Selma marchers, 1965 Credit: Spider Martin

On Sunday, sheriff’s deputies in Alamance County, North Carolina, brutally dispersed a legal march to the early voting site in the town of Graham. A number of marchers were on their way to cast their votes; they were gassed and jailed for their pains.

Video posted to social media shows a woman using a mobility chair suffering a seizure as officers in tactical gear pepper-sprayed the area.

Because it is 2020, my first thought was, How long will it be before one of these deputies sues that woman for his emotional distress at her ill-mannered seizure?

Here’s the connection. The day after the police riot in Alamance, on Monday, the Supreme Court vacated a lower court opinion called Mckesson v. Doe. That case asked whether police officers could sue protest leaders if someone else at a protest turns violent—even if the leader did not instigate, call for, or plan the violence. The Fifth Circuit had held, repeatedly and grotesquely, that they can. The high court’s order means that, for now, that wretched precedent is dead. But the Court could have put a stake in its heart, and it chose not to. That ought to concern us all.

The Fifth Circuit’s precedent meant that a citizen who organizes a peaceful protest can be bankrupted if someone unknown (perhaps a Boogaloo Boi, and indeed perhaps an undercover cop) hits an officer with a brick or sets a building on fire. If that becomes the law, then peaceful protest in the United States is on life support.  

The Fifth Circuit has bungled this case four times. The resulting precedent (now voided) was a severe threat to free assembly and protest in the entire Fifth Circuit—the states of Louisiana, Mississippi, and Texas. It could also have offered a pathway for the newly Trumpified federal bench elsewhere to close down Black Lives Matter and other pesky left-wing protests without all the fuss of prosecution.

I feel about this case roughly the way Captain Ahab felt about Moby Dick. (My previous writings, which begin with a dull roar and ascend through shrill whine, are to be found here, here, here, and here.) The reason is exemplified by what happened in Alamance County, N.C., on Sunday: a police assault on a peaceful march by voters to the polling place. If the footage looks like Selma, 1965, it’s because there are towns all over the South (and elsewhere) where powerful white elites have not given up the hope of maintaining complete control.

If the struggle hasn’t changed, neither have the tactics. Suing protesters was a stratagem used by white officials during the Civil Rights Movement to threaten and bankrupt Black leaders. The Supreme Court shut the door on the tactic in a 1982 case called NAACP v. Claiborne Hardware. In that case, civil rights leaders had called for a boycott of white-owned stores in Port Gibson, Mississippi. (Just to underline the historical connections, the boycott was sparked by the police killing of a local Black man.) Over time, some of the participants threatened other Black residents with harm if they shopped in the boycotted stores; they also committed acts of vandalism. The merchants sued the NAACP and its local leader, Charles Evers (brother of the murdered Medgar Evers) for damages, on the basis that the boycott was unlawful and violent. The Supreme Court, noting that an important First Amendment principle was at stake, would have none of it: by a vote of 8-0, it held that unless the defendants “authorized, directed, or ratified specific tortious activity,” explicitly “incited” violence, or ordered others to carry out violent acts, there could be no liability. Those who carry out violent acts, of course, can be arrested or sued; but there couldn’t be liability by association.

There matters stood until the advent of legendary fringe lawyer Larry Klayman. Klayman’s record is too extensive to cite, but he has brought lawsuits against Hillary Clinton (Benghazi), Barack Obama (Kenya, you know); CNN (speaking ill of Klayman), the Chinese government (coronavirus) and—well–his own mother (grandmother’s medical expenses). Klayman originated the idea of suing the entire #blacklivesmatter hashtag and also individual leaders of BLM protests. That idea was taken up by lawyers for “Officer Doe,” an unnamed Baton Rouge police officer. Doe was injured by a thrown object during a 2016 protest in front of the Baton Rouge police department; protesters had taken to the street after BRPD officers shot a Black man named Alton Sterling. DeRay Mckesson, who is a peripatetic organizer and speaker on BLM topics, was present. There’s no evidence that he engaged in violent acts himself or urged anyone else to. Nonetheless, because someone threw an object and injured “Officer Doe,” the officer sued Mckesson. A federal district judge, citing Claiborne Hardware, dismissed the case. Doe appealed.

