Tag: news

Tuesday, the Fifth Circuit denied rehearing en banc in Doe v. Mckesson, the tort case stemming from a Black Lives Matter protest, but with three interesting separate opinions. (The en banc vote was as close as it could be—an 8-8 tie, which goes against the petitioner.) First, Judge James Ho’s concurrence, which I think is quite right:

[A.] Police officers and firefighters dedicate their lives to protecting others, often putting themselves in harm’s way. These are difficult and dangerous jobs, and citizens owe a debt of gratitude to those who are willing and able to perform them. What’s more, police officers and firefighters assume the risk that they may be injured in the line of duty. So they are not allowed to recover damages from those responsible for their injuries, under a common law rule known as the professional rescuer doctrine.

“The professional rescuer doctrine, the fireman’s rule, is a common law rule that either bars recovery by a professional rescuer injured in responding to an emergency or requires the rescuer to prove a higher degree of culpability in order to recover.” Gallup v. Exxon Corp. (5th Cir. 2003) (collecting Louisiana cases). “The Professional Rescuer’s Doctrine is a jurisprudential rule that essentially states that a professional rescuer, such as a fireman or a policeman, who is injured in the performance of his duties, ‘assumes the risk’ of such an injury and is not entitled to damages”—particularly when the “risks arise from the very emergency that the professional rescuer was hired to remedy.” Gann v. Matthews (La. Ct. App. 2004).

This doctrine would seem to require immediate dismissal of this suit. After all, there is no dispute that the officer was seriously injured in the line of duty—specifically, while policing a Black Lives Matter protest that unlawfully obstructed a public highway and then turned violent. The officer deserves our profound thanks, sympathy, and respect. But his case would appear to fall squarely within the scope of the doctrine.

None of the panel opinions in this case addressed the professional rescuer doctrine, however—presumably because Mckesson never raised it. I imagine that, if given the chance on remand, he will invoke the doctrine at last, and that the district court will terminate this suit (again) accordingly.

Had Mckesson raised this doctrine at an earlier stage in the suit, there would have been no need to answer the more challenging First Amendment questions that now animate his petition for rehearing en banc. But he did not. So, like the panel, I turn to those questions now.

[B.] Because Mckesson has thus far neglected to invoke the professional rescuer doctrine, the panel confronted novel and interesting First Amendment issues that are arguably worthy of rehearing en banc. But I take some comfort in the fact that, upon closer review of the panel opinions, the constitutional concerns that have generated the most alarm may not be as serious as feared.

The First Amendment indisputably protects the right of every American to condemn police misconduct. And that protection secures the citizen protestor against not only criminal penalty, but civil liability as well. See, e.g., NAACP v. Claiborne Hardware Co. (1982).

But there are important differences between the theory of liability held invalid in Claiborne Hardware and the tort liability permitted by the panel majority here. In Claiborne Hardware, the defendants were sued for leading a boycott of white merchants. State courts subsequently held the defendants liable for all of the economic damages caused by their boycott.

Notably, the theory of liability rejected in Claiborne Hardware was inherently premised on the content of expressive activity. If the defendants had advocated in favor of the white merchants, no court would have held them liable for such speech. So the tort liability theory adopted by the state courts necessarily turned on the content of the defendants’ expressive activities. And the Supreme Court rejected this content-based theory of liability as a violation of the First Amendment. See, e.g., id. (“[T]he petitioners certainly foresaw—and directly intended—that the merchants would sustain economic injury as a result of their campaign. … [But t]he right of the States to regulate economic activity could not justify a complete prohibition against a nonviolent, politically motivated boycott designed to force governmental and economic change and to effectuate rights guaranteed by the Constitution itself.”).

By contrast, the theory of liability adopted in this case appears to be neutral as to the content of the Black Lives Matter protest. Unlike Claiborne Hardware, liability here turns not on the content of the expressive activity, but on the unlawful obstruction of the public highway and the injuries that foreseeably resulted. This is an important distinction. As Claiborne Hardware itself observed: “While the State legitimately may impose damages for the consequences of violent conduct, it may not award compensation for the consequences of nonviolent, protected activity.” “Only those losses proximately caused by unlawful conduct may be recovered.”

So in sum: Content-based damages are generally impermissible, as Claiborne Hardware illustrates. But content-neutral rules typically survive First Amendment challenge. See, e.g., Ward v. Rock Against Racism (1989) (“Our cases make clear … that even in a public forum the government may impose reasonable restrictions on the time, place, or manner of protected speech, provided the restrictions ‘are justified without reference to the content of the regulated speech, that they are narrowly tailored to serve a significant governmental interest, and that they leave open ample alternative channels for communication of the information.’ “) (collecting cases).

