Free Speech

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.

NEXT: Today in Supreme Court History: December 20, 1976

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  1. I think it turns on the intent of the organizers.

    Holding a demonstration (even illegally on a public street) with posters and chanting, etc., is different than holding a demonstration with pitchforks, torches, gas canisters, etc.

    Posters and chanting is far removed from potential (i.e. foreseeable) violence than pitchforks and torches.

    I see (and somewhat agree) with the case where some people undertake armed robbery – not really planning to kill someone – but someone ends up dead anyway, and everyone (not just the killer) is charged with murder. The “armed” aspect brings it much closer to “foreseeable” violence.

    So it should turn on the actionable intent (i.e. the actions the organizations took [or didn’t take]), not the result of their actions.

    1. But you can end up charged with murder for participating in an unarmed robbery, even if the victim kills one of your group in self defense.

      I think the key intent here is the intent to break the law. As long as you’re operating within the law, you’re good. Once you decide that you’re not going to obey the law, you’re liable if things go south, even if you didn’t intend them to.

      1. What if you intend to scare your neighbor by jumping out from a tree yelling “Boo!”, and he drops a bag of groceries and breaks his eggs? Surely you would be morally responsible for buying replacements, and it seems plausible to me that a mean neighbor could find a way to charge you with some kind of assault or mayhem.

        Now what if it turns out, after the fact, the neighbor had a weak heart and dies from fright? Surely that is foreseeable at low probability.

      2. Check the Felony Murder rule.

        Not sure but is unarmed robbery a felony or a misdemeanor?

        1. It’s a felony in California.

      3. Of course some of us think the felony murder rule is wrong and should just go away.

      4. Brett, that’s a special rule. And indeed, many people don’t like the special intent rules with respect to felony murders and robberies. But they exist because they have a deep common law lineage.

        The normal rules of intentional torts that restrict scienter also have a deep common law lineage.

  2. You’d think this would be ground well traveled by those seeking the foundations for justifying hate speech law.

    1. Why would you think that? Restrictions on “hate speech” rest precisely on the theory that hate speech causes harms because of its content, and the persuasive or offensive nature of that content. If one were to try to justify them on the theory that such speech negligently causes crime (or interferes with its targets’ business relations, or inflicts emotional distress on them), the arguments in part A above should dispose of any such justifications.

      1. They’re certainly on weaker grounds than officer “Doe”, in as much as Unite the Right had a parade permit, unlike the Antifa who attacked them. They might have gone to that protest expecting and prepared for the attack, but their gathering was lawful.

        1. That would set a terrible precedent if successful.

          When scoundrels (Unite the Right idiots) act within the law they are held liable, but when other scoundrels (Antifa idiots) act outside they’re not held liable.

          That would just lead to overall lack of compliance with the law, and if the cities didn’t like it their only recourse would be to unequal application of the law, giving the first type of scoundrels a legitimate complaint to show they’re being oppressed.

  3. Thanks very much for the post on this interesting topic. I think I agree with you on the basic principles, but I’m not sure about their application to McKesson’s case.

    In the two examples you give under B, then defendant’s liability seems unrelated to his speech. Instead, in both cases (renting a venue or organizing a camp) the potential liability flows from the defendant organizing a space for people to attend, and so is akin to premises liability.

    So let’s consider the examples for a defendant who could not have premises liability but instead engages in pure speech. Suppose Anne hears about the political rally at the too-small building and encourages her social media followers to attend to support their political cause, which her followers do and then are burned or crushed to death. Or suppose Bob urges his friends, followers, etc. to attend the poorly policed ideological camp to show solidarity with the cause, and the friends, etc. attend the camp only to be robbed and beaten.

    Could Anne or Bob be liable for negligence consistent with the First Amendment? I would think the answer is “no” for the reasons you explain in A. That is, liability would be inconsistent with Brandenburg, as if one of the listeners in Brandenburg went off to assault black people the Brandenburg defendants could not be liable. And that’s true even though the Brandenburg defendants were encouraging listeners to engage in violent, illegal assaults (at some indefinite point in the future).

    And so for McKesson, he did not own the roads and so cannot have a kind of premises liability. Instead, as I understand the decision, his liability is based purely on his speech–specifically, that he told his followers to occupy the roads. Thus, McKesson’s facts seem more like Anne, Bob, and the speakers in Brandenburg than someone who negligently organizes a rally or camp.

