- The Washington Times
Saturday, December 21, 2019

NEW ORLEANS — In a bizarre twist to a case that could become a landmark First Amendment decision, a federal appeals court judge made a rare turnaround last week, reversing a decision he made in August and complicating the decision he had approved.

Judge Don Willett of the U.S. Court of Appeals for the 5th Circuit announced Dec. 16 he had been in error on Aug. 8 when he joined two colleagues in a unanimous decision that ruled the organizer of a Black Lives Matter demonstration may be liable for severe damages a police officer suffered when a protester threw something at him.

Judge Willett’s reversal stunned all parties, who believed the matter settled at the appellate level and were focused on Supreme Court briefs.

David Goldberg, one of protest organizer DeRay McKesson’s lead attorneys on the case, said he received a notice from the 5th Circuit that there had been a “development” in the case. He was puzzled when he saw it was 43 pages.

“I opened it up on my phone and was really shocked,” he said, noting he could not remember a similar move by a federal appeals judge in his decades of practice.

The unusual activity comes more than three years after Black Lives Matter held a demonstration in Baton Rouge in July 2016 after police officers shot and killed a black man in a scuffle outside a convenience store. Riot police were called to the scene one night, and one of them was hit in the face by a projectile thrown by a protester.

Mr. McKesson did not throw the object or instruct anyone to do so. Court documents show no evidence Mr. McKesson committed or encouraged violence that July night.

Nevertheless, the officer, identified as John Doe in court papers, sued both Mr. McKesson and Black Lives Matter in a lawsuit a federal district judge dismissed.

The 5th Circuit said that dismissal was a mistake and that the officer should be given his day in court, despite Mr. McKesson’s First Amendment rights and his personal distance from the violence.

The appeals judges reasoned that Mr. McKesson and the crowd he assembled knowingly broke the law when they occupied a highway and impeded commerce, and thus the illegal event was fraught with the possibility of violence. Consequently, the officer should have been allowed to present a case.

“We do find, however, that Officer Doe adequately alleged that McKesson is liable in negligence for organizing and leading the Baton Rouge demonstration to illegally occupy a highway,” the panel wrote. “We further find that in this context the district court erred in dismissing the suit on First Amendment grounds.”

That ruling stands, although now on a 2-1 vote with the dissent from Judge Willett, who was appointed by President Trump.

But the ruling remains profoundly at odds with Supreme Court precedent and the First Amendment, according to the American Civil Liberties Union and Mr. McKesson’s legal team.

“This isn’t a left-right issue,” Mr. Goldberg said. “This is a matter of First Amendment rights that apply to everybody, and the 5th Circuit’s ruling should concern everybody who might ever consider protesting against the government or a law.”

The case has drawn some support on the right.

“It’s important to remember that the principle laid down by the 5th Circuit, if upheld, won’t just apply to Black Lives Matter protests,” conservative lawyer Paul Mirengoff, a principal at the Powerline blog, wrote recently. “It’s easily foreseeable that conservatives will want to engage in intense forms of protests and that, when they do so, they will run afoul of this or that ordinance of a liberal jurisdiction.”

“I wouldn’t want to see such protests deterred, or the organizers punished, for violent acts they did not engage in or encourage,” he concluded.

In his new dissent, Judge Willett argued “encouraging unlawful activity cannot expose McKesson to liability for violence because he didn’t instruct anyone to commit violence.”

The other two judges, however, argue “the basis of potential liability in this case is McKesson’s actions and conduct in directing the illegal demonstration, not his speech and advocacy.”

Should the divided panel’s position stand, Mr. McKesson’s team argues, it would undercut the Supreme Court’s NAACP v. Claiborne Hardware decision in 1982 that said First Amendment protections apply to the organizers of an event and that they should not be liable for ancillary issues arising that they neither called for nor committed.

“Given the regularity with which violence and First Amendment activity co-occur and the vagaries of state law liability rules, only the most intrepid citizens would exercise their rights and risk ruinous liability if they could be held liable for the wrongful acts of others,” they wrote in their original brief to the Supreme Court.

• James Varney can be reached at jvarney@washingtontimes.com.

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