This story (more here and here) hasn’t gotten much mainstream attention, so far as I know, but it presages a monumental change in the law. There will soon be, if there not already is, one set of laws for the right and another for the left, one set of laws for right wing “Christians” and another for all other religions, one set of laws for the rich and another for everyone else (I know there already is, but it will be more explicit) and, any day now, one set of laws for white people and another for everybody else. After all, was separate but equal really such a bad thing? We will soon return to the nation envisioned by Founding Fathers such as John Taney, Jefferson Davis, and modern incarnations such as George Wallace.
To get to the point: DeRay McKesson is being sued by a cop who was injured by a rock thrown by a person unknown at a Black Lives Matters demonstration McKesson organized in Louisiana. The issue was summarized at SCOTUSBlog as follows:
[Does] the First Amendment and this court’s decision in NAACP v. Claiborne Hardware Co. foreclose a state law negligence action making a leader of a protest demonstration personally liable in damages for injuries inflicted by an unidentified person’s violent act, when it is undisputed that the leader neither authorized, directed, nor ratified the perpetrator’s act, nor engaged in or intended violence of any kind.
The relevant case law says NO!, but that case law was written long ago in a galaxy far far away, and the Fifth Circuit, packed with right wing ideologues says that the relevant case law doesn’t prevent it from holding against McKesson, who, after all, is black and pushes an ideology (you know, equal rights for everyone) that they don’t like. So:
Instead, in its most recent opinion in this case, the Fifth Circuit concluded that Claiborne’s “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.”
As the dissent pointed out (remarkably, there is at least one Fifth Circuit judge that is not completely bonkers) the decision could make protest organizers liable for “the unlawful acts of counter-protestors and agitators”, and as they point out at Vox, “a Ku Klux Klansman could sabotage the Black Lives Matter movement simply by showing up at its protests and throwing stones.” Some might argue that it would follow that a Black Lives Matter follower could sabotage a Klan rally in the same way, but have no fear, the 5th Circuit would find a way to nix that idea.
These kinds of decisions are becoming more common. It’s particularly hard for people my age to wrap their heads around this sort of thing, because we grew up in a sort of golden age as far as the Supreme Court and most of the lower courts were concerned. We thought cases such as Dred Scott and Plessy vs. Ferguson were things of the past, but in fact we simply lived in a brief intermission.
We now have courts that will bend the facts and the law to arrive at their preferred conclusion. They believe, to paraphrase Orwell, that all people are equal, but some are more equal than others.
The Supreme Court has declined to review the 5th Circuit’s decision. It is still marginally possible that they will reverse it after the McKesson case goes to trial if McKesson loses. The case was before the 5th Circuit after a sane lower court judge dismissed it. Personally, the fact that they didn’t reverse it immediately fills me with dread that we’ll soon be seeing a decision explaining that while Trump is immune from all criminal prosecution don’t expect the same rule to apply to a Democratic president. On that subject, I really wish the Biden administration would weigh in and tell the judges that if presidents are in fact immune, he’s seriously considering sending some special ops guys to visit certain justices in their chambers and let off a few rounds, after which he will pardon the special ops guys and he will get to appoint new judges.
Look forward to cases similar to the McKesson case in the future. Certainly it should be legal to refuse to serve black people in my restaurant if my closely held religious beliefs compel me to refuse said service. (This decision not applicable if the person refused is white.) It should be perfectly legal for a college or university to prefer the sons and daughters of rich (overwhelmingly white) alumni over far more qualified applicants, despite the fact that those same colleges and universities are barred from considering race when choosing among qualified applicants. It’s perfectly fine to gerrymander to increase white voting power but don’t try doing the opposite. The list goes on, and under our current system of government there’s nothing much we can do about it, as the minority controls both in our courts and in our legislatures.
On a sort of unrelated but related note, I’m proud to say the McKesson is an alum of my Alma Mater, Bowdoin College. Back when I was working, I would listen to his podcast as I drove back and forth to work. Those were pre-pandemic days when office workers still worked in their offices, at least on occasion. I met him at the most recent reunion I attended. He’s a loyal alum, so Bowdoin must have treated him well. Based on what I’ve read about this case, he’s not letting it deter him from continuing his work.
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