From Fifth Circuit Judge Don Willett, joined by Judges Carl Stewart, James Graves, Stephen Higginson, Dana Douglas, and Irma Carrillo Ramirez, dissenting on Thursday from denial of rehearing en banc:
The Supreme Court has already called the constitutional issue presented here “undeniably important”: whether the First Amendment tolerates a negligent-protest theory that substitutes the mere foreseeability of a stranger’s violence for intent. After a decade of litigation, full discovery, and another appeal, every threshold obstacle is gone. At last, the question is cleanly presented….
Every obstacle that complicated Supreme Court review in 2020 is now gone. The state-law uncertainty that prompted the Court’s vacatur has been resolved. Discovery is complete. The pleading-stage assumptions have been tested. The district court entered final summary judgment. Counterman intervened, and the panel expressly held that it changes nothing. The en banc court has now declined to intervene.
The constitutional question is therefore squarely presented and unavoidable: may a political speaker be held liable under a negligence theory for an unidentified stranger’s violence without proof that the speaker authorized, directed, ratified, or intentionally incited that violence? Claiborne, Counterman, and Brandenburg answer no. Our court now answers yes….
The Court should grant review and restore the constitutional line between advocacy and violence. Political speakers may be held to account for violence they commit, authorize, direct, ratify, or intentionally incite. But they may not be conscripted as insurers of a crowd—or as substitute defendants for an unknown assailant—simply because they were visible, prominent, and nearest the microphone.
This last paragraph is addressed to the Supreme Court; the opinion, in keeping with frequent legal usage, uses “the Court” to refer to the Supreme Court and “the court” to refer to the Fifth Circuit itself.
And here are some excerpts from the body of the opinion:
Baton Rouge Police Officer John Ford was grievously injured when someone hurled a rock or piece of concrete into his face during a political protest. The assailant has never been identified. Neither has the assailant’s affiliation, motive, or connection—if any—to DeRay Mckesson. Yet today the court sends Mckesson to trial—not because evidence connects him to the assault, but because he was a prominent activist, allegedly helped lead demonstrators into a roadway, and could have foreseen that disorder might follow.
The First Amendment does not permit prominence to substitute for proof. Under NAACP v. Claiborne Hardware Co. (1982), liability for another person’s violence demands proof that the defendant authorized, directed, or ratified the specific tortious activity —or that his speech was directed to inciting or producing imminent lawless action and likely to do so under the demanding rule of Brandenburg v. Ohio (1969). And Counterman v. Colorado confirms why ordinary negligence cannot do that work when legal sanctions burden political advocacy at the First Amendment’s core. Negligence supplies neither personal responsibility nor the culpable mental state the Constitution demands.
The panel reaches the opposite result through four substitutions. An alleged direction to obstruct traffic becomes a direction to assault an officer; prominence in a national movement becomes command of a particular crowd; proximity becomes causation; and foreseeability becomes intent. Those substitutions evade three constitutional requirements: Claiborne demands personal responsibility and direct, proximate causation; Counterman rejects objective negligence and requires a culpable mental state tied to the conduct for which liability is imposed; and Brandenburg requires intent to produce imminent lawless action and a likelihood that the action will occur. The panel supplies none. Together, its substitutions erase the constitutional boundary between advocacy and violence.
Strip away the euphemisms, and the rule is stark: a freestanding tort of negligent protest—liability imposed on Mckesson not for causing Ford’s injury, but for failing to foresee that someone else might cause it.
Nor will the rule remain confined to Mckesson, Black Lives Matter, or protests against police conduct. It will govern every cause and every viewpoint. The most visible speaker may become the ready-made defendant whenever an unidentified person in the crowd—even an interloper or provocateur—turns violent. The predictable consequence is self-censorship. Citizens will think twice before organizing, promoting, attending, or lending their names to public causes. Civil damages can chill political expression as surely as criminal punishment—and often more effectively….
Ford’s injuries are abhorrent. He deserves a remedy from whoever is legally responsible for them. But grievous injury does not relax the First Amendment’s demand for proof. The Constitution does not let courts solve the mystery of an unknown assailant by turning the most recognizable speaker into a substitute defendant.
