1 00:00:01,760 --> 00:00:05,240 Speaker 1: Also media. 2 00:00:08,600 --> 00:00:11,320 Speaker 2: Hi, everyone, welcome to the podcast. It's me James and 3 00:00:11,360 --> 00:00:14,840 Speaker 2: I'm joined today by Moe, who is an attorney, educator 4 00:00:14,880 --> 00:00:17,920 Speaker 2: and abolitionists've been on the show before. We've very much 5 00:00:18,000 --> 00:00:21,120 Speaker 2: enjoyed the contributions. We're here today to talk about the 6 00:00:21,400 --> 00:00:24,400 Speaker 2: recent Supreme Court not not decision right, but the Supreme 7 00:00:24,400 --> 00:00:26,960 Speaker 2: Court declining to hear a case. It's been reported a 8 00:00:26,960 --> 00:00:30,440 Speaker 2: little bit. Perhaps I think the importance of it may 9 00:00:30,480 --> 00:00:32,920 Speaker 2: have been overstated, and it's going to help us understand that. 10 00:00:33,520 --> 00:00:34,680 Speaker 2: How are you How are you doing today? 11 00:00:34,680 --> 00:00:37,280 Speaker 3: Mo, I'm doing all right. How are you doing? 12 00:00:37,680 --> 00:00:39,760 Speaker 2: I'm doing well. It's a nice day. Went for a 13 00:00:39,800 --> 00:00:43,080 Speaker 2: run this morning, saw some flowers, picked some fennel. That 14 00:00:43,200 --> 00:00:44,400 Speaker 2: was nice. 15 00:00:44,640 --> 00:00:45,520 Speaker 3: Yeah, that's very nice. 16 00:00:45,600 --> 00:00:47,960 Speaker 2: Yeah, wild fannel. If you live in southern California now 17 00:00:48,040 --> 00:00:52,800 Speaker 2: so time. Just a little tip from me, don't get 18 00:00:52,800 --> 00:00:54,280 Speaker 2: it at the height that dog's pe. You want to 19 00:00:54,320 --> 00:00:55,000 Speaker 2: go above that. 20 00:00:55,640 --> 00:00:56,480 Speaker 3: It's a pro tip. 21 00:00:57,200 --> 00:00:59,080 Speaker 2: You can't say that. We don't fill this podcast with 22 00:00:59,120 --> 00:01:05,680 Speaker 2: a little Easter eggs. Talking of little Easter eggs, let's 23 00:01:05,720 --> 00:01:10,160 Speaker 2: get into the things that are buried within this. What 24 00:01:10,200 --> 00:01:12,479 Speaker 2: happened was the Supreme Court declined to hear a case. 25 00:01:12,560 --> 00:01:13,039 Speaker 2: Is that right? 26 00:01:13,640 --> 00:01:18,240 Speaker 3: That's right. So the case that the Supreme Court declined 27 00:01:18,319 --> 00:01:24,240 Speaker 3: to hear is McKesson b. Dough. This is a case 28 00:01:24,280 --> 00:01:28,240 Speaker 3: that they have declined to hear eight times, and it 29 00:01:28,360 --> 00:01:32,360 Speaker 3: keeps going back up and down from I think the 30 00:01:32,360 --> 00:01:38,440 Speaker 3: Middle District of Louisiana to the Fifth Circuit all the 31 00:01:38,440 --> 00:01:41,800 Speaker 3: way up to the Supreme Court. And it's a case 32 00:01:42,120 --> 00:01:46,160 Speaker 3: that involves the First Amendment, and the way that it 33 00:01:46,200 --> 00:01:50,960 Speaker 3: has been reported, I think, or at least the way 34 00:01:51,000 --> 00:01:57,240 Speaker 3: that it has been received, particularly by communities of people 35 00:01:57,240 --> 00:02:01,240 Speaker 3: who do engage in a lot of First Amendments protected activity, 36 00:02:02,360 --> 00:02:06,320 Speaker 3: has been with a certain amount of panic. That the 37 00:02:06,360 --> 00:02:09,799 Speaker 3: Supreme Court saying we're not going to hear this case. 38 00:02:09,960 --> 00:02:12,880 Speaker 3: We're going to kick it back down to the Fifth Circuit, 39 00:02:12,919 --> 00:02:15,120 Speaker 3: We're going to kick it back down to the district court, 40 00:02:16,120 --> 00:02:21,200 Speaker 3: is you know, a harbinger of terrible things to come 41 00:02:21,960 --> 00:02:25,320 Speaker 3: for the