Applying that framework here, I do not understand the panel majority to suggest that Mckesson may be held liable for lawfully protesting police—that would be a textbook violation of established First Amendment doctrine, including Claiborne Hardware—but rather for injuries following the unlawful obstruction of a public highway. As the panel explained, “the criminal conduct allegedly ordered by Mckesson was not itself protected by the First Amendment, as Mckesson ordered the demonstrators to violate a reasonable time, place, and manner restriction by blocking the public highway. As such, no First Amendment protected activity is suppressed by allowing the consequences of Mckesson’s conduct to be addressed by state tort law.” In the face of such limiting language, any First Amendment concern about the potential reach of the panel majority opinion strikes me as uncertain and speculative.

So if I understand the panel majority’s theory of liability correctly, it may be expansive—and it may be wrong as a matter of Louisiana law, as Judge Higginson’s typically thoughtful dissent suggests. But it applies with equal force to pro-police protestors (just as it would, say, to pro-life and pro-choice protestors alike) who unlawfully obstruct a public highway and then break out into violence. It is far from obvious, then, that the First Amendment principles articulated in Claiborne Hardware would have any bearing here (and we do not ordinarily grant en banc rehearing to resolve questions of state law).

[C.] Civil disobedience enjoys a rich tradition in our nation’s history. But there is a difference between civil disobedience—and civil disobedience without consequence. Citizens may protest. But by protesting, the citizen does not suddenly gain immunity to violate traffic rules or other laws that the rest of us are required to follow. The First Amendment protects protest, not trespass.

That said, this lawsuit should not proceed for an entirely different reason—the professional rescuer doctrine. I trust the district court will faithfully apply that doctrine if and when Mckesson invokes it, and dismiss the suit on remand, just as it did before. It is for that reason that I am comfortable concurring in the denial of rehearing en banc.

Judge James Dennis, joined by Judge James Graves, dissented:

I respectfully dissent from the court’s refusal to rehear en banc a 2–1 panel opinion that not only misapplies Louisiana’s duty-risk analysis, as Judge Higginson’s dissent points out, but also fails to uphold the clearly established First Amendment principles enshrined in NAACP v. Claiborne Hardware Co. Claiborne Hardware reaffirmed this country’s “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open.” Thus, when violence or threats of violence “occur[ ] in the context of constitutionally protected activity, … precision of regulation is demanded,” including an inquiry into whether the defendant “authorized, ratified, or directly threatened acts of violence.” The panel majority demands no such precision. Instead, it appears to apply a free-wheeling form of strict liability having no resemblance to Louisiana law’s careful duty-risk analysis, concluding that, because of his association with the demonstrators or his failure to anticipate and prevent the rock throwing incident, Mckesson can be held liable—despite the First Amendment protection historically afforded protest activity—for the acts of a “mystery attacker.”

The majority of our colleagues have thus grievously failed to do what should have been done: Take up this case, apply the longstanding protections of the First Amendment, and conclude, as the district court did, that Doe’s lawsuit against DeRay Mckesson should be dismissed.

Judge Stephen Higginson, joined by Judge Dennis, also dissented:

The panel opinion holds that the First Amendment affords no protection to McKesson because he was negligent under Louisiana law. I do not believe the Louisiana Supreme Court would recognize a negligence claim in this situation. When a negligence claim is based on the violation of a statute, Louisiana courts allow recovery only if the plaintiff’s injury falls within “the scope of protection intended by the legislature.” An assault on a police officer by a third-party is not the “particular risk” addressed by the highway obstruction statute. Absent the breach of this statutory duty, it is unclear on what basis the panel opinion finds that the protest was foreseeably violent.

To the extent that the panel opinion creates a new Louisiana tort duty, this is “a policy decision” for Louisiana courts—not this court—to make. Even if we could make this policy decision ourselves, the panel opinion does not weigh the “moral, social, and economic factors” the Louisiana Supreme Court has identified as relevant, including “the nature of defendant’s activity” and “the historical development of precedent.”

In light of the vital First Amendment concerns at stake, I respectfully suggest that these considerations counsel against our court recognizing a new Louisiana state law negligence duty here, at least in a case where argument from counsel has not been received. Protestors of all types and causes have been blocking streets in Louisiana for decades without Louisiana courts recognizing any similar claim.

Very interesting stuff, and I’m sure it will be read by the Supreme Court in deciding whether to hear the case. For my thinking on this, see these posts:

1. The Weird Litigation Posture of the Doe v. Mckesson / Baton Rouge Black Lives Matter Protest Case, which deals with the professional rescuer doctrine.
2. Negligence Claims Brought Against Protest Organizers: More on the Tort Law Side of Doe v. Mckesson, which discusses why (apart from the professional rescuer doctrine) the tort law theory behind the case is plausible.
3. When Does First Amendment Preempt Negligence Liability?, which generally argues for the content-based / content-neutral distinction that Judge Ho’s opinion discusses.