Those inclined to applaud today’s result should consider how the same rule will operate in tomorrow’s case. Today’s defendant is associated with Black Lives Matter. Tomorrow’s may be a gun-rights advocate, a pro-life leader, a pastor protesting a government mandate, or parents addressing a school-board meeting. Constitutional rules cannot turn on the cause, the crowd, or the speaker. The First Amendment must protect advocacy without regard to whether the cause is popular or unpopular, favored or disfavored. Otherwise, constitutional guarantees become fair-weather guarantees….
Claiborne arose from a civil-damages judgment imposed after a political boycott that included both protected advocacy and violence. The Supreme Court reversed and identified three possible bases for liability: (1) unlawful conduct the defendant personally committed; (2) another person’s unlawful conduct, but only upon proof that the defendant “authorized, directed, or ratified specific tortious activity”; or (3) speech satisfying the constitutional test for incitement.
Those categories enforce a foundational First Amendment principle: association may be collective, but culpability is personal. Membership in a movement, participation in a demonstration, even leadership of a political campaign or rally does not make a person answerable for every unlawful act committed by someone associated with the cause. “Civil liability may not be imposed merely because an individual belonged to a group, some members of which committed acts of violence.”
Ford does not contend that Mckesson threw the rock. No evidence shows that he asked anyone to throw objects, approved the assault, ratified it afterward, or even knew the assailant. The negligence theory instead treats Mckesson’s alleged direction of demonstrators into a roadway as creating a foreseeable risk of violence.
That theory changes the subject—and with it, the constitutional inquiry. The “specific tortious activity” for which Ford seeks damages is the assault that shattered his jaw—not the obstruction of traffic. Claiborne‘s three verbs—authorized, directed, ratified—require a personal nexus between the defendant and the violence of others.They are not satisfied merely because Mckesson allegedly directed demonstrators into the road. Intent to commit one unlawful act does not establish authorization of another person’s violent felony. I previously called this maneuver by its true name: a “negligent protest” theory that lets a stranger’s foreseeable violence stand in for Mckesson’s own wrongdoing.
Our 2023 decision purported to require a “sufficiently close relationship” between the leader’s conduct and the third party’s tort, yet deemed that requirement satisfied whenever a leader negligently created conditions in which injury was likely. That formulation supplies no meaningful boundary. Large demonstrations, marches, labor actions, sporting celebrations, and political rallies all carry some foreseeable risk that an attendee will act unlawfully. If furnishing the occasion for possible violence is enough, Claiborne‘s personal-responsibility rule disappears precisely when it is needed most.
Claiborne itself exposes the gulf. Charles Evers unquestionably led the boycott. His speeches included threatening language, and violence did occur. Even so, the Court refused to hold him liable without proof that he had authorized, directed, or ratified the particular violence at issue. Mckesson’s connection to the Baton Rouge assault is far weaker: the assailant is unknown, and no evidence ties that person’s act to anything Mckesson said or did….
Counterman v. Colorado (2023) identifies a second constitutional defect: Ford’s theory rests on objective negligence untethered to the assault. The panel dismisses Counterman as an inapposite criminal true-threat case. The Supreme Court’s holding concerned true threats, but its reasoning speaks directly to the constitutional problem here.
Counterman rejected objective negligence for threatening speech and required at least subjective recklessness. More important here, the Court distinguished incitement. Incitement decisions “demand more,” the Court explained, because political advocacy lies “a hair’s-breadth away” from punishable incitement. Those cases require specific intent—purpose or knowledge—to prevent legal sanctions from bleeding into “dissenting political speech at the First Amendment’s core.” The Court cited Claiborne as part of that line.
A negligence action arising from a protest against government conduct sits squarely within that concern. The panel’s rule imposes liability without proof that Mckesson intended violence, knew that his own words or conduct would cause it, or consciously disregarded a substantial risk that they would do so. It asks only whether a reasonable person should have foreseen some confrontation at some point.
That is the very objective-negligence standard Counterman rejected, applied in a setting where the Court said the Constitution demands more protection, not less. Counterman does not mechanically convert every First Amendment case into a true-threat prosecution. It does, however, foreclose the premise underlying our 2023 decision—that protest-related speech may support liability for another person’s violence with no “intent condition.” …
The panel says Counterman is satisfied because a jury could find that Mckesson intended “disorder” when he allegedly directed people into a public street. The panel invokes the right mens rea but attaches it to the wrong act.
