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If there are few hard and fast features of the journalism racket, its at least a safe bet that publishers and other top brass favor the First Amendment. After all, thats where the Framers forbid the government from abridging the freedom of the press. Not so the new head of National Public Radio, Katherine Maher, who frets that freedom of speech could hinder efforts to combat that latest bte noir of the left, so-called disinformation.

Ms. Maher appraises the First Amendment as the number-one challenge, as she put it, impeding government regulation of speech online. That assessment was turned up by journalist Christopher Rufo. He earned his stripes by bringing to light questions over plagiarism in the academic work of Harvards president, Claudine Gay. It helped precipitate her resignation. Mr. Rufo is now ramping up scrutiny on NPR.

NPRs censor-in-chief, is how Mr. Rufo describes Ms. Mahers comments about fighting disinformation, presenting her apparent unease over the First Amendment as a case of liberal petulance with the constitutional right to free speech. Ms. Maher has run afoul of conservatives lately in part because of an essay in the Free Press by an ex-NPR editor, Uri Berliner, who reckons the radio network has lost Americas trust by tilting to the left in its news coverage.

Such charges gained credence when Mr. Rufo aired left-leaning tweets by Ms. Maher, prior to her tenure at NPR. These include her observation, in 2018, that Donald Trump is a racist. Ms. Maher responded by noting that everyone is entitled to free speech as a private citizen. The remark takes on some added shades of meaning in light of Ms. Mahers First Amendment musings, which date from 2021 but were unearthed by Mr. Rufo but this morning.

At the time, Ms. Maher had just stepped down as chief executive of Wikimedia. She was being interviewed by an NBC News reporter about how, in contrast to the press, people do trust Wikipedia. Ms. Maher touted Wikimedias sense of humility and its refusal to bend to censorship. What about the 2020 election, though, the NBC reporter asked, describing it as rife with misinformation and disinformation, and just a real threat to democracy, actually.

The question failed to note that much of what the liberal press and social media firms at first called disinformation such as reporting about Hunter Bidens laptop proved to be the genuine article. Ms. Maher seemed unaware of that, noting that Wikimedia took a very active approach to disinformation at the time and sought to identify threats early on through conversations with government, though in many cases the government itself was a misleading source.

On this point, critics of President Bidens anti-disinformation efforts, decried by a Federal judge as an Orwellian Ministry of Truth, contend that the government in effect censored online speech it didnt like. The matter is currently being weighed by the Supreme Court in Murthy v. Missouri, and some justices appeared sympathetic to the governments claims that it sometimes needs to lean on social media firms to curb what it sees as disinformation.

One of the towering chairmen of the Wall Street Journal, Warren Phillips, used to tell his reporters that the First Amendment wasnt enacted to protect the responsible press, which didnt need protection. It was calculated to protect the irresponsible press. We took that to mean that the right to err was needed to protect the true freedom of the press. In other words, a free marketplace of ideas is the best way to sort out disinformation from truth.

Ms. Maher frames the First Amendment less as a way to protect freedom of expression, and more a protection of rights for social media platforms to regulate what kind of content they want on their sites. It reminds us of A.J. Lieblings remark about how Freedom of the Press is reserved for those who own one. In truth, though, press freedom benefits shines for, as we put it here at the Sun all. No wonder NPR has lost Americas trust.

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NPR Against the First Amendment - The New York Sun

The Supreme Court announced on Monday that it will not hear Mckesson v. Doe. The decision not to hear Mckesson leaves in place a lower court decision that effectively eliminated the right to organize a mass protest in the states of Louisiana, Mississippi, and Texas.

Under that lower court decision, a protest organizer faces potentially ruinous financial consequences if a single attendee at a mass protest commits an illegal act.

It is possible that this outcome will be temporary. The Court did not embrace the United States Court of Appeals for the Fifth Circuits decision attacking the First Amendment right to protest, but it did not reverse it either. That means that, at least for now, the Fifth Circuits decision is the law in much of the American South.

For the past several years, the Fifth Circuit has engaged in a crusade against DeRay Mckesson, a prominent figure within the Black Lives Matter movement who organized a protest near a Baton Rouge police station in 2016.