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Average life expectancy in America ascended to 78.9 years in 2014, and then it started declining. By 2017, it had fallen to 78.6 years. But now there’s good news: According to the National Center for Health Statistics (NCHS), this downward trend has stopped. In 2018—the latest year for which we have the data—the average life expectancy of Americans ticked back up to 78.7.

In 2017, the Princeton economists Anne Case and Angus Deaton reported that the falling U.S. life expectancy was largely driven by the rising death rate among poor middle-aged whites. They attributed rising mid-life mortality among poor whites to “deaths of despair“—drug overdoses, alcoholic liver disease, and suicides. They also noted that the mortality gap between whites with a college degree and those without was widening.

A 2019 paper in the Journal of the American Medical Association bolstered the deaths-of-despair hypothesis, noting that “the largest relative increases in midlife mortality occurred among adults with less education and in rural areas or other settings with evidence of economic distress or diminished social capital.”

Interestingly, the new NCHS report notes that the death rates “for age groups 35–44 and 55–64 did not change significantly between 2017 and 2018.”

The two chief reasons for the uptick in life expectancy, according to the NCHS, are the first fall in drug overdose deaths since 1990 and the continuing decline in cancer deaths. Another possible factor: The U.S. population-employment ratio has been increasing, which suggests that as more Americans have success in labor markets they may be less despairing about their life prospects.

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I’d like to thank Eugene for inviting me to join the VC, and to my fellow bloggers for having me. I’m really looking forward to posting here!

For my first contribution, I thought I’d post a brief comment about Espinoza v. Montana Dep’t of Revenue, the Blaine Amendment case that the Court currently has under consideration. The Court heard oral argument in the case last week. It’s always tricky predicting the outcome of a case based on oral argument. But it seems pretty clear, at least to me, the the Court will ultimately rule in favor of the petitioners.

Followers of this blog know the facts of the case. (Ilya recently posted about the case here.) Briefly, Espinoza concerns the constitutionality of a Montana school-choice program that allows parents to direct state-funded scholarships to religiously affiliated schools. The Montana Supreme Court ruled that the program violated the state constitution’s “Blaine Amendment,” which prohibits the appropriation of public money for “sectarian” institutions, including private, religiously affiliated schools. Petitioners argue that excluding them from otherwise available scholarship funds, simply because they planned to use the funds at a religiously affiliated school, violates the federal Free Exercise Clause.

Based on the Justices’ interventions, the Court seems likely to rule that, in these circumstances, barring parents from using public funds to pay tuition at religiously affiliated schools is unconstitutional. The Court’s cases point to that outcome. Zelman holds that the Establishment Clause isn’t violated when public money reaches religiously affiliated schools “wholly as a result” of parents’ “genuine and independent choice.” Trinity Lutheran Church holds that a state cannot deny a school access to public financial assistance simply because the school has a religious character. When you put these two cases together, it seems to me, the petitioners prevail.

That’s not to say their victory will be sweeping. For one thing, the Court seems likely to limit its holding to the facts of this case and avoid a ruling on the constitutionality of Blaine Amendments more generally. At least that’s what the Justices’ interventions suggest. Moreover, the four progressive Justices signaled their strong disagreement with the petitioners’ Free Exercise argument.

Interestingly, two of the progressive Justices, Kagan and Breyer, who joined the Court in Trinity Lutheran Church, indicated that they see this case as quite different. Trinity Lutheran Church involved state funds specifically for playground refurbishment–a use unrelated to the religious character of the school in question. Espinoza, by contrast, involves unrestricted funds that a school presumably could direct towards religious education. There is a case that suggests a state may refuse to allow its tax money to be spent for those purposes. But that case, Locke v. Davey, involved tax money for clergy training, not for general education at an accredited, religiously affiliated school–a distinction that will probably persuade the Court’s conservatives that Locke doesn’t apply here.

In short, oral argument suggests another of those familiar, narrow, 5 to 4, Religion Clause decisions. If that’s the case, Espinoza will be an important victory for school choice advocates–though perhaps not as sweeping as they might have hoped. Stay tuned.

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When you put political officials in charge of education, you get politicized education. That point was made recently in an investigation conducted by New York Times correspondent Dana Goldstein into the ideological customization of textbooks for the numerous public schools of California and Texas. Her article is eye-opening, but it’s only the most recent evidence that the line between education and indoctrination is often blurry when government institutions present the world to the children under their control—with conflict as an inevitable result.

“The books have the same publisher. They credit the same authors. But they are customized for students in different states, and their contents sometimes diverge in ways that reflect the nation’s deepest partisan divides,” Goldstein writes.

