The American Civil Liberties Union is asking the U.S. Supreme Court to overturn a ruling affecting the right to protest across the nation. The 5th Circuit U.S. Court of Appeals held that a Black Lives Matter leader was liable for leading a demonstration that blocked a highway during which one of the protesters threw a rock that injured a police officer. (The Washington Post, December 13, 2019, by Marissa J. Lang)
Law professor Garrett Epps, The Atlantic, December 14, 2019, writes that minus any evidence that Black Lives Matter leader DeRay McKesson incited violence, the 5th Circuit decision can seriously chill protests. “The danger of cases like this, Epps writes, “is not simply the possibility of local juries turning their ire on unpopular defendants; it is the certainty that this type of lawsuit will impose crippling litigation costs on those defendants. Appellate vindication years later will be of little use; they will likely be bankrupt by then.”
The 5th Circuit panel allowed the lawsuit to proceed on December 16, but one judge reversed himself. “Holding Mckesson responsible for the violent acts of others,” wrote Judge Don Willlett, “because he ‘negligently’ led a protest that carried the risk of potential violence or urged the blocking of a road is impossible to square with Supreme Court precedent holding that only tortious activity meant to incite imminent violence, and likely to do so, forfeits constitutional protection against liability for violent acts committed by others. With greatest respect, I disagree with the majority opinion’s First Amendment analysis—both its substance and its necessity. . . .(Reason , December 16, 2019, by Jonathan H. Adler of The Volokh Conspiracy