Ian Millhiser writing for Vox: Trump judge says his ruling attacking protesters’ First Amendment rights was wrong
Willett’s new opinion argues that protest leaders like Mckesson are generally protected by the First Amendment if a rogue member of their protest commits a criminal act. While there is no question that “Officer Doe can sue the rock thrower,” Willett concludes that “the Constitution that Officer Doe swore to protect itself protects Mckesson’s rights to speak, assemble, associate, and petition.”
The headline focuses on the disent of a Trump appointed judge against a civil rights organizer’s liability in a violent action done by someone else at a rally that the organizer had organized. The real story focuses on that a federal court is ruling against Deray McKesson, despite Supreme Court rulings in the past that should keep him from being liable, as he did not direct this individual to harm anyone else.
The Fifth Circuit majority’s opinion is at odds with the Supreme Court’s decision in Claiborne Hardware. According to Judge E. Grady Jolly, who wrote the majority opinion, Mckesson allegedly “directed the demonstrators to engage in the criminal act of occupying [a] public highway” near the police building. That, Jolly suggests, can be enough to strip Mckesson of his First Amendment rights.
If Jolly is correct about the Constitution, then Martin Luther King Jr. gave up his First Amendment rights the minute he violated a traffic law. It’s now up to the Supreme Court to decide if Jolly’s decision should stand.
I hope McKesson comes out on top for this one, or it will definitely open up legal issues for those who demonstrate against perceived abuses by their government.