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Something very unusual happened in the United States Court of Appeals for the Fifth Circuit this week. A Trump appointee to that court acknowledged that he was wrong when he voted to strip a prominent civil rights activist of the activists First Amendment rights.

The case is Doe v. Mckesson, and it involves Black Lives Matter activist DeRay Mckesson.

Mckesson allegedly helped lead a protest near the Baton Rouge Police Department building. During that protest, an unknown assailant who is not DeRay Mckesson allegedly threw a rock at a police officer (referred to as Officer Doe in this suit), injuring them.

Last April, the Fifth Circuit held that Mckesson could potentially be held liable for the actions of this unknown assailant, despite the Supreme Courts holding 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. All three of the judges who joined this decision are Republicans.

On Monday, Don Willett, one of those three judges, admitted that he was wrong. I originally agreed with denying Mckessons First Amendment defense, Willett wrote in a rare dissenting opinion issued months after the courts initial decision, but I have had a judicial change of heart.

Willetts new opinion argues that protest leaders like Mckesson are generally protected by the First Amendment if a rogue member of their protest commits a criminal act. While there is no question that Officer Doe can sue the rock thrower, Willett concludes that the Constitution that Officer Doe swore to protect itself protects Mckessons rights to speak, assemble, associate, and petition.

That means that police officers cannot chill protests by imputing the actions of third parties to the protest leaders. If protest organizers can be held liable for the actions of people they cant control, few people will be willing to lead protests because they could potentially be sued for illegal activity committed by anyone at the protest.

In the short term, Willetts change of heart matters very little. The two other judges on the Mckesson panel adhere to their previous decision. So Mckessons best hope to vindicate his First Amendment rights lies in a petition he filed in the Supreme Court earlier this month.

The Fifth Circuit majoritys opinion is at odds with the Supreme Courts decision in Claiborne Hardware. According to Judge E. Grady Jolly, who wrote the majority opinion, Mckesson allegedly directed the demonstrators to engage in the criminal act of occupying [a] public highway near the police building. That, Jolly suggests, can be enough to strip Mckesson of his First Amendment rights.

In order to counter Mckessons First Amendment defense at the pleading stage, Jolly wrote, Officer Doe simply needed to plausibly allege that his injuries were one of the consequences of Mckessons decision to lead protesters into the street.

The case is still at an early stage of litigation. If the Supreme Court does not intervene to protect Mckesson, there will still be a trial where Mckesson may attack Officer Does factual claims. But if the Fifth Circuits decision is allowed to stand, that decision could have a chilling effect on all organized protest.

Claiborne Hardware did not hold that protest leaders are stripped of their First Amendment rights if they commit a minor illegal act during a protest. To the contrary, Claiborne Hardware held that the First Amendment protects protest leaders unless they authorized, ratified, or directly threatened acts of violence. And there is no allegation that Mckesson did any such thing.

As Willett notes, Officer Doe does not allege that Mckesson gave any particular order to commit violence. Nor does he claim that Mckesson controlled or directed the unidentified assailant. The only allegation of illegal activity against Mckesson is that he led people into a public highway and street protests are a common tactic used by civil rights marchers.

Willett concludes his opinion with a rhetorical flourish. Dr. Kings last protest march was in March 1968, in support of striking Memphis sanitation workers, he writes. But as King led the largely nonviolent protest down Beale Street, some young men began breaking storefront windows. The police moved in, and violence erupted, harming peaceful demonstrators and youthful looters alike.

If Jolly is correct about the Constitution, then Martin Luther King Jr. gave up his First Amendment rights the minute he violated a traffic law. Its now up to the Supreme Court to decide if Jollys decision should stand.

Read more:
Trump judge recants attack on Black Lives Matter and the First Amendment - Vox.com

You almost never hear a judge say my bad, but that is exactly what Fifth Circuit Court of Appeals Judge Don Willett did this week, reversing his opinion in a First Amendment case legal experts say could chill the right to protest.

The case involves activist Deray Mckesson, who was sued by a Baton Rouge, La., police officer after a protester allegedly threw a rock at the cop at a demonstration Mckesson helped lead.

To be clear: Mckesson didnt direct the unknown protester to allegedly throw the rocka point on which both Mckesson and the team representing the unnamed officer in the lawsuit (Officer Doe) agreed. What Does team successfully argued in front of a three-judge panel was that Mckesson was liable simply because he helped organize the march outside the Baton Rouge Police Department in 2016. To put it another way, Mckesson can be sued because he didnt prevent the protester from throwing the object (regardless of whether he was even aware of it at the time).

Willett was part of the panel that decided in favor of Officer Doe in April, reports Vox. On Monday, Willett issued a new dissenting opinion laying out the faults of his original decision.

I originally agreed with denying Mckessons First Amendment defense, but I have had a judicial change of heart, Willett wrote (h/t The Atlantic).

