It’s hard not to smile when unduly passionate ThinkProgress lawyer Ian Millhiser has something nice to say about the First Amendment, because it happens so rarely. Unfortunately, his myopia and disingenuousness got the best of him. Again.
An opinion handed down Wednesday by three Republican judges could chill the First Amendment rights of protesters — and potentially allow police to shut down political movements by filing lawsuits harassing movement leaders.
The United States Court of Appeals for the Fifth Circuit’s decision in Doe v. McKesson effectively strips First Amendment protections from protest leaders who commit minor offenses, ignoring longstanding Supreme Court precedents in the process.
Or the opinion does nothing of the sort, and Ian takes another wild flight of fantasy in condemning “three Republican judges.” The Fifth Circuit opinion reversed a grant of a motion to dismiss on the negligence cause of action, while affirming dismissal on myriad made-up causes that might have warranted Ian’s hype. But the negligence cause of action, based on Louisiana law and before a federal court on diversity jurisdiction, was sufficiently pleaded to withstand a challenge that it failed plausibility.
We first note that this case comes before us from a dismissal on the pleadings alone. In this context, we find that Officer Doe has plausibly alleged that Mckesson breached his duty of reasonable care in the course of organizing and leading the Baton Rouge demonstration. The complaint specifically alleges that it was Mckesson himself who intentionally led the demonstrators to block the highway. Blocking a public highway is a criminal act under
Are these allegations true? That’s for another day, as the allegations set forth in the complaint must be taken as true for the purposes of a motion to dismiss. The allegations put DeRay in the mix of civil disobedience, of committing a criminal act, which is entirely laudable as protests go. But what makes civil disobedience work is that it is disobedience, and those who engage in it are saying they are prepared to accept the consequences because their fight is worth whatever may happen to them.
As such, it was patently foreseeable that the Baton Rouge police would be required to respond to the demonstration by clearing the highway and, when necessary, making arrests. Given the intentional lawlessness of this aspect of the demonstration, Mckesson should have known that leading the demonstrators onto a busy highway was most nearly certain to provoke a confrontation between police and the mass of demonstrators, yet he ignored the foreseeable danger to officers, bystanders, and demonstrators, and notwithstanding, did so anyway. By ignoring the foreseeable risk of violence that his actions created, Mckesson failed to exercise reasonable care in conducting his demonstration.
Is it impossible to be negligent at a protest? Is it impossible to be negligent when leading a protest, when engaging personally in illegal conduct, when leading others to do so? Had this not happened at a protest, the plausibility of the claim would be banal and obvious, but that it occurred in the midst of a protest gives rise to a claim of First Amendment protection.
The Supreme Court has made clear that “[t]he First Amendment does not protect violence.” N.A.A.C.P. v. Claiborne Hardware Co., 458 U.S. 886, 916 (1982). Nonetheless, the district court dismissed the complaint on First Amendment grounds, reasoning that “[i]n order to state a claim against Mckesson to hold him liable for the tortious act of another with whom he was associating during the demonstration, Plaintiff would have to allege facts that tend to demonstrate that Mckesson ‘authorized, directed, or ratified specific tortious activity.’”
The court “disagreed.”
Assuming that the First Amendment is applicable to Mckesson’s conduct, in order to counter its applicability at the pleading stage Officer Doe simply needed to plausibly allege that his injuries were one of the “consequences” of “tortious activity,” which itself was “authorized, directed, or ratified” by Mckesson in violation of his duty of care.
The injury sustained by the then-anon cop, who the court held can no longer proceed anonymously, was from a rock or piece of concrete thrown by a protester which caused significant damage to his shoulder. Not even Ian sees this as a justifiable act.
Doe alleges that the unknown person — who, again, is not DeRay McKesson — “picked up a piece of concrete or similar rock like substance and hurled [it] into the police” that were arresting protesters. Officer Doe claims he was hit by the rock and suffered serious injuries. If true, this rock-thrower’s actions are reprehensible, and whoever threw the rock belongs in prison.
Curiously, Ian has the guy going to prison already, even though he has yet to be convicted of anything. But he has a difficult relationship with due process, like the First Amendment. But it wasn’t DeRay who threw whatever did the damage. Is that where negligence ends and the First Amendment takes over?
Our discussion above makes clear that Officer Doe’s complaint does allege that Mckesson directed the demonstrators to engage in the criminal act of occupying the public highway, which quite consequentially provoked a confrontation between the Baton Rouge police and the protesters, and that Officer Doe’s injuries were the foreseeable result of the tortious and illegal conduct of blocking a busy highway. Thus, on the pleadings, which must be read in a light most favorable to Officer Doe, the First Amendment is not a bar to Officer Doe’s negligence theory.
As law students were once taught in first-year Torts, negligently setting in motion a series of events that are reasonably foreseeable to do harm is sufficient to establish liability. As they were also taught in first-year Con Law, the commission of a crime does not gain cover from the First Amendment’s right of association, even if it’s for a worthy cause.
Will the soon-to-be-revealed copper be able to make his case against DeRay Mckesson, that he personally engaged in criminal conduct and led the protesters into a foreseeably violent confrontation with police, resulting in the plaintiff being injured? Who knows, but that engaging in a violent protest could conceivably invoke Louisiana’s negligence cause of action (and apparently, without a state “Fireman’s Rule” that precludes a cause of action by police or firefighters who are injured in the performance of their duty) just isn’t that much of a stretch.
Still, it’s nice to see Ian mention the First Amendment, to know that he isn’t committed to its total repeal, but just the parts that involve Free Speech and the Free Exercise of Religion.