharply hostile to abortion clinics.

But on the other hand, protesting on someone's property creates a risk of violence regardless of one's hostility to the people who might chase you out: When you organize people to break the law by going to a place where they have no right to be, and where someone will therefore foreseeably take steps to eject them, you're creating a baseline level of risk of foreseeable scuffles and resulting injuries entirely apart from the content of your message.

Your right to protest doesn't give you the right to protest on an abortion clinic parking lot, or on a public street (at least unless you have a suitable parade permit that has blocked the street off for your use at a particular time and place), entirely apart from the content of your protest. I don't think it gives you the right to be immune from liability for the foreseeable injuries that stem from the lawful attempts to eject your followers—just as you have no right to be immune from liability for the foreseeable injuries that stem from your inviting too many people to the rally inside a building, or not providing adequate security at your ideological summer camp, or hiring violence-prone people in your ideological organization

I can see the appeal of a rule that is more protective of the speech organizers. Perhaps categorical immunity from negligence liability (at least as to the criminal acts of third parties) is necessary to minimize the chilling effect on the organizers. Indeed, perhaps that's true even if the organizers are deliberately orchestrating minor crimes, such as trespassing or blocking building entrances or blocking streets: Though such conduct can lead to modest criminal punishment (for the organizer who deliberately plans it as well as for the other participants), perhaps it shouldn't lead to potentially vast civil liability. I take it that this is the view that many people have with regard to sit-in protests and the like, even ones where the sit-in is clearly illegal trespassing. Or perhaps negligence claims, with their general "reasonableness" inquiry, are too hard to keep reliably content-neutral.

But I don't think the First Amendment commands such a rule, at least when the organizer's actions is claimed to be negligent for reasons unrelated to the content of the speech. Among other things, note that protesters are no more protected by the First Amendment than other speech organizers: A concert or a religious retreat or a speech in an auditorium is on the same constitutional footing as an outdoor protest.

If John Smith or DeRay Mckesson is immune from foreseeable injuries that flow from his orchestrating criminal trespassing or street-blocking—and that flow not from the persuasive or offensive nature of his speech, but from the physical presence of his followers where they have no right to be—then the concert organizers or summer camp organizers would likewise be immune from their negligence (especially when that negligent conduct may not itself even be criminal).

Nor can Smith or Mckesson get First Amendment immunity on the grounds that their rallies are free to attend, while the concert or indoor rally or summer camp might require paid tickets: "the degree of First Amendment protection is not diminished merely because the … speech is sold rather than given away." It seems to me that either all these speech organizers are potentially subject to content-neutral negligence claims or all are immune from them. And I'm inclined to say that the First Amendment doesn't require such immunity.

Again, this is my tentative thinking on the subject, and I might well be mistaken. But I hope that some of these examples are useful for people who are thinking through this, and that the distinction between negligence claims that turn on what the speech communicates (part A) and negligence claims that apply apart from what the speech communicates (part B) is helpful as well.