right to protest and for the kinds of 42 00:02:25,360 --> 00:02:29,239 Speaker 3: liability that you might be exposed to if you are 43 00:02:29,400 --> 00:02:35,720 Speaker 3: engaging in protest. And there is some truth to that. 44 00:02:36,720 --> 00:02:42,120 Speaker 3: It is I would say, often dangerous to engage in 45 00:02:42,800 --> 00:02:47,480 Speaker 3: acts of dissent. But I think that there's some real 46 00:02:47,560 --> 00:02:51,000 Speaker 3: misapprehension of what's going on with this particular case, and 47 00:02:51,080 --> 00:02:53,720 Speaker 3: so I thought it was worth having a conversation with 48 00:02:53,800 --> 00:02:56,919 Speaker 3: you to try to clarify a little bit about what's 49 00:02:56,960 --> 00:03:02,480 Speaker 3: going on here, what the risk saw are associated specifically 50 00:03:02,560 --> 00:03:06,920 Speaker 3: with this case, and what the risks actually are on 51 00:03:06,960 --> 00:03:10,600 Speaker 3: the ground with respect to protest, and also to talk 52 00:03:10,639 --> 00:03:12,960 Speaker 3: to you about some of the resources that are available 53 00:03:13,040 --> 00:03:14,040 Speaker 3: to protect yourself. 54 00:03:14,200 --> 00:03:14,720 Speaker 2: Wonderful. 55 00:03:14,840 --> 00:03:18,000 Speaker 3: Yeah, So I guess to give you a little roadmap. 56 00:03:18,080 --> 00:03:20,919 Speaker 3: I think I'll start by talking to you about what 57 00:03:21,320 --> 00:03:24,760 Speaker 3: is actually the law on the ground at this point 58 00:03:24,800 --> 00:03:27,720 Speaker 3: with respect to the First Amendment and rights to protest? Yes, 59 00:03:28,320 --> 00:03:32,720 Speaker 3: have those rights actually been meaningfully altered by this case 60 00:03:32,800 --> 00:03:35,440 Speaker 3: or by the Supreme Court declining to hear this case? 61 00:03:36,480 --> 00:03:40,000 Speaker 3: Has it actually become more dangerous to protest? Are there 62 00:03:40,120 --> 00:03:43,040 Speaker 3: things that we should be worried about? What are they? 63 00:03:43,560 --> 00:03:46,800 Speaker 3: And then what kinds of resources there are? I guess 64 00:03:46,840 --> 00:03:48,560 Speaker 3: the first thing I'm going to do is give you 65 00:03:48,600 --> 00:03:52,480 Speaker 3: a very brief premmer on the First Amendment. So, the 66 00:03:52,520 --> 00:03:56,360 Speaker 3: First Amendment guarantees, as I like to say, the very 67 00:03:56,400 --> 00:03:59,920 Speaker 3: First Amendment guarantees our rights to speech. In a sum 68 00:04:00,640 --> 00:04:02,800 Speaker 3: the government can place limits on the time, place, and 69 00:04:02,920 --> 00:04:07,280 Speaker 3: manner of your protest. But the government is not authorized 70 00:04:07,320 --> 00:04:12,320 Speaker 3: to criminalize speech based on subject matter or viewpoint, and 71 00:04:12,360 --> 00:04:15,920 Speaker 3: it can't impose what's called a prior restraint on speech, 72 00:04:16,880 --> 00:04:21,680 Speaker 3: which can include making it so risky to speak that 73 00:04:21,760 --> 00:04:27,320 Speaker 3: people engage in self censorship. But the First Amendment doesn't 74 00:04:27,440 --> 00:04:37,760 Speaker 3: immunize you from prosecution or civil liability for otherwise unlawful conduct, right. 75 00:04:37,920 --> 00:04:42,919 Speaker 3: So that's why true threats of violence are not protected 76 00:04:42,960 --> 00:04:47,680 Speaker 3: by the First Amendment right, And it doesn't protect you 77 00:04:47,960 --> 00:04:53,719 Speaker 3: from being arrested for behavior just because that behavior is 78 00:04:53,720 --> 00:04:58,720 Speaker 3: politically motivated, which is why breaking Starbucks windows and graffiti 79 00:04:59,040 --> 00:05:02,760 Speaker 3: and a fascination are not protected by the First Amendment. 