It' is not often that judges confess error or change their mind, so when they do it's worth taking note. After all, we expect judges to approach cases with an open mind, willing to consider arguments fairly despite any initial skepticism.

Today, the U.S. Court of Appeals for the Fifth Circuit issued a revised opinion in Doe v. Mckesson, a tort suit against activist Deray Mckesson for allegedly inspiring protests that turned violent. The Fifth Circuit is allowing the suit to proceed, but Judge Don Willett has come to believe his colleagues are insufficiently sensitive the First Amendment implications of letting the suit go forward.

His opinion concurring in part and dissenting in part begins:

I originally agreed with denying Mckesson's First Amendment defense. But I have had a judicial change of heart. Further reflection has led me to see this case differently, as explained below. Admittedly, judges aren't naturals at backtracking or about-facing. But I do so forthrightly. Consistency is a cardinal judicial virtue, but not the only virtue. 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."

On the First Amendment question, he writes:

Even assuming that Mckesson could be sued under Louisiana law for "negligently" leading a protest at which someone became violent, the First Amendment "imposes restraints" on what (and whom) state tort law may punish. Just as there is no "hate speech" exception to the First Amendment, "negligent" speech is also constitutionally protected. And under Claiborne Hardware (and a wealth of precedent since), raucous public protest—even "impassioned" and "emotionally charged" appeals for the use of force—is protected unless clearly intended to, and likely to, spark immediate violence. . . . Holding Mckesson responsible for the violent acts of others because he "negligently" led a protest that carried the risk of potential violence or urged the blocking of a road is impossible to square with Supreme Court precedent holding that only tortious activity meant to incite imminent violence, and likely to do so, forfeits constitutional protection against liability for violent acts committed by others.64 With greatest respect, I disagree with the majority opinion's First Amendment analysis—both its substance and its necessity. . . .

The opinion ends with a flourish: