So the racist thugs went free. The First Amendment protects such hateful speech, not because it is harmless—it is not—but because a government that can outlaw such speech can outlaw criticism of itself. That is a fundamental principle of First Amendment law, and the Roberts Court is very careful to repeat it every time it protects the speech of corporations or the Koch brothers.

This takes us to Doe v. Mckesson, the civil suit against DeRay Mckesson decided on April 24 by a panel of the Fifth Circuit Court of Appeals. Mckesson is an African American civil-rights leader who has been prominently involved in the Black Lives Matter movement. As readers of this page know, Mckesson was at a protest in Baton Rouge where someone threw an object that injured a police officer; now the officer, proceeding under a pseudonym, wants Mckesson to pay him for his injuries, claiming that Mckesson “did nothing to calm the crowd” and “incited the violence.” A federal district court, drawing on the same case law as the California court, dismissed the case; Doe’s complaint did not, he noted, “state … how Mckesson allegedly incited violence or what orders he allegedly was giving.” Indeed, “the only public speech to which Plaintiff cites … is a one-sentence statement that Mckesson allegedly made to The New York Times: ‘The police want protestors to be too afraid to protest.’ … This statement falls far short of being ‘likely to incite lawless action,’ which Plaintiff would have to prove to hold Mckesson liable based on his public speech.”

But in April, a three-judge panel of the Fifth Circuit, without even bothering to hear oral argument, issued a surprise decision reversing the district court. The panel decided that Mckesson could be sued for the officer’s injuries—not because of his intent, but because he was careless. “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 … and notwithstanding did so anyway,” the panel wrote.

First Amendment specialists have a term for certain kinds of legal action—“chilling effect.” A hostile jury verdict might bankrupt a defendant; anyone might hesitate to lead or even take part in a protest if a plaintiff could take away his or her house or retirement fund because of something someone else does at the event. For this reason, tort suits were used as a weapon of terror against civil-rights leaders during the 1960s. Some of them lost cars and real estate after state-court judgments—until the Supreme Court, in cases like Claiborne Hardware and New York Times v. Sullivan, made clear that the First Amendment limits tort suits as surely as criminal prosecutions.

I know I am being rather a bore about this case; but the stakes are high, and the Fifth Circuit panel’s offense is rank. The decision was not simply lawless, but insolently so. The full court of appeals has a chance to rectify this, by granting the petition for rehearing, vacating the panel opinion, and deciding the case properly.