80 00:05:03,440 --> 00:05:03,680 Speaker 2: Right. 81 00:05:05,360 --> 00:05:09,720 Speaker 3: On the other hand, the fact that there are one 82 00:05:09,839 --> 00:05:15,400 Speaker 3: or more people at a demonstration who are acting unlawfully 83 00:05:16,240 --> 00:05:20,640 Speaker 3: does not strip the larger demonstration of First Amendment protection. 84 00:05:21,720 --> 00:05:22,240 Speaker 2: Right. 85 00:05:22,839 --> 00:05:28,239 Speaker 3: And that principle comes from a case called NAACP versus 86 00:05:28,320 --> 00:05:34,040 Speaker 3: Claiborne Hardware and Claiborne. It was decided in nineteen eighty two, 87 00:05:35,040 --> 00:05:39,160 Speaker 3: and it was a case where the NAACP was sued 88 00:05:40,120 --> 00:05:45,760 Speaker 3: civilly on the basis that they had organized a protest 89 00:05:46,279 --> 00:05:50,240 Speaker 3: where some people in the crowd had caused some damage. 90 00:05:51,120 --> 00:05:56,680 Speaker 3: I see this is a very very similar case to 91 00:05:57,400 --> 00:06:03,400 Speaker 3: the underlying case in In this situation, where Deray McKesson 92 00:06:04,600 --> 00:06:13,640 Speaker 3: has been sued civilly, meaning he's being sued for money damages, 93 00:06:14,120 --> 00:06:19,159 Speaker 3: he is not being criminally prosecuted, right, That's an important distinction. So, 94 00:06:19,240 --> 00:06:20,760 Speaker 3: you know what, let's back up a little bit. 95 00:06:21,040 --> 00:06:25,599 Speaker 2: So, yeah, can you explain who is Deray McKesson. Why 96 00:06:25,680 --> 00:06:28,760 Speaker 2: is Deray McKesson bouncing up and down between Louisiana and 97 00:06:28,800 --> 00:06:30,040 Speaker 2: the Supreme Court? 98 00:06:30,520 --> 00:06:33,799 Speaker 3: Yes? Okay, So I'm going to back up even farther 99 00:06:33,920 --> 00:06:37,640 Speaker 3: than that. The reason that we are here today, that 100 00:06:37,680 --> 00:06:39,479 Speaker 3: I am here with you talking about this case is 101 00:06:39,480 --> 00:06:43,080 Speaker 3: that the way that this case is being reported on 102 00:06:43,240 --> 00:06:46,719 Speaker 3: or received is that people are going, oh god, it's 103 00:06:46,920 --> 00:06:49,240 Speaker 3: now illegal to protest, and we're all going to go 104 00:06:49,279 --> 00:06:54,440 Speaker 3: to prison for protesting. Like, okay, I mean, first of all, please, 105 00:06:54,560 --> 00:06:58,640 Speaker 3: using mass arrest of protesters to chill in silence speech 106 00:06:59,200 --> 00:07:04,839 Speaker 3: is already a time honored American tradition. Yes, but that 107 00:07:05,040 --> 00:07:09,000 Speaker 3: isn't what this case is about. This is a civil case, 108 00:07:09,880 --> 00:07:13,680 Speaker 3: which means that somebody is being sued for money damages 109 00:07:14,480 --> 00:07:16,800 Speaker 3: and the person who's being sued is de Ray McKesson. 110 00:07:17,160 --> 00:07:20,880 Speaker 3: Deray McKesson was, at one point, for anyone who can 111 00:07:20,920 --> 00:07:28,280 Speaker 3: remember a decade ago, was very high profile, very visible 112 00:07:28,560 --> 00:07:32,760 Speaker 3: in the Black Lives Matter movement in Ferguson and in 113 00:07:32,800 --> 00:07:39,160 Speaker 3: Baltimore and then later in Louisiana, And he was somebody 114 00:07:39,240 --> 00:07:42,480 Speaker 3: who was very visible in the media. He made a 115 00:07:42,480 --> 00:07:45,400 Speaker 3: lot of public statements. He made a lot of public 116 00:07:45,400 --> 00:07:50,400 Speaker 3: statements on behalf of Black Lives Matter, which you know 117 00:07:50,520 --> 00:07:54,760 Speaker 3: I'm going to get into is not a membership organization, 118 00:07:55,600 --> 00:07:58,200 Speaker 3: but he made a bunch of statements as though he 119 00:07:58,400 --> 00:08:04,440 Speaker 3: were the representative of a movement which he referred to 120 00:08:04,520 --> 00:08:08,640 Speaker 3: as Black Lives Matter. He organized a lot of protests. 