The facts of the Mckesson case are, unfortunately, quite tragic. Mckesson helped organize the Baton Rouge protest following the fatal police shooting of Alton Sterling. During that protest, an unknown individual threw a rock or similar object at a police officer, the plaintiff in the Mckesson case who is identified only as Officer John Doe. Sadly, the officer was struck in the face and, according to one court, suffered injuries to his teeth, jaw, brain, and head.

Everyone agrees that this rock was not thrown by Mckesson, however. And the Supreme Court held in NAACP v. Claiborne Hardware (1982) that protest leaders cannot be held liable for the violent actions of a protest participant, absent unusual circumstances that are not present in the Mckesson case such as if Mckesson had authorized, directed, or ratified the decision to throw the rock.

Indeed, as Justice Sonia Sotomayor points out in a brief opinion accompanying the Courts decision not to hear Mckesson, the Court recently reaffirmed the strong First Amendment protections enjoyed by people like Mckesson in Counterman v. Colorado (2023). That decision held that the First Amendment precludes punishment for inciting violent action unless the speakers words were intended (not just likely) to produce imminent disorder.

The reason Claiborne protects protest organizers should be obvious. No one who organizes a mass event attended by thousands of people can possibly control the actions of all those attendees, regardless of whether the event is a political protest, a music concert, or the Super Bowl. So, if protest organizers can be sanctioned for the illegal action of any protest attendee, no one in their right mind would ever organize a political protest again.

Indeed, as Fifth Circuit Judge Don Willett, who dissented from his courts Mckesson decision, warned in one of his dissents, his courts decision would make protest organizers liable for the unlawful acts of counter-protesters and agitators. So, under the Fifth Circuits rule, a Ku Klux Klansman could sabotage the Black Lives Matter movement simply by showing up at its protests and throwing stones.

Like Mckesson, Claiborne involved a racial justice protest that included some violent participants. In the mid-1960s, the NAACP launched a boycott of white merchants in Claiborne County, Mississippi. At least according to the state supreme court, some participants in this boycott engaged in acts of physical force and violence against the persons and property of certain customers and prospective customers of these white businesses.

Indeed, one of the organizers of this boycott did far more to encourage violence than Mckesson is accused of in his case. Charles Evers, a local NAACP leader, allegedly said in a speech to boycott supporters that if we catch any of you going in any of them racist stores, were gonna break your damn neck.

But the Supreme Court held that this emotionally charged rhetoric ... did not transcend the bounds of protected speech. It ruled that courts must use extreme care before imposing liability on a political figure of any kind. And it held that a protest leader may only be held liable for a protest participants actions in very limited circumstances:

There are three separate theories that might justify holding Evers liable for the unlawful conduct of others. First, a finding that he authorized, directed, or ratified specific tortious activity would justify holding him responsible for the consequences of that activity. Second, a finding that his public speeches were likely to incite lawless action could justify holding him liable for unlawful conduct that in fact followed within a reasonable period. Third, the speeches might be taken as evidence that Evers gave other specific instructions to carry out violent acts or threats.

The Fifth Circuit conceded, in a 2019 opinion, that Officer Doe has not pled facts that would allow a jury to conclude that Mckesson colluded with the unknown assailant to attack Officer Doe, knew of the attack and ratified it, or agreed with other named persons that attacking the police was one of the goals of the demonstration. So that should have been the end of the case.

Instead, in its most recent opinion in this case, the Fifth Circuit concluded that Claibornes three separate theories that might justify holding a protest leader liable are a non-exhaustive list, and that the MAGA-infused court is allowed to create new exceptions to the First Amendment. It then ruled that the First Amendment does not apply where a defendant creates unreasonably dangerous conditions, and where his creation of those conditions causes a plaintiff to sustain injuries.

And what, exactly, were the unreasonably dangerous conditions created by the Mckesson-led protest in Baton Rouge? The Fifth Circuit faulted Mckesson for organizing the protest to begin in front of the police station, obstructing access to the building, for failing to dissuade protesters who allegedly stole water bottles from a grocery store, and for leading the assembled protest onto a public highway, in violation of Louisiana criminal law.

Needless to say, the idea that the First Amendment recedes the moment a mass protest violates a traffic law is quite novel. And it is impossible to reconcile with pretty much the entire history of mass civil rights protests in the United States.

