Protest marches are one of the quintessential means of promoting social causes or airing societal and political grievances. From the freedom marches of the early 1960s led by Dr. Martin Luther King, Jr., to the Vietnam War protests of the 1960s and early 1970s, to the Iraq War protests of the early 2000s, millions upon millions of Americans have voiced their frustrations with government policy and their hopes of creating more equal rights and a better life.
Unfortunately, such marches – particularly in some areas of the deep South – are in grave peril going forward. All thanks to an appalling, constitutionally corrupt legal decision issued recently by a federal appellate court in Louisiana.
The case involves a protest march condemning police brutality in Baton Rouge, Louisiana in 2016. The event, organized in part by DeRay Mckesson, a prominent racial justice advocate from Baltimore who is associated with the Black Lives Matter movement, unfortunately led to a violent incident. An unknown protestor (it was not Mckesson), threw a rock or other heavy object that struck a police officer in the face, allegedly causing severe injuries to his jaw and perhaps a brain injury. The violence was abhorrent, let there be no doubt.
The officer – referred to as John Doe – sued Mckesson and the Black Lives Matter movement for damages associated with his injuries. The lawsuit describes the Black Lives Matter movement as a violent nationwide conspiracy. But nowhere does the complaint allege that Mckesson urged any of the protestors to commit violent acts. The closest it gets is alleging in the most general sense that Mckesson “was in charge of the protests and he was seen heard giving orders throughout the day and night of the protests,” and further that “he did nothing to calm the crowd and, instead, he incited the violence on behalf of the Defendant Black Lives Matter.”
Nowhere does the complaint assert that Mckesson perpetrated violence himself, nor does it state any facts asserting that McKesson advocated for or incited imminent acts of violence. Rather, it nakedly makes a legal conclusion that he did so.
That, according to the District Court, was insufficient to remove the First Amendment protections for free speech. As the U.S. Supreme Court ruled in 1982 in NAACP v. Claiborne Hardware Co. merely advocating generally for illegal activity – without provoking or inciting imminent acts of violence – is protected speech. And protest organizers using fiery language in speeches to motivate a crowd cannot be held liable for violent acts taken by rogue participants of a protest.
In Claiborne Hardware, a Mississippi chapter of the NAACP hosted a rally in 1966 calling on black people to boycott white-owned stores. Though the rally was intended to be nonviolent, some participants smashed store windows and inflicted other property damage. Merchants successfully sued the organization and numerous individuals for the damage that was caused. After many appeals, the case finally made its way to the U.S. Supreme Court in 1982 (14 years after the rally took place!). Though noting that “The First Amendment does not protect violence,” the Court held that merely advocating for violence – but not provoking or inciting imminent acts of violence – is protected free speech.
In the Baton Rouge case, the District Court dismissed Officer Doe’s complaint in September 2017, finding that Mckesson did not advocate – or make any reference to – violence of any kind.
Officer Doe appealed to the U.S. Court of Appeals for the Fifth Circuit, whose jurisdiction includes Texas, Louisiana, and Mississippi. (The Fifth Circuit is widely considered one of the most conservative federal appellate courts in the country.) The Court sat on the case for a year and a half, and then issued a 3-0 decision reinstating Officer Doe’s lawsuit in April 2017. It found that because Mckesson led demonstrators in a way that was nearly certain to provoke a confrontation with police and did so anyway, he therefore could be held financially responsible for the officer’s injuries.
Then, just last month, one of those judges – Don Willet, a Trump appointee – made a stunning reversal. He issued his own new dissenting opinion finding that, pursuant to the First Amendment, Mckesson’s actions were insufficient to make him liable for the violent act of another because there was no allegation that he deliberately incited the imminent violence that occurred. Still, the other two judges stuck to their guns, and so that ruling is still the law in Texas, Louisiana, and Mississippi.
The potential repercussions of the still-standing Fifth Circuit decision are enormous and have sparked harsh reactions.
Who now will seek to organize a protest when they could be mired in years of expensive litigation because a rogue participant commits an unsanctioned act of violence? As University of Baltimore law professor Garrett Epps noted:
Imagine you want to protest a highway being built near your house. You and your neighbors organize a demonstration. Someone you don’t know throws a rock. Under the negligence rule, you become personally liable for any injuries it causes. It would take a lot of courage to organize protests in a country where that was the rule. A tort verdict, plus lawyers fees, could easily bankrupt an ordinary family.
What many commentators of the Fifth Circuit’s dreadful decision don’t address is that protest march organizers might not even get the opportunity to stage such events in the first place, even if they had the wherewithal to absorb the financial risk.
Why? Insurance. Or, more precisely, the inability to obtain affordable insurance, if any insurance is offered at all.
As one insurance agency accurately noted, “While some protests are small, unplanned gatherings, marches are a different type of gathering. They often require months of advanced planning, funding, and scheduling. Marches are often required by cities and states to have permits, usually requiring a fee and proof of insurance.”
If protest march organizers such as Mckesson could be held liable – as the Fifth Circuit would allow – for unplanned and unwanted violent acts by some participants, Mckesson and his ilk likely would not risk financial ruin to do so.
Consider the case of the City of Cleveland. To host the Republican National Convention in 2016, Cleveland paid $9.5 million to purchase $50 million of protest insurance coverage. Granted, that’s a city insuring itself against potential lawsuits and private property damage claims caused by others during a high profile political event, but the message surely would stun protest organizers of any event, political or otherwise.
If insurance companies are faced with paying damages caused by rogue agents of even established organizations which advocate nonviolence, they will increase the premiums they charge to offer such insurance. Or not offer insurance at all.
No insurance? No permit from the city. Ergo, you cannot hold your protest march.
Law Professor Epps opines that the Fifth Circuit’s decision could especially endanger movements that don’t have widespread popular support:
The danger of cases like [Mckesson’s] is not simply the possibility of local juries turning their ire on unpopular defendants; it is the certainty that this type of lawsuit will impose crippling litigation costs on those defendants. Appellate vindication years later will be of little use; they will likely be bankrupt by then.
Mckesson and his lawyers filed their appeal to the U.S. Supreme Court in December. The Supreme Court should issue a summary reversal of the Fifth Circuit’s opinion with undue haste. If it doesn’t, then historic – or even non-historic – protest marches may fade into oblivion. And free speech would be the ultimate victim.
Robert D. Lystad has been a practicing First Amendment attorney for more than 25 years and is the Executive Director of the Campaign for Free Speech.