Consistency is a cardinal judicial virtue, but not the only virtue, he continued. In my judgment, earnest rethinking should underscore, rather than undermine, faith in the judicial process. As Justice Frankfurter elegantly put it 70 years ago, Wisdom too often never comes, and so one ought not to reject it merely because it comes late.

Willett now argues that activists like Mckesson are protected by lawsuits like Does under the First Amendment.

From Vox:

While there is no question that Officer Doe can sue the rock thrower, Willett concludes that the Constitution that Officer Doe swore to protect itself protects Mckessons rights to speak, assemble, associate, and petition.

That means that police officers cannot chill protests by imputing the actions of third parties to the protest leaders. If protest organizers can be held liable for the actions of people they cant control, few people will be willing to lead protests because they could potentially be sued for illegal activity committed by anyone at the protest.

The primary issue is that the judges first ruling flies in the face of a precedent: the Supreme Court case, NAACP v. Claiborne Hardware(1982), which found civil liability may not be imposed merely because an individual belonged to a group, some members of which committed acts of violence.

In order for First Amendments to be overwritten, protected speech has to rise to the level of incitementDoes case doesnt argue this competently, Willett wrote.

From Willetts opinion (emphasis mine):

Not one of the three elements of incitementintent, imminence, likelihoodis competently pleaded here. Nor does the complaint competently assert that Mckesson directed, intended, or authorized this attack. Our Constitution explicitly protects nonviolent political protest. And Claiborne Hardware, among our most significant First Amendment cases, insulates nonviolent protestors from liability for others conduct when engaging in political expression, even intentionally tortious conduct, not intended to incite immediate violence. The Constitution does not insulate violence, but it does insulate citizens from responsibility for others violence.

In fact, the only thing Mckesson did illegally in Baton Rouge, as far as anyone in the case is concerned, is leading marchers onto a public highwaya common practice among protesters. In fact, Willett invoked foundational acts of protest in his dissent, noting that acts like dumping tea into the Boston Harbor, or walking from Selma to Montgomery as did Dr. Martin Luther King Jr. and marchers (an act that also took place on public highways) would not be considered protected speech under this Fifth Circuits ruling. Further, if a marcher did so much as jaywalk, King himself could have been sued. (Well get back to the jaywalking example in just a moment.)

Unfortunately, Willetts dissent is still outnumbered by the other two judges (all three are Republican), who wrote the judicial equivalent of I said what I said to Willetts opinion this week. Constitutional law professor Garrett Epps captured the crux of their opinion for the Atlantic (back to the jaywalkers!):

Imagine protesters speaking out on a heated political issue are marching in a downtown district, they write. As they march through the city, a protester jaywalks. To avoid the jaywalker, a car swerves off the street, and the driver is seriously injured. If the dissenting opinions interpretation of Claiborne Hardware is correct, the First Amendment provides an absolute defense to liability for the jaywalker in a suit by the driver. This misstates the facts. There would be no protection for the jaywalker. But the First Amendment would, and should, protect the organizer of the protest. Doe is suing Mckesson because he cant find the jaywalker.

Mckesson appealed the Fifth Circuits decision, which the Supreme Court must now decide if it will hear. If it doesnt, it will essentially cosign the lower courts decision, irreparably damaging one of the most essential qualities of American democracy.

Here is the original post:
Federal Judge Reneges on Opinion in Deray Mckesson Case, Takes a Stand for First Amendment Right to Protest - The Root

The Supreme Court granted certiorari in two cases on Friday in addition to taking up appeals surrounding President Donald Trumps financial records.

The issue in McGirt v. Oklahoma is whether the prosecution of an enrolled member of the Creek Tribe for crimes committed within the historical Creek boundaries is subject to exclusive federal jurisdiction. The petitioner, McGirt, is seeking release from incarceration by petitioning the court that Oklahoma lacked jurisdiction to convict him for sex crimes committed against a child within Creek boundaries. In the writ of certiorari, Oklahoma argued that Sharp v. Murphy should have rendered the petition moot.

The court is reopening United States Agency for International Development v. Alliance for Open Society International, Inc. In 2013 the court held that the First Amendment bars enforcement of Congress directive to have a policy explicitly opposing prostitution and sex trafficking as a condition of accepting federal funds to combat HIV/AIDS abroad. The current question presented is whether the First Amendment further bars enforcement of that directive with respect to legally distinct foreign entities operating overseas that are affiliated with the Alliance for Open Society International, Inc.The United States Agency for International Development is arguing that the foreign recipients have no First Amendment rights to deny, while the Alliance for Open Society International is arguing that the previous decision should be final because it is the application of settled principles and there is no circuit split or conflict with the current precedent. Justice Elena Kagan took no part in the consideration of this petition.