In fairness, the Courts decision to leave the Fifth Circuits attack on the First Amendment in place could be temporary. As Sotomayor writes in her Mckesson opinion, when the Court announces that it will not hear a particular case it expresses no view about the merits. The Court could still restore the First Amendment right to protest in Louisiana, Mississippi, and Texas in a future case.

For the time being, however, the Fifth Circuits Mckesson decision remains good law in those three states. And that means that anyone who organizes a political protest within the Fifth Circuit risks catastrophic financial liability.

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The Supreme Court effectively abolishes the right to mass protest in three US states - Vox.com

Early this week, protesters around the country organized to stop or delay car traffic in several major cities San Francisco, Seattle, Chicago, and New York to draw attention to the ongoing horrors in Gaza. Their tactics included no threats and no attacks; they didnt do any physical damage to the infrastructure or harm anyone. Instead, following a long tradition, these protesters simply used nonviolent civil disobedience as a means of challenging government policy. They wanted lawmakers to hear their message, and they were willing to make major (and peaceful) disruption to do it.

So naturally, U.S. Senator Tom Cotton of Arkansas called for these protests to be met with violent reprisals. According to this federal elected official, when stalled in traffic by peaceful protesters, drivers should leave their vehicles and use force against their fellow citizens over a minor disruption. Not exactly what democracy looks like.

Of course, this isnt the first time Senator Cotton has called for violence against people using their First Amendment rights. In an infamous 2020 editorial for The New York Times, Cotton suggested that the George Floyd protests should provoke a military response. At that point, thousands of Americans in almost every locale had emerged from pandemic protocols to engage in one of the largest mass protests in U.S. history, and Tom Cotton thought the appropriate government response was threatening to shoot citizens with bullets that they paid for. In the moment, his defense of this unconstitutional reaction rested on the thin distinction between protesters and rioters. Four years later, hes not even trying to be subtle: He wants to attack people who politically disagree with him, and he thinks its okay for his ideological fellow travelers to do the same.

Such blatant disregard for constitutional rights isnt new: That contempt led to the violent dispersion of the infamous Bonus March where WW1 veterans camped out, seeking their promises benefits, produced many of the iconic images of abuse from the Civil Rights Movement, including the photographs of children being hit by firehoses and attacked by dogs, and forced anti-war protesters into free speech zones during the 2004 Republican convention in New York. As frequently as citizens have used our right to peaceably assemble for the government we want, the one we have has deployed force and condoned violence to undermine us.

But just because it is a common response doesnt make it a fair or acceptable one. Over the decades, we have had aggression and abuse against nonviolent protest normalized with comments from the likes of Senator Cotton, who has put himself in the company of Bull Connor and George Wallace with his brutal disregard for peaceful political disagreement. Leaders like him introduce instability and conflict to the simple and necessary act of demanding more from our government, and in doing so, make all of us less safe.

The reason Senator Cotton and his ilk bring violence to bear when citizens ask for improvement is because they cant win the argument on the merits. Its no coincidence that he signed onto the defense of January 6th insurrectionists who tried to capture and possibly kill members of Congress while turning around and attacking peaceful protesters trying to stop a war. He doesnt want to limit violence; he wants to wield it.

But the right to peaceably assemble remains foundational to a democratic society, and we should use every attack on that right as an opportunity to defend it. The ability to nonviolently protest and petition our government comes from the miseries of the Revolution, when the Founding generation had their demands for equality returned with a volley of gunfire. Almost two and a half centuries later, Senator Cotton shows why that right is immortal, by becoming the tyranny we were built to reject.

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Tom Cotton Clearly Hates The First Amendment - Betches

The Supreme Court allowed a police officers lawsuit against a Black Lives Matter leader to move forward Monday.

In a brief order, the justices turned away activist DeRay Mckessons First Amendment appeal, meaning he must face the lawsuit brought by the anonymous officer who was injured during a 2016 protest.

Days after police fatally shot Alton Sterling in Baton Rouge, La., Mckesson organized a protest at which demonstrators blocked a highway outside a local police station. 

As police cleared the roadway, the officer, identified as John Doe, was hit with a rock-like object and suffered brain trauma, among other injuries, court filings show.

Mckesson did not throw the object, and it is undisputed that he never authorized the violence. But the officer claims that Mckessons leadership at the event still makes him liable for the unidentified culprits actions.