The required mental state must attach to the violence for which Ford seeks damages—a rock thrown into his face, not delayed traffic. Intent to obstruct traffic is not intent to shatter an officer’s jaw. Proof that Mckesson intended civil disobedience does not show that he intended, knew of, or consciously disregarded a substantial risk of this particular assault by an unknown person. Otherwise, any intent to violate a minor law during a protest would expose the speaker to liability for every foreseeable crime that followed….
Judge James Ho disagreed, and wrote a short opinion concurring in the denial of rehearing en banc:
The dissent calls for principled enforcement of the First Amendment: … “The First Amendment must protect advocacy without regard to whether the cause is popular or unpopular, favored or disfavored.” I certainly agree: “Popular speech doesn’t need protection. It’s only when speech is unpopular that you need the First Amendment.” … So our rulings must be scrupulously viewpoint neutral….
Where I ultimately part company with my distinguished dissenting colleague is that, unlike him, I see no violation of viewpoint neutrality in this case—only the dutiful application of a simple principle: “The First Amendment protects protest, not trespass.” This principle “applies with equal force to pro-police protestors” (or to, say, “pro-life and pro-choice protestors alike”) “who unlawfully obstruct a public highway.” And Plaintiff has presented ample evidence for a jury to put this case in the category of trespass, not protest—as our court has already detailed on more than one occasion.
And an excerpt from the 2023 panel majority in the case, which set forth the First Amendment rule followed by the panel opinion that was the subject of the en banc call; it’s written by Judge Jennifer Walker Elrod, joined by Judge Grady Jolly:
[T]he negligence theory Doe pursues fits quite comfortably into two of the theories for protest-leader liability identified in Claiborne.
First, Doe plausibly alleges that Mckesson “directed … specific tortious activity” insofar as Doe contends “that his injuries were the result of Mckesson’s own tortious conduct in directing an illegal and foreseeably violent protest.” Claiborne reaffirmed that the First Amendment does not prohibit States from imposing tort liability even if the tort occurs in the context of expressive activity. The conduct the State deems unlawful here—creating unreasonably dangerous conditions—is a quintessential tort. Plainly that is within the scope of “tortious activity” contemplated by the Claiborne Court
The only other thing required for this cause of action to accord with the First Amendment is that it be sufficiently tailored to target the tortious activity without sweeping up legitimate expressive conduct…. [W]e are confident that Doe’s negligence theory satisfies that requirement.
Start with the “breach” element. The State of Louisiana does not put ordinary protest leaders at risk by recognizing that Mckesson’s actions fell below a reasonable standard of care. On the contrary, Doe has alleged that Mckesson created unreasonably unsafe conditions in at least three significant respects. First, he organized the protest to begin in front of the police station, obstructing access to the building. Second, he personally assumed control of the protest’s movements, but failed to take any action whatsoever to prevent or dissuade his fellow demonstrators once they began to loot a grocery store and throw items at the assembled police. And third, Mckesson deliberately led the assembled protest onto a public highway, in violation of Louisiana criminal law.
Plainly the State has a strong interest in preventing unreasonably dangerous conduct such as this. But neither does that standard unnecessarily sweep in expressive conduct. Protest leaders who organize their demonstrations with at least a minimal level of care will not be responsible for any actions taken by rogue participants.
And then there is the cause-in-fact requirement. It is not enough that Doe show that Mckesson breached his duty of care—he must also prove that Mckesson’s actions were a necessary antecedent to Doe’s injuries. Restated, Doe must prove that he would not have been injured but for the manner in which Mckesson organized and led the protest. That is a tall task, and the standard will only be met in the exceptional cases where, as here, the well-pleaded allegations support the inference that the leader’s specific actions caused the plaintiff’s injuries.
To recap, where a defendant creates unreasonably dangerous conditions, and where his creation of those conditions causes a plaintiff to sustain injuries, that defendant has “directed” his own “tortious activity” for purposes of Claiborne. In these circumstances, imposing liability goes far more to preventing tortious conduct than it does to suppressing any legitimate expressive activity. The cause of action therefore satisfies Claiborne‘s demand for “precision of regulation.”