121 00:08:09,120 --> 00:08:11,000 Speaker 3: I think at one point I have a memory that 122 00:08:11,040 --> 00:08:15,440 Speaker 3: he ran for office. So he was a very visible 123 00:08:16,960 --> 00:08:22,080 Speaker 3: movement organizer, right. He organized a protest in I believe 124 00:08:22,120 --> 00:08:27,520 Speaker 3: twenty seventeen in the wake of the police murder of 125 00:08:28,280 --> 00:08:34,400 Speaker 3: Altms Sterling, at which a police officer was hit in 126 00:08:34,480 --> 00:08:37,640 Speaker 3: the head with a hard object, a rock or a 127 00:08:37,640 --> 00:08:41,160 Speaker 3: piece of concrete, and he was like the police officer 128 00:08:41,320 --> 00:08:48,280 Speaker 3: was injured, like pretty seriously, yeah, And he then sued 129 00:08:49,320 --> 00:08:56,920 Speaker 3: Deray McKesson for money damages on the theory that because 130 00:08:57,120 --> 00:09:03,160 Speaker 3: he had organized the protest, he had control of the protest, 131 00:09:04,120 --> 00:09:08,280 Speaker 3: and he had some responsibility for the fact that this 132 00:09:08,400 --> 00:09:14,520 Speaker 3: other person had thrown a rock at him. This theory 133 00:09:14,640 --> 00:09:18,480 Speaker 3: requires a real failure to understand social movements and distributed 134 00:09:18,520 --> 00:09:22,720 Speaker 3: networks because what it presumes, and I think we've talked 135 00:09:22,720 --> 00:09:27,760 Speaker 3: about this before on this show, is the inability of 136 00:09:28,559 --> 00:09:35,480 Speaker 3: the police and the courts to understand that not every 137 00:09:35,800 --> 00:09:42,199 Speaker 3: social movement operates with a clear hierarchy like the police 138 00:09:42,720 --> 00:09:47,840 Speaker 3: or the military. Because their social movement groups do imitate 139 00:09:48,160 --> 00:09:52,040 Speaker 3: the military, they do imitate that hierarchy. They totally reproduce 140 00:09:52,600 --> 00:09:55,800 Speaker 3: this sort of chain of command theory. So if you 141 00:09:55,880 --> 00:10:00,439 Speaker 3: look at the clan, right, they are organized by they 142 00:10:00,440 --> 00:10:04,480 Speaker 3: are incorporated, they have a membership, there is a clear hierarchy, 143 00:10:04,640 --> 00:10:07,200 Speaker 3: who is in charge, who is giving orders, who is 144 00:10:07,240 --> 00:10:08,040 Speaker 3: following orders? 145 00:10:08,640 --> 00:10:12,520 Speaker 2: Right, That is not the case Proud Boys Patriot Front, 146 00:10:12,600 --> 00:10:16,680 Speaker 2: like Very's of organizing without authority and the conceiving of 147 00:10:16,720 --> 00:10:19,240 Speaker 2: anyone doing so, it would seem right. 148 00:10:19,360 --> 00:10:22,360 Speaker 3: And so I think I've told you before. I've actually 149 00:10:22,400 --> 00:10:25,240 Speaker 3: had to drop footnotes in federal court filings to explain 150 00:10:25,600 --> 00:10:28,120 Speaker 3: that Antifa is not a membership organization. 