Its not the first time the justices have confronted the case. In 2020, the Supreme Court in an unsigned decision called the First Amendment issue undeniably important, but the justices sent the case back to first get clarity on whether state law would allow the officer to seek damages in the first place. 

Louisianas top court eventually responded that it would, and the 5th U.S. Circuit Court of Appeals then issued a ruling rejecting Mckessons First Amendment defense and allowing the lawsuit to proceed closer to trial.

Mckesson then brought his First Amendment claim back to the high court. But in a brief, unsigned order, as is typical, the Supreme Court refused to review that 5th Circuit ruling.

It is unfathomable under this Courts First Amendment jurisprudence that a State would hold a protest leader liable in damages for a third partys independent conduct that the leader himself neither incited, directed, authorized, nor ratified, attorneys at the American Civil Liberties Union, which represents Mckesson, wrote in their petition.

The case largely rested on the relevance of a 1982 Supreme Court decision that found the NAACP could not be sued for supporting a local boycott of white merchants during the Civil Rights Movement that at times turned violent.

Mckesson argues that the precedent forecloses the lawsuit against him.

The anonymous officer, however, distinguishes his lawsuit by arguing that Mckesson unlike the NAACP engaged in illegal activity by organizing a protest to block a roadway. The injuries were a foreseeable consequence of that allegedly illegal activity, the officer claims.

There is nothing un-American or unconstitutional about chilling speech designed specifically and effectively to engage police officers, where time after time the time, the place and manner of the speech has resulted in looting, property destruction, business closures, personal injury, economic loss, bystander and police injury, the anonymous police officers attorney wrote in court papers.

The time, place and manner of delivering First Amended protected speech matters.

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Supreme Court allows police officers suit to move forward against Black Lives Matter leader - The Hill

A renegade federal appeals court one dominated by MAGA-aligned judges who routinely read the law in ways that even the current, very conservative Supreme Court finds untenable has spent the last half-decade harassing DeRay Mckesson, a prominent civil rights activist and an organizer within the Black Lives Matter movement

As part of this crusade, two of the Fifth Circuits judges effectively eliminated the First Amendment right to organize a protest in a case known as Doe v. Mckesson.

Mckessons case has already been up to the Supreme Court once, and the justices strongly hinted in a 2020 opinion that the Fifth Circuits attacks on Mckessons First Amendment rights should end labeling this case fraught with implications for First Amendment rights. But the Fifth Circuit did not take the hint, issuing a new opinion last July reaffirming its attack on First Amendment-protected political protests.

Now the case is before the Supreme Court again, and Mckessons lawyers want the justices to restore the First Amendment as fast as they possibly can.

In 2016, Mckesson helped organize a protest near Baton Rouges police department building, following the fatal police shooting of Alton Sterling in that same Louisiana city. At some point during that protest, an unknown individual threw a rock or some other hard object at a police officer, identified in court documents by the pseudonym Officer John Doe.

Sadly, the object hit Doe and allegedly caused injuries to his teeth, jaw, brain, and head, along with other compensable losses.

There is no excuse for throwing a rock at another human being, and whoever did so should be held responsible for their illegal act, including serious criminal charges. But even Judge Jennifer Elrod, the author of the Fifth Circuits most recent opinion targeting Mckesson, admits that it is clear that Mckesson did not throw the heavy object that injured Doe.

Nevertheless, Doe sued Mckesson, claiming that, as the organizer of the protest where this injury occurred, Mckesson should be liable for the illegal action of an unidentified protest attendee. But that is simply not how the First Amendment works. The Supreme Court held in NAACP v. Claiborne Hardware (1982) that civil liability may not be imposed merely because an individual belonged to a group, some members of which committed acts of violence.

It should be obvious why protest leaders must not be held legally responsible for the actions of random protest attendees. No one will ever organize a political protest if they know that they could face financially devastating liability if a reckless or violent individual happens to show up.

Indeed, as Judge Don Willett, a Fifth Circuit judge who dissented from Elrods opinion, pointed out, Elrods approach could potentially force protest organizers to pay for the unlawful acts of counter-protesters and agitators who show up for the very purpose of undermining the protest organizers political goals. Under Elrods opinion, Mckesson could be held liable if the unknown rock-thrower turns out to be a member of the Ku Klux Klan who showed up for the very purpose of undermining the Black Lives Matter movement by associating them with violence.

