The Supremes do occasionally issue rulings about the actual contours of what is allowed protest speech, as contrasted from prohibited lawless conduct.
In a case out of Louisiana — during George Floyd protests, a BLM member was held liable for what Louisiana called the “negligence standard” of injuries to a police officer working the protest. The trial court tried to hold an individual, who signed the protest permit liable, when an officer was injured at the protest — on a negligence theory (that it was “reasonably foreseeable” that an officer might be hurt, if the crowd grew too agitated).
What in fact transpired was that the Fifth Circuit then held that petitioner DeRay Mckesson, the leader of a Black Lives Matter protest in Baton Rouge, Louisiana, could be liable, under a negligence standard, for serious injuries sustained by a police officer when an unidentified individual attending that protest threw a hard object that hit the officer in the face. But speech cannot be punished on a mere negligence standard, as the courts have long held. Doubly so, where the person being sued (without dispute) was in no manner involved in the random throwing of the object. He was well-away from where that occured.
That “negligence standard” had never been the law, for a pure speech protest permit.
And since then, the Supremes decided Counterman, in any event. That case held that law enforcement must prove — in true-threats cases — that the defendant had some subjective understanding of his statements’ threatening nature, as the First Amendment requires a more demanding showing than just “recklessness“. In this case, there were no threats made by Mr. McKesson, in the record — of any sort (and nothing “reckless”, in any event), against law enforcement in Baton Rogue. So the court held him liable on “negligence alone”.
And so, the able Justice Sotomayor writes this morning, to explain to the Fifth Circuit what the law — as developed — since Counterman v. Colorado requires of the State, in McKesson (in now its second time at the highest court).
Mr. McKesson (after Counterman), cannot be liable unless the State can show that he was “more than reckless” — in his encouragement of the crowds toward lawless conduct — and in any event, mere negligent speech won’t support his liability for the officer’s injury.
True enough, being a cop is a dangerous job. Guarding protests — and protestors — is part of the job.
He easily could have donned riot gear, but he chose not to. It was a hot day, and it would seem he expected the crowd would be largely peaceful. And it was.
Accidents do happen — and if one cannot find and arrest the bottle thrower — one cannot hold the organizer responsible under our First Amendment protections jurisprudence — certainly not on a mere negligence theory.
Yep, this McKesson case is plainly about state actions to restrict protected expression — unlike the ones that the Powerline boys yammer on about, week after week, occuring in private social media living rooms. [No state actions there.]
Now you know.
