A Stunning Vote Reversal in the DeRay Mckesson' First Amendment Case

By Garrett Epps, The Atlantic

19 December 19

A Fifth Circuit panel judge has changed his mind about DeRay Mckesson’s liability for violence at a Baton Rouge protest, but Americans’ right to protest is still under assault.

n America, political uprisings, from peaceful picketing to lawless riots, have marked our history from the beginning—indeed, from before the beginning,” wrote Judge Don R. Willett of the Fifth Circuit Court of Appeals in a remarkable opinion issued Monday. “The Sons of Liberty were dumping tea into Boston Harbor almost two centuries before Dr. King’s Selma-to-Montgomery march (which, of course, occupied public roadways, including the full width of the bloodied Edmund Pettus Bridge).”

The allusion to unruly protest is not what is remarkable about Willett’s opinion. That sort of talk is black-letter, almost boilerplate judicial language about First Amendment protection for political protests that edge up to, or even into, violence in the streets.

What is remarkable is that Willett wrote it in a surprise opinion, changing his vote in one of the most important First Amendment cases now pending in front of the Supreme Court—Mckesson v. Doe, in which a Louisiana police officer is attempting to impose possibly ruinous tort damages on DeRay Mckesson, a national leader of Black Lives Matter. Doe (who is proceeding under a pseudonym) claims that Mckesson owes him damages because the officer was injured in a protest outside the Baton Rouge Police Department on July 9, 2016. During that protest, someone in the crowd threw a hard object that injured the officer. Mckesson was present that night, but Doe doesn’t claim that Mckesson threw the object; instead, he claims—in defiance of Supreme Court precedent—that Mckesson owes him damages because the civil-rights leader did not prevent the nameless protester from throwing the object.

This is a theory of liability unknown to the First Amendment. In an important case arising from the civil-rights movement, the Court held in 1982 that protest leaders can’t be sued for the violent actions of others unless the plaintiffs can show that the leaders themselves either engaged in violence or incited or directed the violence. Doe alleged “incitement,” but made no real attempt to show it.

The First Amendment and civil-liberties communities were shocked by the Fifth Circuit’s original decision, issued in April, which brushed aside the First Amendment with the breezy bromide that “the First Amendment does not protect violence.” The decision was unanimous—Willett was on the panel, but the opinion was written by Judge E. Grady Jolly. (Judge Jennifer Walker Elrod was the third member.) That opinion was a dagger pointed at the heart of the treasured American right to protest against government action. If protest organizers can be sued, and possibly ruined, by lawsuits if anyone at their protest (even, say, an undercover police officer) turns violent, no ordinary citizen would dare organize protests.

Mckesson’s lawyers asked the Fifth Circuit to rehear the case en banc (as a full court); in response, the same panel withdrew its original opinion and substituted a new one that said, in legal verbiage, “We agree with ourselves and by golly, we are right.”

The case landed in the Supreme Court’s inbox on December 6. Mckesson’s petition for the Court to hear the case, written by lawyers from the American Civil Liberties Union, pointed out that the Fifth Circuit panel decision flatly defied the Court’s own precedent in a landmark case called NAACP v. Claiborne Hardware. Advocates of free speech were holding their collective breath waiting to see whether this Court, which preens as a First Amendment champion when the rights of corporations or the rich are at issue, would call out the wayward panel or silently ratify its radical change in the law.

The latter course just got harder. Willett, a Trump appointee and former Texas Supreme Court justice, has now changed his vote and issued a full-throated defense of the idea that free speech covers even unruly protest.

“I have had a judicial change of heart,” Willett wrote. “Admittedly, judges aren’t naturals at backtracking or about-facing. But I do so forthrightly. Consistency is a cardinal judicial virtue, but not the only virtue. In my judgment, earnest rethinking should underscore, rather than undermine, faith in the judicial process. As Justice Frankfurter elegantly put it 70 years ago, ‘Wisdom too often never comes, and so one ought not to reject it merely because it comes late.’”

The words are true, and the practice of judicial self-examination is, while not unheard-of, regrettably rare. In this case, reexamination led Willett to see two gaping holes in the majority’s case. First, he pointed out, despite the panel’s earlier decision, it’s not clear that even Louisiana tort law would support a lawsuit against Mckesson. To reach that conclusion, the panel had to, in essence, make new Louisiana state law. Every second-year law student knows that is a practice courts of appeals are supposed to avoid—especially when doing so creates a federal constitutional issue.

Willett further wrote that, having insisted on reaching the free-speech issue, the panel botched that as well. Doe’s complaint alleged that Mckesson “incited” the violence that led to Doe’s injuries. But Doe’s lawyer didn’t even bother to explain how. As Willett put it:

Not one of the three elements of “incitement”—intent, imminence, likelihood—is competently pleaded here. Nor does the complaint competently assert that Mckesson directed, intended, or authorized this attack. Our Constitution explicitly protects nonviolent political protest. And Claiborne Hardware, among “our most significant First Amendment” cases, insulates nonviolent protestors from liability for others’ conduct when engaging in political expression, even intentionally tortious conduct, not intended to incite immediate violence. The Constitution does not insulate violence, but it does insulate citizens from responsibility for others’ violence.

Judges Jolly and Elrod also issued a new opinion taking issue with Willett’s defection.“Imagine protesters speaking out on a heated political issue are marching in a downtown district,” they write. “As they march through the city, a protester jaywalks. To avoid the jaywalker, a car swerves off the street, and the driver is seriously injured. If the dissenting opinion’s interpretation of Claiborne Hardware is correct, the First Amendment provides an absolute defense to liability for the jaywalker in a suit by the driver.” This misstates the facts. There would be no protection for the jaywalker. But the First Amendment would, and should, protect the organizer of the protest. Doe is suing Mckesson because he can’t find the jaywalker.

Willett’s dissent is a sign of life for old First Amendment precedents. It reveals how poorly Doe argued his rather weak case, how cavalierly the original opinion treated the Constitution, and how hard the result is to defend, even to a conservative judge like Willett. However, the majority’s opinion still stands, and, as David Keating of the Institute for Free Speech told me, “still poses a huge threat to political speech.”* But, he continued, “now there’s more hope it will soon be set aside.” Alex Abdo of the Columbia University Knight First Amendment Institute agrees: “While it is encouraging that Judge Willett has recognized that the First Amendment protects DeRay Mckesson’s right to engage in nonviolent political protest, it remains profoundly discouraging that the majority opinion has allowed the case against Mckesson to proceed.”

The switch provides an excellent opportunity for the Supreme Court, with all deliberate speed, to issue a summary reversal of the Fifth Circuit decision and enter judgment, then and there, for DeRay Mckesson. It should not merely vacate and remand the case. Willett’s defection is heartening, but this Fifth Circuit panel still threatens to trammel Americans’ right to protest.