See the original post here:
Supreme Court to hear Native American criminal procedure case and First Amendment question for foreign entities - JURIST

The Tallahassee-based First Amendment Foundation has a new leader. Pamela Marsh took over this month from the retiring Barbara Petersen, who will stick around for a while as a consultant.

Marsh is the former U-S Attorney for the Northern District of Florida. She has more than 20 years of legal experience and is a shareholder at the Ausley McMullen law firm in Tallahassee.

Listen to the interview with Pamela Marsh.

She says her new job shares some similarities with her time as both a private and government attorney. "I will still be helping others with the law and interpreting the law and thinking about applying the law to different sets of facts," Marsh says. "There's a lot of looking at new legislation, thinking of how bills will affect the public and change the law."

In the current political climate, Marsh says it's more important than ever for journalists and news consumers to dig deeper and rely on evidence rather than short sound bites. "That's what our public records law and our open government meetings laws really facilitate."

She says "we have to push back" against those who refuse to acknowledge the truth.

We've become so divided because I think the facts don't mean anything. ~Pamela Marsh

"We've become so divided because I think the facts don't mean anything, and if you say something three times, somebody is going to believe it," Marsh says. "That's why education is so important; real solid professional journalism is so important. If you just want to have an opinion, that's not the same thing."

Marsh is jumping into her new role with the legislative session just weeks away. Petersen will help her navigate these first few months, especially with more efforts at the Capitol to limit transparency. "We are currently looking at about 40 bills that either affect the public records law or the Sunshine Law in some way or have something to do with the First Amendment," Marsh says. She'll also promote membership in the First Amendment Foundation, which is free to students and open to anyone.

Originally posted here:
New Leader Of First Amendment Foundation Ready To Tackle Public Records And Fake News - WFSU

First Amendment

By Debra Cassens Weiss

December 17, 2019, 2:17 pm CST

Image from Shutterstock.com.

A federal appeals court decision criticized for its potential to chill protests is no longer unanimous.

The 5th U.S. Circuit Court of Appeals at New Orleans had unanimously ruled in April that a Louisiana police officer could sue the organizer of a Black Lives Matter protest for a serious injury caused when a different protester threw a heavy object, the Advocate had reported at the time.

On Monday, one of the panel members, Judge Don Willett, wrote that he had a judicial change of heart and issued a partial dissent. How Appealing and the Volokh Conspiracy noted the Dec. 16 opinion.

The American Civil Liberties Union has asked the U.S. Supreme Court to hear the case, the Washington Post reported Friday. Civil liberties lawyers have criticized the 5th Circuit decision for its potential to chill protests and impact activists First Amendment rights.

Willett, an appointee of President Donald Trump, said he had changed his mind on the First Amendment issue.

The officers complaint is skeletal, and it does not plausibly assert that [organizer DeRay] Mckesson forfeited First Amendment protection by inciting violence, Willett said. He cited NAACP v. Claiborne Hardware Co., a 1982 Supreme Court decision. The case held that the First Amendment protects fiery words that dont provoke or incite acts of violence, Willett said.

Before reaching the First Amendment issue, Willett said, the 5th Circuit should ask the Louisiana Supreme Court whether Louisiana law imposed a duty on the protest organizer to protect the officer from the criminal acts of others.

If theres no negligence, theres no case, Willett wrote. And if theres no case, theres no need to fret about the First Amendment.

But Willett did consider the First Amendment ramifications with references to pro-democracy protests in Hong Kong, tea party protests by American colonists, and civil rights marches by Martin Luther King Jr.

Willett wrote: Dr. Kings last protest march was in March 1968, in support of striking Memphis sanitation workers. It was prelude to his assassination a week later, the day after his Ive Been to the Mountaintop speech. Dr. Kings hallmark was nonviolent protest, but as he led marchers down Beale Street, some young men began breaking storefront windows. The police moved in, and violence erupted, harming peaceful demonstrators and youthful looters alike. Had Dr. King been sued, either by injured police or injured protesters, I cannot fathom that the Constitution he praised as magnificenta promissory note to which every American was to fall heirwould countenance his personal liability.

The officer suing Mckesson had alleged that he did nothing to calm Baton Rouge protesters throwing water bottles and led them onto the highway where he was injured. The protesters were responding to the July 2016 shooting death of Alton Sterling, who was shot by officers investigating a report of a man with a gun.

The 5th Circuit majority responded to Willett in its new opinion, which held that Mckessons speech was not necessarily protected by the First Amendment.

Mckesson should have known that leading the demonstrators onto a busy highway was most nearly certain to provoke a confrontation between police and the mass of demonstrators, yet he ignored the foreseeable danger to officers, bystanders and demonstrators, said the majority opinion by Judge E. Grady Jolly.

Claiborne Hardware doesnt insulate Mckesson from liability for his own negligent conduct simply because he intended to communicate a message, Jolly said.

View post:
5th Circuit judge has 'judicial change of heart' in case that could chill protests - ABA Journal