No, The Supreme Court Has Not Banned Protest

How are you How are you doing today?

way up to the Supreme Court. And it's a case that involves the First Amendment, and the way that it has been reported, I think, or at least the way that it has been received, particularly by communities of people who do engage in a lot of First Amendments protected activity, has been with a certain amount of panic. That the Supreme Court saying we're not going to hear this case.

We're going to kick it back down to the Fifth Circuit, We're going to kick it back down to the district court, is you know, a harbinger of terrible things to come for the right to protest and for the kinds of liability that you might be exposed to if you are engaging in protest. And there is some truth to that. It is I would say, often dangerous to engage in

acts of dissent. But I think that there's some real misapprehension of what's going on with this particular case, and so I thought it was worth having a conversation with you to try to clarify a little bit about what's going on here, what the risk saw are associated specifically with this case, and what the risks actually are on the ground with respect to protest, and also to talk to you about some of the resources that are available to protect yourself.

And then what kinds of resources there are? I guess the first thing I'm going to do is give you a very brief premmer on the First Amendment. So, the First Amendment guarantees, as I like to say, the very First Amendment guarantees our rights to speech. In a sum the government can place limits on the time, place, and

manner of your protest. But the government is not authorized to criminalize speech based on subject matter or viewpoint, and it can't impose what's called a prior restraint on speech, which can include making it so risky to speak that people engage in self censorship. But the First Amendment doesn't immunize you from prosecution or civil liability for otherwise unlawful conduct, right.

So that's why true threats of violence are not protected by the First Amendment right, And it doesn't protect you from being arrested for behavior just because that behavior is politically motivated, which is why breaking Starbucks windows and graffiti and a fascination are not protected by the First Amendment.

he is not being criminally prosecuted, right, That's an important distinction. So, you know what, let's back up a little bit.

isn't what this case is about. This is a civil case, which means that somebody is being sued for money damages and the person who's being sued is de Ray McKesson. Deray McKesson was, at one point, for anyone who can remember a decade ago, was very high profile, very visible in the Black Lives Matter movement in Ferguson and in Baltimore and then later in Louisiana, And he was somebody who was very visible in the media. He made a

lot of public statements. He made a lot of public statements on behalf of Black Lives Matter, which you know I'm going to get into is not a membership organization, but he made a bunch of statements as though he were the representative of a movement which he referred to as Black Lives Matter. He organized a lot of protests. I think at one point I have a memory that he ran for office. So he was a very visible

movement organizer, right. He organized a protest in I believe twenty seventeen in the wake of the police murder of Altms Sterling, at which a police officer was hit in the head with a hard object, a rock or a piece of concrete, and he was like the police officer was injured, like pretty seriously, yeah, And he then sued Deray McKesson for money damages on the theory that because he had organized the protest, he had control of the protest, and he had some responsibility for the fact that this

other person had thrown a rock at him. This theory requires a real failure to understand social movements and distributed networks because what it presumes, and I think we've talked about this before on this show, is the inability of the police and the courts to understand that not every social movement operates with a clear hierarchy like the police or the military. Because their social movement groups do imitate the military, they do imitate that hierarchy. They totally reproduce

this sort of chain of command theory. So if you look at the clan, right, they are organized by they are incorporated, they have a membership, there is a clear hierarchy, who is in charge, who is giving orders, who is following orders?

really just legally insufficient. Right, The allegations that were made were black Lives Matter whatever that is made statements about policing is unjust and police shouldn't be surprised if there's you know, if they encounter resistance, and then these other people kind of showed up and shot at cops. And the theory is that by sort of making these statements, Black Lives Matter encouraged or incited and was responsible for

these shootings. Yes, this is not a This is not a valid legal theory, right, I mean, it just is not. And that case was dismissed, you know, just entirely. And then the second case it was brought was this one where the guy who was hit in the head with a rock, and it's the same allegations, the same theory of liability, and everybody got dismissed out of that case. All of the defendants got dismissed out of that case

except for Deray McKesson. And part of the reason that everyone else was dismissed out of that case, or that the suit was dismissed with respect to those named defendants, is that Black Lives Matter was an unincorporated association, and an unincorporated association can't be sued. So and this has been relevant in other cases. I'm not trying to give anyone legal advice, but I want people to think about

the fact. I think there's like a real impulse sometimes in social movement organizing that like we need to make everything a nonprofit.