At this point, the Fifth Circuit Court of Appeals screwed the case up beyond recognition. That court was already aggressively conservative in 2017; with the addition of six Trump appointees, it has now become effectively a law-free zone. Without hearing argument, a three-judge panel decided that First Amendment or not, Doe could sue Mckesson. Mckesson asked for rehearing en banc; instead, the same panel decided it agreed with itself. The outcry grew, however, and soon one of the Trump appointees, Don Willett of Texas, issued a new opinion dissenting from the panel’s decision on First Amendment grounds; finally, the full Fifth Circuit (again without even notifying anyone) considered yet another re-hearing and deadlocked 8-8. Thus, the panel’s latest decision stood.

That meant DeRay Mckesson would face trial, and potentially ruinous damages, for “negligently” protesting—meaning he should have controlled every person present. The precedent is chilling. “Negligent protest,” so far, has not a thing in the United States.

Mckesson’s lawyers from the ACLU petitioned the Supreme Court to hear the case. On Monday, the Court issued what is called a “GVR”—meaning it 1) granted review, 2) immediately vacated the lower court opinion, and 3) remanded the case to the Fifth Circuit.

But there was only a semi-ringing endorsement of the Fifth Amendment. Instead, the unsigned opinion faulted the Fifth Circuit by noting that Louisiana tort law may not permit Doe’s lawsuit, First Amendment or no. To avoid deciding a case with only a “hypothetical” First Amendment issue, the Supreme Court sent the case back down to the Fifth Circuit. And it told the lower court to “certify” the state law tort issue—can an officer sue a protest organizer for “negligent” protest?– to the Louisiana Supreme Court. If the answer is no, then the First Amendment question is moot.

That order means that, instead of being thrown out, the case could come back. Vera Edelman, an ACLU staff attorney, pointed to language in the Supreme Court opinion citing Claiborne Hardware and commented, “We are gratified the Supreme Court has recognized there are important First Amendment issues at stake.” One of the unsettled questions is whether Louisiana law ever allows a police officer to sue members of the public for on-the-job injuries.

Timothy Zick, a professor at the William & Mary School of Law, also said he was “heartened” by that language. But he warned that the idea of suing protest organizers “will probably resurface” and “a case involving a non-law enforcement plaintiff might avoid the tort complications present here.”

Officer Doe’s lawyer, Donna Grobner, said in an email: “The decision signifies that the Fifth Circuit got it right.” She expressed optimism that the Louisiana court would resolve the state law issue in Doe’s favor.

In Monday’s decision, the Court took an easy way out. That may mean there is resistance inside the Court to reaffirming Claiborne Hardware’s defense of free assembly. Justice Clarence Thomas dissented even from this mild tort-law-oriented decision. That is yet another signal that venerable First Amendment precedents may be destabilized by the lightning conservative takeover of the Court.

Even before the Supreme Court was Trumpified, the conservative majority for two decades had been carefully constructing the First Amendment’s protections for millionaires and eroding them for anyone else. “Independent expenditures” and campaign contributions (assiduously protected under Roberts Court precedent) are weapons of the rich; street protest, guaranteed specifically in the First Amendment’s text as “peaceable assembly,” is the tactic of ordinary citizens.

Of course, the police have weapons of their own. The people of Alamance County learned that to their cost yesterday when some of them tried to vote and were met with guns, shields, pepper spray, tear gas, and other “less-lethal” weapons. Imagine now how much courage it would take to face the Alamance Sheriff’s Department if demonstrators also knew that the officers who gas and beat them could also sue them afterwards.

Garrett Epps

Follow Garrett on Twitter @ProfEpps. Garrett Epps is legal affairs editor of the Washington Monthly. He has taught constitutional law at American University, the University of Baltimore, Boston College, Duke, and the University of Oregon. He is the author of American Epic: Reading the U.S. Constitution.