In his last protest march, Martin Luther King Jr. led a parade of protesters down Beale Street in Memphis, lending his support to striking healthcare workers. After some young black men began breaking store windows, the indiscriminate police response killed a suspected looter and injured dozens of protesters.
Under a legal theory blessed by the U.S. Court of Appeals for the 5th Circuit, King could have been held liable for the unforeseen harm resulting from that March 1968 protest, even though he neither directed nor supported any acts of vandalism or violence. The U.S. Supreme Court on Monday declined to review that decision, which threatens to slow the exercise of First Amendment rights by exposing protest leaders to overwhelming civil liability based on conduct beyond their control.
The case involves a lawsuit that blames Black Lives Matter leader DeRay Mckesson for injuries suffered by a police officer during a 2016 demonstration in Baton Rouge after someone threw “a piece of concrete or rock-like object.” who had hit him on the head. . Last June, a divided 5th Circuit panel allowed the lawsuit to proceed on the theory that Mckesson “negligently” staged a protest on the street outside police headquarters when it was “reasonably foreseeable that police would respond and that violence would result.”
That ruling flies in the face of First Amendment principles that the Supreme Court reaffirmed less than two weeks later. In Counterman vs. Coloradoinvolving a man who sent hundreds of disturbing Facebook messages to a local musician, the Court found that simple negligence was not enough to hold him criminally liable for “genuine threats.”
In this context, Justice Elena Kagan said, in the majority opinion, the appropriate standard is recklessness, meaning that “the defendant knowingly ignored the substantial risk that his communications would be viewed as a threat to violence “. This more demanding standard is necessary, she explained, because a negligence test, which does not require awareness of risk, is suited to “discourse in a protected and non-threatening manner.”
Kagan noted that “our inciting decisions require more” than recklessness. “When incitement to disorder is in question, we have spoken in terms of specific intent,” she wrote, acknowledging that “incitement to disorder is commonly a hair’s breadth away from political ‘advocacy.’”
Even when someone endorses unlawful conduct, the Court held in 1969, his or her speech is constitutionally protected unless it is “directed” to incite “imminent unlawful action” and is “likely” to do so. The Court applied this principle in a 1982 case involving a largely peaceful but sometimes violent boycott of white merchants in Claiborne County, Mississippi, launched by the National Association for the Advancement of Colored People in 1966.
Unlike Mckesson, boycott leader Charles Evers had supported the violence, saying, “If we find any of you going into one of those racist stores, we’ll break your necks.” The Court ruled, however, that Evers could not be sued for damages suffered by white business owners.
In light of this precedent, dissenting 5th Circuit Judge Don Willett thought, it is clear that Mckesson cannot be held responsible for someone else’s violence. He warned that the majority’s “new theory of ‘negligent protest’ liability” would “reduce First Amendment protections for protest leaders to a phantom, almost incapable of having real-world effects.”
Such a rule, Willett said, “would weaken America’s street-blocking civil rights movement, imposing a ruinous financial liability on citizens for exercising their fundamental First Amendment freedoms.” You cited King’s 1968 march in Memphis as an example.
There is still time to heed Willett’s warning. As Justice Sonia Sotomayor noted when the Supreme Court rejected Mckesson’s appeal, that decision “expresses no opinion on the merits” of his First Amendment claim, which lower courts can now consider in light of Counterman.
“It is disappointing that the Court did not take the opportunity to put this case to rest,” said David Goldberg, Mckesson’s lawyer. “But I am confident that the Court will ultimately consider and disavow this dangerous rule of law.”
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