The dissenting opinion reads Claiborne as limiting the authorize/direct/ratify theory of liability to torts committed by someone other than the defendant, but that reading conflicts with settled First Amendment law. It is well-established that expressive activity is not a defense to an individual’s own unlawful conduct. It follows that a protest leader who commits a tort cannot avoid liability for that tort merely by pointing to his participation in a protest. Doe may pursue claims against Mckesson even though the latter did not throw the projectile because, according to the complaint, Mckesson committed an intendent tort that caused Doe’s injuries.
In addition, the dissenting opinion contends that Mckesson cannot be held liable for his unviolent conduct because the Supreme Court declined to impose liability on Evers in Claiborne. But that fails to account for the significant differences between Claiborne and this case. First, according to the allegations, Mckesson had a closer connection to the unlawful components of the protest than Evers did. Mckesson personally led the protest in the field and directed its movements. To be sure, Evers was a protest leader and gave various speeches relating to the boycott. But it was never alleged that Evers actually participated in the particular activities that became unlawful. And so although Evers “led the protest,” he did so in a manner that is legally distinguishable from how Mckesson led the protest at issue here.
Second, and relatedly, Mckesson is alleged to have caused the protest to become unlawful more directly than did Evers. Perhaps, as the dissenting opinion says, the protest in Claiborne was “foreseeably violent,” but the evidence failed to attribute the foreseeability to Evers. Here, by contrast, Mckesson’s organization and operation of the protest in an unsafe manner directly created foreseeable violent conduct. Contrary to the dissenting opinion, there is no tension between the result here and the one in Claiborne….
The negligence cause of action at issue is also consistent with the second theory of protest-leader liability identified in Claiborne. The Court explained that a protest leader could be liable for his actions where it was shown that he or she “were likely to incite lawless action,” and that “unlawful conduct … in fact followed within a reasonable period.” That is precisely what Doe alleges Mckesson did here. That is, Doe contends that Mckesson organized and directed the protest in an unsafe manner such that it was likely that a violent confrontation with the police would result, and in fact did result. To be sure, this liability theory is seen more commonly in the context of allegedly inciteful speech. But it logically includes other actions tending to incite unlawful behavior.
A close example is National Organization for Women v. Operation Rescue (D.C. Cir. 1994). That case involved a series of protests of clinics that perform abortions. Pro-life demonstrators obstructed access to and physically blockaded several clinics, sometimes involving trespass on and damage to private property. Based on a combination of Virginia state law and federal law, the district court enjoined the protesters from engaging in such behavior, as well as from taking any actions that would incite such behavior. In an order clarifying its injunction, the district court explained that the protesters were prohibited from “specifically planning and organizing unlawful blockades.” The protesters initially declined to comply with the injunction, and so the district court held them in contempt and imposed monetary sanctions.
Pertinent here, the D.C. Circuit upheld the injunction and sanctions over the protesters’ objection that the orders violated the First Amendment as understood in Claiborne. In doing so, the court carefully distinguished between actions that encourage legitimate expressive activity, which are protected by the First Amendment, and actions that provide for unlawful behavior, which are not. State law may not prohibit “the organizing of lawful demonstrations which may ultimately include unauthorized unlawful acts.” But “[i]t is well settled that incitement to specific unlawful acts may be prohibited without running afoul of First Amendment guarantees.”
This case would be different if all Mckesson had done was organize a lawful protest, and if an unidentified protester had nonetheless assaulted Doe. But that is not what Doe alleges happened. Rather, Doe alleges that Mckesson organized and led the protest in such a manner that his actions “were likely to incite lawless action.”
As described above, these alleged actions include directing the protesters to obstruct a public highway, organizing the protest to begin in front of the Baton Rouge police station, and doing nothing to discourage the demonstrators from looting a grocery store and throwing water bottles at the police, despite Mckesson’s allegedly exercising some degree of direction and control of the protest. And as is clear from Doe’s injuries, “unlawful conduct … in fact followed within a reasonable period.” As explained above, Doe’s allegations fit within the “directed, authorized, or ratified” theory set forth by the Supreme Court in Claiborne. In addition, for the reasons discussed here, the allegations also fit within the “likely to incite lawless action” theory….
The post Fifth Circuit Judges' Cert. Petition in Deray Mckesson Black Lives Matter Protest Liability Case appeared first on Reason.com.
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