Friday, 25 Sep 2020

Violent Protests and Free Speech: Who’s to Blame for an Officer’s Injuries?

WASHINGTON — The lawsuit, a federal judge found, bordered on the delusional. A Louisiana police officer injured in a protest tried to sue the hashtag #BlackLivesMatter, which amounted, wrote Judge Brian A. Jackson of the Federal District Court in Baton Rouge, to picking a fight with an idea. “A hashtag,” Judge Jackson wrote, “is patently incapable of being sued.”

The officer also sued Black Lives Matter, which the judge said was also a nonstarter. It is, he wrote, “a social movement rather than an organization or entity of any sort” that could be a defendant in a lawsuit.

A third part of the lawsuit — seeking to hold a leader of the movement liable for the officer’s injuries — reached the Supreme Court on Friday. Judge Jackson had dismissed that part of the case on First Amendment grounds, but an appeals court revived it, alarming civil rights lawyers and experts on free speech.

The officer, according to a lawsuit in which he was identified as John Doe, was injured in Baton Rouge by a demonstrator who threw a rock that broke the officer’s teeth and left him with injuries to his jaw and brain. The demonstrator has not been found.

The protest, which occurred in the summer of 2016, concerned the fatal shooting of a black man, Alton B. Sterling, by two police officers. The demonstration started peacefully but turned violent.

The officer sued DeRay Mckesson, a Black Lives Matter activist, claiming, without providing details, that Mr. Mckesson had incited the violence that led to his injuries. Mr. Mckesson was present at the protest, which blocked the highway in front of the Police Department’s headquarters, but he did not throw the rock that hit the officer in the head.

Judge Jackson ruled for Mr. Mckesson, saying he was protected by the First Amendment. “Liability may not be imposed merely because an individual belonged to a group, some members of which committed acts of violence,” he wrote, quoting a landmark 1982 Supreme Court decision, N.A.A.C.P. v. Claiborne Hardware Co.

Allowing such lawsuits, Justice John Paul Stevens wrote for the court, would chill free speech rights and hand government officials a powerful tool to suppress the rights of black citizens “to challenge a political and economic system that had denied them the basic rights of dignity and equality that this country had fought a Civil War to secure.”

The federal appeals court in New Orleans reversed the part of Judge Jackson’s ruling concerning Mr. Mckesson, letting the officer’s lawsuit move forward.

“Officer Doe alleges that Mckesson was negligent for organizing and leading the Baton Rouge demonstration because he ‘knew or should have known’ that the demonstration would turn violent,” Judge E. Grady Jolly wrote for a unanimous three-judge panel of the court, the United States Court of Appeals for the Fifth Circuit. That was enough to let the case proceed, Judge Jolly wrote.

“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,” the judge wrote.

Garrett Epps, a law professor at the University of Baltimore, called the ruling an affront.

“The decision was not simply lawless, but insolently so,” he wrote in The Atlantic.

On Friday, the American Civil Liberties Union asked the Supreme Court to hear Mr. Mckesson’s appeal. David Cole, the group’s legal director, said the appeals court had made a grave and dangerous mistake.

“If the law had allowed anyone to sue leaders of social justice movements over the violent actions of others,” he said, “there would have been no civil rights movement.”

The officer’s lawsuit contended that Mr. Mckesson was liable for his injuries by failing “to calm the crowd.”

The one comment from Mr. Mckesson quoted in the officer’s lawsuit did not support the idea that he had incited the violence, Judge Jackson found.

The comment was part of an interview with The New York Times the day after the demonstration. “The police want protesters to be too afraid to protest,” Mr. Mckesson said.

Judge Jackson said the statement was protected by the First Amendment.

“Mckesson’s statement does not advocate — or make any reference to — violence of any kind, and even if the statement did, ‘mere advocacy of the use of force or violence does not remove speech from the protection of the First Amendment,’” Judge Jackson wrote, quoting from the Claiborne Hardware decision. “This statement falls far short of being ‘likely to incite lawless action,’ which plaintiff would have to prove to hold Mckesson liable based on his public speech.”

In its petition seeking Supreme Court review, the A.C.L.U. said the principle announced in the Claiborne Hardware case was “no relic.”

“Indeed,” the petition said, “the rule is of particular value to the rights of protesters — be they same-sex marriage opponents in Berkeley, Calif., or gun control proponents in Boise, Idaho — who take to the streets to persuade their fellow citizens to reconsider locally orthodox opinions.”

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