In their petition to the Supreme Court, Mckessons attorneys make an audacious ask claiming that Elrods decision is so flatly contrary to this Courts controlling precedent to be appropriate for summary reversal.

A summary reversal is the judicial equivalent of a spanking. It means that the lower courts decision was so erroneous that the justices decided to skip a full briefing or an oral argument in a case, and issue a permanent order overturning that lower courts decision.

This process is rarely used, and it is distinct from the temporary orders the Court frequently hands down on its so-called shadow docket. The Supreme Court typically requires six justices to agree before summarily reversing another courts decision.

Nevertheless, such a spanking is warranted in this case. Elrods opinion flouts exceedingly well-established First Amendment law. And it does so in a way that would make organized mass protests impossible, because anyone who tried to organize one would risk bankruptcy.

To understand just how ridiculous Elrods decision is, and how egregiously she defies the Supreme Courts caselaw, its helpful to start with the facts of the Claiborne case.

Like Mckesson, Claiborne involved a civil rights activist who organized a protest that allegedly included some violent individuals. In 1966, Charles Evers was the field secretary of the Mississippi chapter of the NAACP. In that role, he was the principal organizer of a boycott against white merchants in Claiborne County.

The Mississippi Supreme Court claimed that some of the individuals who joined this boycott also engaged in acts of physical force and violence against the persons and property of certain customers and prospective customers of these white businesses. Evers, meanwhile, allegedly did far more to encourage violence than DeRay Mckesson is accused of in his case. He allegedly gave a speech to potential customers at these stores, where he said that if we catch any of you going in any of them racist stores, were gonna break your damn neck.

The Supreme Court nonetheless held that this emotionally charged rhetoric ... did not transcend the bounds of protected speech. Claiborne also warned that courts must show extreme care before imposing liability on a political figure of any kind.

That said, the Courts decision also listed three limited circumstances when a protest leader may be held liable for the violent actions of a protest participant:

There are three separate theories that might justify holding Evers liable for the unlawful conduct of others. First, a finding that he authorized, directed, or ratified specific tortious activity would justify holding him responsible for the consequences of that activity. Second, a finding that his public speeches were likely to incite lawless action could justify holding him liable for unlawful conduct that in fact followed within a reasonable period. Third, the speeches might be taken as evidence that Evers gave other specific instructions to carry out violent acts or threats.

None of these circumstances are present Mckesson. To the contrary, the Fifth Circuit admitted in an earlier decision in this very case that Officer Doe has not pled facts that would allow a jury to conclude that Mckesson colluded with the unknown assailant to attack Officer Doe, knew of the attack and ratified it, or agreed with other named persons that attacking the police was one of the goals of the demonstration.

So how on earth did Elrod arrive at the conclusion that Mckesson could be held liable for the actions of an unknown protest attendee? For starters, she claimed that her court could just add new items to the list of three circumstances that could justify such liability in her Mckesson opinion. According to Elrod, nothing in Claiborne suggests that the three theories identified above are the only proper bases for imposing tort liability on a protest leader.

This is, to put it mildly, a very unusual way to read a Supreme Court opinion that held that threats to break someones neck can be First Amendment-protected speech, which calls for extreme care before targeting protest organizers, and which laid out only three very specific circumstances that might justify an exception. Elrod cites no other court decision that has ever read Claiborne in such a counterintuitive way.

Then, after giving herself the power to invent new exceptions to the First Amendment, Elrod writes that this amendment does not apply where a defendant creates unreasonably dangerous conditions, and where his creation of those conditions causes a plaintiff to sustain injuries.

And what are the dangerous conditions created by Mckesson? Mckesson organized the protest to begin in front of the police station, obstructing access to the building. He did not dissuade protesters who allegedly stole water bottles from a grocery store. And he led the assembled protest onto a public highway, in violation of Louisiana criminal law.

Seriously, she said that the First Amendment begins to fade the minute a protest occupies a street.

Its hard to imagine a more lawless, unpersuasive, and historically ignorant decision than the one Elrod put her name on in the Mckesson case. And if the Supreme Court cant find the votes to reverse that decision, the right to engage in mass protest will become meaningless.

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A new Supreme Court case threatens to take away your right to protest - Vox.com