it's a slap suit. It's a suit that endeavors to stifle speech that's in the public interest. Right when that suit first started, they tried to sue earth First. But earth First is not an entity, right yeah, there's no one to serve, you know, there's nobody there. It's not you know, it's like antify. It'd be like trying to sue Batman fans.

by that person for money. Damages, got it right to compensate you for the loss. So in this case, mister McKesson is being civilly sued, not arrested, not prosecuted, not subject like, there is no possibility that if he loses this case he'll go to jail.

all of these people can't be sued. But mister McKesson, we do think could be liable under a theory of negligence because he organized the protest and was present. This officer sues McKesson and a bunch of other people, and the officer says that mister McKesson is liable because he organizes protests and should knew or should have known that

it could potentially turn violent. And so he says under Louisiana law, he can sue on a theory of negligence, which doesn't require any kind of intent or certain knowledge.

It's just being you know, negligent. Initially, the court, the Federal District Court, dismisses those claims, all of them based on NAACPD Claiborne, which I talked about earlier, right, which says, if you're at a protest and one person gets violent, like the rest of the protest doesn't get does not lose its First Amendment protected character just because other people

are violent. Then the cop appeals and the Fifth Circuit in part affirms their rulings about all of the other people who were sued, but reinstates the negligence claim against mister McKesson. Right, he then does it. Never, by the way, has proceeded to trial. This case is still in a very preliminary phase. Oh wow, it has been going on since twenty seventeen and it's been bouncing up and down the courts. But the question is can he even be

sued under this theory? So we haven't gotten he hasn't been found guilty, we haven't had a presentation of evidence. There's all kinds of stuff that has not yet happened. In this case. The question is very, very narrow. Can a person be sued under a theory of negligence when they organize a protest and somebody else at that protest causes.

One of the there was a three judge panel that ruled on this, so it was a two to one ruling. Two of the judges tried to distinguish it from Claiborne. One of the judges says, no, you know, Claiborne, it's

exactly the same controlling. You can only hold somebody liable for their own behavior, right, And one of the things he says is that if you make protest organizers liable for someone else's violent behavior, all accounter protester has to do is show up and start throwing rocks in order to get the whole protest to you know, to impute liability to the Yeah, the organizerson who organized the protest. Yeah,

And that goes both ways, right. So I am sort of surprised that they given that there are social movements that are probably more aligned with the values and beliefs of these federal judges in the Fifth Circuit.

So in that case, we have what's called a true threats analysis, and they're trying to determine whether a person who's making threats needs to actually know that the threats they're making are going to be perceived as real threats. And what they decided was they do need to know to some degree that these statements could be taken as

true threats. But they talk a lot. Kagan authored this opinion, and she talks a lot about how careful we have to be even with speech that is traditionally not protected, like true threats, because it's very important not to chill protected speech. And what she says is that the Court has always been really wary of chilling protected speech, and so sometimes it makes extra space for speech that isn't protected in order to make really sure it doesn't chill

protected speech right. So, she says, the court must consider the prospect of chilling non threatening expression given the ordinary citizens predictable tendency to steer wide of the unlawful zone. The speaker's fear of mistaking whether a statement is a threat, his fear of the legal system getting that judgment wrong, his fear in any event of incurring legal costs, all those may lead him to swallow words that are in

fact not true threats. And so what they say is we need to make a standard that has enough what they say is breathing room to make sure that even if it means that some unprotected speech gets through, we have enough space for all of the protected speech to still exist and for nobody to feel uncertain about whether or not their speech is protected.