Side-by-side comparison of the eight textbooks Goldstein examines, all published since 2016, reveal very different takes on hot-button issues including immigration, race relations, sexuality, self-defense rights, and economics.

Interpretations of the Civil War and its aftermath remain divisive:

Southern whites resisted Reconstruction, according to a McGraw-Hill textbook, because they ‘did not want African-Americans to have more rights.’ But the Texas edition offers an additional reason: Reforms cost money, and that meant higher taxes.

Whole paragraphs on redlining and restrictive deeds appear only in the California editions of textbooks, partly as a result of different state standards.

Presentations of free markets and private enterprise are also different in textbooks crafted for different states:

Texas policymakers feel strongly about giving students a positive view of the American economy; since 1995, state law has required that high school economics courses offer an ’emphasis on the free enterprise system and its benefits.’ That emphasis seems to have made its way into the history curriculum as well.

California’s curriculum materials, by contrast, sometimes read like a brief from a Bernie Sanders rally. ‘The yawning gap between the haves and have-nots and what is to be done about it is one of the great questions of this time,’ says the state’s 2016 social studies framework.

California and Texas get customized and very differently spun versions of the same publications because they are large markets with centralized state panels that approve textbook acquisitions. As you would expect, the California panel leans left and the Texas panel leans right.

Given how eye-opening the Times investigation is, it’s ironic that a project by the same newspaper now features in debates over politicized education.

“The 1619 Project—The New York Times Magazine‘s much vaunted series of essays about the introduction of African slavery to the Americas—will now be taught in K-12 schools around the country,” Reason‘s Robby Soave noted just days ago. “Many historians, though, have questioned The 1619 Project’s accuracy. Five of them penned a letter to The New York Times expressing dismay ‘at some of the factual errors in the project and the closed process behind it.'”

Billed as corrective to the long-time glossing-over in American classrooms of the legacy of slavery, The 1619 project tacks far in the other direction, portraying the United States as irreparably stained by racism and the practice of human bondage, and free market economics as rooted in plantation slavery.

“Mandating the use of The 1619 Project in K-12 curricula is at best premature until these issues are resolved and the Times makes a good faith effort to answer its critics,” economic historian Phil Magness told Soave.

The curriculum debates of the moment are only the latest manifestation of years-long disagreements over how the world should be presented to students in the public schools.

“The Texas State Board of Education adopted a social studies and history curriculum Friday that amends or waters down the teaching of the civil rights movement, religious freedoms, America’s relationship with the U.N. and hundreds of other items,” CBS reported in 2010.

Tucson, Arizona public schools sparred with critics for years over a controversial ethnic studies program in a battle that presaged a similar debate in California.

Michigan officials divided over partisan lines when it came to issues including the question of whether students should be taught the U.S. is a “democracy” or a “republic.”

And, famously, battles between classroom advocates of creationism and those of evolutionary theory dragged on for decades, starting at least as long ago as the 1925 Scopes Trial. Lost in most reports about that courtroom drama is that the textbook at issue contained not just now-widely accepted ideas about the natural emergence of humanity, but also some truly awful eugenics nonsense presented as fact.

It’s true that people can differ over interpretations of the world around us without the intervention of government officials—and can do a bad job of it entirely free of bureaucratic directives. Howard Zinn’s A People’s History of the United States is the go-to alternative to history textbooks for lefties. But it’s widely criticized by mainstream educators as at least as spun as—and often less accurate than—many of the works it seeks to counter. And private schools can teach nonsense as readily as public schools; if you want your kids to learn creationism today, plenty of fundamentalist institutions are available to do the job.

But Zinn’s estate offers his take on the world primarily to private buyers who want an alternative to official texts. And church-run schools aren’t subsidized by advocates of evolutionary theory—they charge willing parents the price of admission.

By contrast, government officials with control over public schools and the textbooks they use impose their specific visions of “truth” from the top down on the willing and unwilling alike. Their intent is to ensure that approved takes are fed to all of those young voters of the future. That’s a guaranteed recipe for conflict over what’s taught. Such disputes are so common, in fact, that the Cato Institute tracks them in their multitude on its Public Schooling Battle Map.

If you’re looking for a complete fix for biased lessons, it probably doesn’t exist. School choice is no guarantee that children will learn only accurate information, let alone that they’ll be taught to critically analyze their lessons and accept no source as the final word. No approach is going to reach that high a standard.

But when families choose education options that suit them, and avoid those that don’t, there’s much less reason to fight over what’s taught in the classroom. There’s even a better chance for diverse opinions to flourish and be debated in settings where the stakes are lower.

Don’t worry, we’ll still find plenty of other reasons to argue.

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