First Amendment

5th Circuit judge has 'judicial change of heart' in case that could chill protests

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A federal appeals court decision criticized for its potential to chill protests is no longer unanimous.

The 5th U.S. Circuit Court of Appeals at New Orleans had unanimously ruled in April that a Louisiana police officer could sue the organizer of a Black Lives Matter protest for a serious injury caused when a different protester threw a heavy object, the Advocate had reported at the time.

On Monday, one of the panel members, Judge Don Willett, wrote that he had “a judicial change of heart” and issued a partial dissent. How Appealing and the Volokh Conspiracy noted the Dec. 16 opinion.

The American Civil Liberties Union has asked the U.S. Supreme Court to hear the case, the Washington Post reported Friday. Civil liberties lawyers have criticized the 5th Circuit decision for its potential to chill protests and impact activists’ First Amendment rights.

Willett, an appointee of President Donald Trump, said he had changed his mind on the First Amendment issue.

The officer’s complaint is “skeletal,” and it “does not plausibly assert that [organizer DeRay] Mckesson forfeited First Amendment protection by inciting violence,” Willett said. He cited NAACP v. Claiborne Hardware Co., a 1982 Supreme Court decision. The case held that the First Amendment protects fiery words that don’t provoke or incite acts of violence, Willett said.

Before reaching the First Amendment issue, Willett said, the 5th Circuit should ask the Louisiana Supreme Court whether Louisiana law imposed a duty on the protest organizer to protect the officer from the criminal acts of others.

“If there’s no negligence, there’s no case,” Willett wrote. “And if there’s no case, there’s no need to fret about the First Amendment.”

But Willett did consider the First Amendment ramifications with references to pro-democracy protests in Hong Kong, tea party protests by American colonists, and civil rights marches by Martin Luther King Jr.

Willett wrote: “Dr. King’s last protest march was in March 1968, in support of striking Memphis sanitation workers. It was prelude to his assassination a week later, the day after his ‘I’ve Been to the Mountaintop’ speech. Dr. King’s hallmark was nonviolent protest, but as he led marchers down Beale Street, some young men began breaking storefront windows. The police moved in, and violence erupted, harming peaceful demonstrators and youthful looters alike. Had Dr. King been sued, either by injured police or injured protesters, I cannot fathom that the Constitution he praised as ‘magnificent’—‘a promissory note to which every American was to fall heir’—would countenance his personal liability.”

The officer suing Mckesson had alleged that he did nothing to calm Baton Rouge protesters throwing water bottles and led them onto the highway where he was injured. The protesters were responding to the July 2016 shooting death of Alton Sterling, who was shot by officers investigating a report of a man with a gun.

The 5th Circuit majority responded to Willett in its new opinion, which held that Mckesson’s speech was not necessarily protected by the First Amendment.

“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,” said the majority opinion by Judge E. Grady Jolly.

Claiborne Hardware doesn’t insulate Mckesson from liability for his own negligent conduct simply because he intended to communicate a message, Jolly said.

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