    That said, this doesn’t necessarily mean McKesson should be off the hook. As I thought when first reading this case, and others have brought up in prior threads, McKesson’s speech seems like punishable incitement under Brandenburg IF the incitement exception applies to speech that does not encourage violence or property damage. McKesson knew the group likely would follow his orders, he intentionally directed them to violate the law, and such a violation would be imminent since the highway was close to them.

    But then the question is whether the incitement exception does in fact apply to speech that incites illegal conduct that is neither violent nor damages property. Might be a good topic for another post! Also, the decision in US v. Sineneng-Smith next year might bear on this question.

    1. I dont see the incitement exception wouldnt reach speech intended and likely to incite nonviolent/property damage if NAACP v. Hardware sets out an incitement standard for tortious activity.

    2. I think Anne would in fact be liable, if she hadn’t just urged her followers to attend, but instead had said, “Let’s pack that room solid, fill it to the point where the fire marshals freak because it’s over its occupancy limit!”

      McKesson didn’t just organize a rally. He organized one where it was illegal for a rally to be held. And not arbitrarily illegal, either, illegal for good reasons. That’s the key point here that makes him liable.

  4. If tort liability is precluded for harms stemming from the content of the speech doesnt that render some causes of action toothless?

    Intentional infliction of emotional distress, for instance.
    I tell you (falsely) that your father just got into a car accident for kicks causing you grave emotional distress.
    I post a video of you having sex with your friend’s wife on my prominent blog the resulting emotional distress could stem from the content of my message. I believe in an ideology radical transparency.

    Or does the standard you are articulating only apply to negligence from actions of third parties (which is the impression I got, maybe the Hustler v. Falwell example threw me off)?

    1. Serpico: Check out Snyder v. Phelps and Hustler Magazine v. Falwell, which indeed sharply limit the intentional infliction of emotional distress tort when applied to speech based on its content, at least when the speech is on matters of public concern. Practically speaking, that tort has been eliminated for such public-concern speech, unless it fits within an existing First Amendment exception (such as for true threats of criminal attack).

  5. you ask: “But should First Amendment limit negligence law here…” immediately following the hypothetical trespass/altercation case.

    Can the first amendment rights be fully exercised without trespass, yes.
    Were there any government actors in the hypothetical who were influencing the ability to speak, no
    Was trespass argued to be exigent? no
    Does the first amendment pertain to speech directed at a private entity, no.

    Therefore trespass, and the events that flowed as a natural and predictable consequence, is not excused by defendants raising first amendment as somehow excusing their behavior.

    Does not seem remotely similar to a public road where speech has been deemed protected; give a cop the finger while on foot or in a car – just fine, record as amateur the video or audio of a public encounter – just fine, public roads are areas where free speech is clearly protected at least some of the time.

    1. “Therefore trespass, and the events that flowed as a natural and predictable consequence,”

      That second phrase does not capture the causation element of trespass as I understand it (or if it does, expresses a very narrow causation rule that the trespasser must expect that the special damages be caused by her trespass).

    2. But demonstrations that block public roads are generally not “deemed protected,” unless you get a suitable parade permit (which the government can often deny for a particular place and time, if it’s applying content-neutral criteria).

  6. Ignoring the First Amendment issues for the moment, I think your original example stacks inferences too far.

    – John Smith organizes a protest. (Your hypothetical starts with the protest being an illegal trespass but that’s not necessarily relevant to the negligence claim, I think.)
    – Clinic employees will come out to get protestors to leave (rather than calling their lawyers, the police or simply ignoring the protest). Inference 1.
    – Protestors will decline to leave. Inference 2.
    – Clinic employees will escalate to force which may or may not be lawful depending on the circumstances (rather than calling the police, backing off, etc). Inference 3.
    – Baker will respond with force. Inference 4.
    – The response will be illegal. You might count this as inference 4 but it will likely depend on whether there was provocation at step 4.

    Even if this exact scenario had happened at Smith’s prior protests, the fact that it also fails to happen at some protests (indeed, that hundreds of peaceful protests occur on any given day) is evidence against your hypothesis that the risk is sufficiently foreseeable to count as negligence. Indeed, even if you knew for a fact that Baker was a hothead and likely to overrespond, that does not count as negligence.

