Garrett Epps: Don’t let the First Amendment forget DeRay Mckesson

This is a theory of liability unknown to the First Amendment. In an important case arising from the civil-rights movement, the Court held in 1982 that protest leaders can’t be sued for the violent actions of others unless the plaintiffs can show that the leaders themselves either engaged in violence or incited or directed the violence. Doe alleged “incitement,” but made no real attempt to show it.

Garrett Epps: Don’t let the First Amendment forget DeRay Mckesson

The First Amendment and civil-liberties communities were shocked by the Fifth Circuit’s original decision, issued in April, which brushed aside the First Amendment with the breezy bromide that “the First Amendment does not protect violence.” The decision was unanimous—Willett was on the panel, but the opinion was written by Judge E. Grady Jolly. (Judge Jennifer Walker Elrod was the third member.) That opinion was a dagger pointed at the heart of the treasured American right to protest against government action. If protest organizers can be sued, and possibly ruined, by lawsuits if anyone at their protest (even, say, an undercover police officer) turns violent, no ordinary citizen would dare organize protests.

Mckesson’s lawyers asked the Fifth Circuit to rehear the case en banc (as a full court); in response, the same panel withdrew its original opinion and substituted a new one that said, in legal verbiage, “We agree with ourselves and by golly, we are right.”

The case landed in the Supreme Court’s inbox on December 6. Mckesson’s petition for the Court to hear the case, written by lawyers from the American Civil Liberties Union, pointed out that the Fifth Circuit panel decision flatly defied the Court’s own precedent in a landmark case called NAACP v. Claiborne Hardware. Advocates of free speech were holding their collective breath waiting to see whether this Court, which preens as a First Amendment champion when the rights of corporations or the rich are at issue, would call out the wayward panel or silently ratify its radical change in the law.

The latter course just got harder. Willett, a Trump appointee and former Texas Supreme Court justice, has now changed his vote and issued a full-throated defense of the idea that free speech covers even unruly protest.

“I have had a judicial change of heart,” Willett wrote. “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.’”

The words are true, and the practice of judicial self-examination is, while not unheard-of, regrettably rare. In this case, reexamination led Willett to see two gaping holes in the majority’s case. First, he pointed out, despite the panel’s earlier decision, it’s not clear that even Louisiana tort law would support a lawsuit against Mckesson. To reach that conclusion, the panel had to, in essence, make new Louisiana state law. Every second-year law student knows that is a practice courts of appeals are supposed to avoid—especially when doing so creates a federal constitutional issue.