regarding incitement to violence demand more. But the reason for that demand is not present here where we're talking about threats. When incitement is at issue, we have spoken in terms of specific intent, presumably equivalent to purpose or knowledge. In doing so, we recognized that incitement to disorder is commonly a hair spread away from political advocacy, and particularly from

strong protests against the government and prevailailing order. Such protests gave rise to all the cases in which the Court demanded a showing of intent, and the Court decided those cases against a resonant historical backdrop the Court's failure in an earlier era to protect mere advocacy of force or law breaking from legal sanction. A strong intent requirement was and remains one way to guarantee history was not repeated.

It was a way to ensure the efforts to prosecute incitement would not bleed over, either directly or through a chilling effect, to dissenting political speech at the First Amendment's core. Okay, So we have this case that's decided days after the Fifth Circuit makes its decision that directly speaks to this decision. Yeah, reaffirms Clayborn, It reaffirms that political speech is protected. It reaffirms that you cannot have a negligence standard. You have

to have a standard. You can't just say, well, somebody knew or should have known that organizing a protest might lead to violence, and you say, they have to be like, we're going to go out and we're going to do violence at this protest at this time. Right, they have to be actually advocating for violence in order to be held responsible for violence.

may deny what's called sorcherai right hearing the case. The Court may deny sorcherai for many reasons, including that the law is not in need of further clarification. Right, its denial today expresses no view about the merits of mckesson's claim. Although the Fifth Circuit did not have the benefit of this Court's recent decision Encounterman when it issued its opinion the lower courts now do I expect them to give full and fair consideration to arguments regarding Counterman's impact in

any future proceedings. Right. So, I don't think that it's some like terrible thing that the court said, oh, no, we're not going to hear this case. I don't think they're saying in any way, oh we're not going to hear this case because we think it ought to proceed further and go to trial down in Louisiana. I think what they're saying, is we already decided this issue. The law remains the same. Claiborne is still the controlling case here.

law comes from countermen. Right. And the statement makes even clearer that the First Amendment does not permit liability on the negligence theory advanced by the COP in this case. It doesn't say the COP in this case. So it makes very clear, you know, they have submitted mister mckesson's council has submitted this statement to the judge, and I think there is every possibility that this case is just

going to die at this point. You know, remember the District Court already dismissed it altogether at once, and it has only been carrying it forward because they were ordered to buy the Fifth Circuit.

with this. But I think if they did, and if mister McKesson was like a if they even allowed it to continue, it might just go right back up to the Supreme Court. And the Supreme Court might at that point hear it because they've already said, no, we expect you to follow the law that we just rearticulated in this other case. Right, But again, remember that we haven't had a trial yet. He hasn't been found guilty, he hasn't, right, Like, the question is, can we even proceed in this case.

forces of retrogression and repression to quell dissent. But it's just one of many, right, And we've seen so many examples of this, and they are by no means new or novel, right, They're just trying out new legal theories, and this was one of them. And I don't think it's going to go anywhere, but I think we need to remember there's always sort of multiple fronts on which we're fighting this battle. Right. There's the legal front, right, and then there's the sort of on the ground law

enforcement front. One of the reasons that mister McKesson was targeted here is because he did make and this is not to say this is his fault, it absolutely is not, but one of the things that made him more susceptible to targeting is that he did make a ton of public statements and he was extremely visible in a way that aligned with the governments and the right wings understanding

of social structures. Right, because if they understand that social movements are being directed from the top, which is not typically the case, but if that's if that's what it looks like to them, and there is a person that they can identify who they can even a little bit make out, even the most tenuous case, is in charge, then you know that's the person they're going.

kind of thing. Anyway, The dangers are what the dangers have always been, which are mass arrests because the police neither know nor care what the law is, and they don't care about Clayborn, and they don't care that the fact that you did not personally throw a rock doesn't

constitute probable cause to arrest you. Right like, I am always more concerned about things on the ground, like mass arrests and police involved injuries than I am about, frankly, about even long term legal consequences because so often, and I guess I say this because I have the privilege of practicing in New York where there is a very strong history of public protest and everyone sort of understands what that is and no one feels all that threatened

by it. Which doesn't mean that there aren't a lot of police involved injuries. And it doesn't mean that there aren't a lot of traumatic arrests, but it does mean

that typically there are not devastating legal consequences of that. Now, that's not the case in places like Georgia, right, where they're doing their own sort of boundary testing down there to see what kinds of criminal liability and what kinds of theories of criminal law they can use to sort of bootstrap absolutely garden variety protest behavior into really serious felony charges.

There's counter groups, right, we have like you mentioned before, the Proud Boys, we have all kinds of well, look,

Canary Mission is a really good example, right. We have all kinds of actors, groups, individuals, corporations, government entities that have an interest in suppressing descent, and they engage in all kinds of conduct, you know, ranging from intense surveillance to doxing to you know, even more violent behavior, you know, targeted harassment, not just by law enforcement, but by individuals,

by neighbors, by media outlets. Right. And those are the kinds of things that make it dangerous to protest, I guess, But since when do we let that stop us? Right? You know? I mean the solution to these kinds of dangerous is to be thoughtful, to remember that discretion is the better part of valor, right, Meaning, you don't need

to be bragging about whatever you're doing on Twitter. You don't need to always be the public face of the movement, because even if you're not speaking directly to cops in an interrogation, anything you say publicly can and very much will be used against you. Yeah, we're seeing a lot of employment and educational consequences right people are what's happening

right now as we speak at Columbia University. People are losing their student housing, they're getting suspended from school, they're getting arrested, they're getting you know, these student disciplinary proceedings. There's all kinds of risks to being a public dissident. But the solution to that kind of repression is not self censorship, it's courage.

to be brave. As we reach another election year, almost certainly like there will be protest, which whatever happens in the election, right, that will lead to people who are perhaps not so familiar with horizontal organizing, with like anti authoritarian or non authoritarian organizing, all these things, entering a protest movement, and people will inevitably have to learn like one way or the other, you know, like these basic things which they can do to make it as safe

as possible to protest, And it would be great if they can learn them from a podcast note from them or their friends getting hurt.

what that is before you do the thing. Yes, then after you do that thing.

still help you to accomplish your political goals. And if you are going to go out and do something that you think is likely to involve a rest, I at least want you to know that it is likely to involve our rest exactly you know, and what your specific risks might be, and to have somebody lined up to take care of you, to represent you if that becomes necessary. Right. I really don't mean to say, oh, don't worry about McKesson vedo, it's no big deal. It is a big deal.

It's a big deal because this whole judicial system and legal apparatus is working over time to find every possible way to discourage protest. But it is not unique in that regard. And I guess that's really what I'm trying to say. There are all kinds of ways in which we are at risk by being dissidents. I just don't think that this one is particularly special or particularly alarming.

And again, what I just referred to as the law of the land is not the same thing as law enforcement practice, right y.

dot org. We also have chapters all over the country and if you look in our referral directory you can find where those contacts for people all over the country. I think if you want a know your Rights training, you can reach out to the NALG and there are a lot of other a lot of other organizations that

do know your Rights trainings. I know in New York we have a really amazing organization called Cuney Clear, and I would highly recommend you follow them on Instagram because they often have a lot of resources that they're posting. Protect your People a digital toolkit for organizations and employers, and it was developed to combat anti LGBTQ plus harassment, but I think the principles remain the same no matter what it is that you're looking at. And I'll put

the link to that again. It's called Protect Your People and it's hosted by the Harvard Law LGBTQ clinic. But I'll stick the link here in the chat for you, James, so that you can share it in the show notes well.