    Maybe it would start to count as negligence if you actively and deliberately recruited Baker because of her hotheadedness and if you intentionally did other things to increase the likelihood of a confrontation. But on second thought, maybe not. That sounds closer to incitement than negligence. But if Baker just shows up on her own? I’m seeing too many steps between the protest organizer and the violence. This only appears “natural and predictable” in hindsight.

    1. I am with you. The violence is either a supervening cause or is just not foreseeable. And you don’t even need the First Amendment to get this result- there’s just no tort liability for this sort of thing unless it’s obvious that something the speaker does other than the content of the speech is going to cause a violent act, or, alternatively, if Brandenburg is met.

  7. There are better legal theories than “negligence” – a theory or cause of action which could create liability even for similar conduct during a demonstration which was completely lawful – which would provide a sounder basis for the plaintiff’s complaint.

    A civil conspiracy occurs, according to one definition, when there is an agreement between two or more people to act together to break the law in hopes of achieving even a lawful aim by using unlawful means.

    Under such circumstances, a person who is injured by one party to the conspiracy can sue any one or more members of the conspiracy for all of the damages he suffered, even if the person(s) sued did not directly cause it, and even if it was not reasonably foreseeable.

    Holding a person legally liable for a harm when it occurs as part of a crime is a well-accepted.

    Indeed, under the misdemeanor-manslaughter rule (similar to the felony-homicide rule but applied to lesser crimes), persons who together engage in committing a misdemeanor which results in a death – even if the person charged didn’t directly cause the death, and even if death was not clearly foreseeable – can be found liable for the much more serious crime of manslaughter.

    So, assuming that deliberately blocking traffic, especially in apparent defiance of police orders, constitutes a misdemeanor, the defendant organizer could be found guilty of the serious crime of manslaughter if the projectile had killed the officer rather than simply wounding him.

    Thus if does not seem unreasonable for the law to at least hold the organizer liable for the resulting non-fatal injuries since it was fortunate, for both the officer and the organizer-defendant, that the injuries proved to be non-fatal.

    The Professional Rescuer’s Doctrine appears to apply to injuries caused by negligence, since it says that a rescuer “assumes the risk”; a doctrine and defense applicable to negligence torts, not intentional criminal ones.

    The corresponding defense for intentional torts, whether or not they also constitute a misdemeanor or other crime, is consent, and there is obviously no indication here of consent by the officer.

    Here both the organizer and the thrower were engaged in a conspiracy to engage in an intentional tort (e.g., false imprisonment, since they acted with reasonably certain knowledge that blocking a highway would trap some people in the cars for a period of time) which is also a crime (and therefore may also constitute negligence per se).

    it is also entirely foreseeable that one or more of the conspirators would commit an additional crime (e.g. throwing something at the police, damaging municipal and/or private property, etc.) during the unlawful criminal demonstration.

    So holding that the organizer of a criminal conspiracy is liable for any harms done by the intentional acts of any one of the conspirators, especially if it is both an intentional tort and a crime, and also entirely foreseeable, does not seem to violate the letter or spirit of the Rescuer’s Doctrine, nor seem unfair or inconsistent with established legal principles in this situation.

    It also appears not to violate the First Amendment since it has nothing whatsoever to do with what was said at the illegal protest, nor the cause which motivated the criminal demonstration.

  8. So holding an abortion rally identical in all other ways to your hypothetical, but on the public sidewalk in front of the abortion clinic would preclude liability, because then the only foreseeable injuries come in response to the content of the speech, rather than the mere presence.

    And that would mean that organizing a pro-abortion rally in the abortion clinics parking lot could also lead to liability, at least if the injuries stem from the abortion clinic agents trying to evict their erstwhile supporters, right?

    But how would that work if the abortion clinic agents actively welcome their supporters rally (though were not part of organizing it), and an anti-abortion protest group is organized on the public sidewalk? Assume the anti-abortionists always remain on private property (to exclude any trespass theory), so that the only foreseeable cause of an injury is based on the content of each groups speech (because of they were both pro-abortion no one would expect violence)? No liability for either organizer?

    Now apply this to campus speeches (ex: Ben Shapiro is often charged hundreds of thousands compared to zero for others), no liability, right? Then how can the state actor (the public university) charge a different rate under Forsyth County?

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