151 00:10:29,160 --> 00:10:31,560 Speaker 2: Yeah, this is a discussion that I have been privy 152 00:10:31,559 --> 00:10:35,920 Speaker 2: to as a historian of the same organization. Yeah, originally 153 00:10:36,000 --> 00:10:40,439 Speaker 2: it was ironically right that the KPg was. Yeah, when 154 00:10:40,480 --> 00:10:42,480 Speaker 2: we're referring it to that, we're not talking about nineteen 155 00:10:42,520 --> 00:10:44,360 Speaker 2: thirty three Germany. No. 156 00:10:45,240 --> 00:10:50,840 Speaker 3: So you know when someone says and this becomes relevant 157 00:10:51,080 --> 00:10:56,760 Speaker 3: here because the initially when this suit was filed, it 158 00:10:56,800 --> 00:11:01,800 Speaker 3: was two different lawsuits, and it was a group of 159 00:11:01,840 --> 00:11:04,520 Speaker 3: police officers who had been shot in different places in 160 00:11:04,559 --> 00:11:10,000 Speaker 3: the country, suing not only Dura McKesson, but Black Lives Matter. 161 00:11:10,600 --> 00:11:15,480 Speaker 3: And I think in fact, one of the defendants who 162 00:11:15,559 --> 00:11:19,000 Speaker 3: was named in one of the initial suits was hashtag 163 00:11:19,040 --> 00:11:21,320 Speaker 3: black Lives Matter. So I don't know how you serve 164 00:11:21,360 --> 00:11:22,000 Speaker 3: a hashtag. 165 00:11:22,480 --> 00:11:26,040 Speaker 2: Yeah, fascinating, totally fascinating. 166 00:11:26,080 --> 00:11:29,839 Speaker 3: I mean, the legal theory underlying these cases was pretty bonkers. 167 00:11:30,840 --> 00:11:35,720 Speaker 3: And then various other individuals who were part of different 168 00:11:35,760 --> 00:11:42,840 Speaker 3: Black Lives Matter groups. Right, the initial suit that went 169 00:11:42,920 --> 00:11:49,480 Speaker 3: after all these people and hashtags for the shootings were 170 00:11:49,679 --> 00:11:54,520 Speaker 3: really just legally insufficient. Right, The allegations that were made 171 00:11:54,520 --> 00:11:59,800 Speaker 3: were black Lives Matter whatever that is made statements about 172 00:12:00,200 --> 00:12:03,920 Speaker 3: policing is unjust and police shouldn't be surprised if there's 173 00:12:04,200 --> 00:12:07,560 Speaker 3: you know, if they encounter resistance, and then these other 174 00:12:07,760 --> 00:12:11,880 Speaker 3: people kind of showed up and shot at cops. And 175 00:12:12,120 --> 00:12:17,240 Speaker 3: the theory is that by sort of making these statements, 176 00:12:18,440 --> 00:12:25,360 Speaker 3: Black Lives Matter encouraged or incited and was responsible for 177 00:12:25,440 --> 00:12:29,440 Speaker 3: these shootings. Yes, this is not a This is not 178 00:12:29,480 --> 00:12:32,440 Speaker 3: a valid legal theory, right, I mean, it just is not. 179 00:12:33,480 --> 00:12:37,000 Speaker 3: And that case was dismissed, you know, just entirely. And 180 00:12:37,040 --> 00:12:39,160 Speaker 3: then the second case it was brought was this one 181 00:12:39,200 --> 00:12:41,000 Speaker 3: where the guy who was hit in the head with 182 00:12:41,040 --> 00:12:44,120 Speaker 3: a rock, and it's the same allegations, the same theory 183 00:12:44,480 --> 00:12:48,520 Speaker 3: of liability, and everybody got dismissed out of that case. 184 00:12:48,559 --> 00:12:50,560 Speaker 3: All of the defendants got dismissed out of that case 185 00:12:50,640 --> 00:12:54,920 Speaker 3: except for Deray McKesson. And part of the reason that 186 00:12:55,000 --> 00:12:57,960 Speaker 3: everyone else was dismissed out of that case, or that 187 00:12:58,000 --> 00:13:02,760 Speaker 3: the suit was dismissed with respect to those named defendants, 188 00:13:03,880 --> 00:13:10,320 Speaker 3: is that Black Lives Matter was an unincorporated association, and 189 00:13:10,400 --> 00:13:16,080 Speaker 3: an unincorporated association can't be sued. So and this has 190 00:13:16,120 --> 00:13:19,000 Speaker 3: been relevant in other cases. I'm not trying to give 191 00:13:19,000 --> 00:13:21,800 Speaker 3: anyone legal advice, but I want people to think about 192 00:13:21,880 --> 00:13:24,720 Speaker 3: the fact. I think there's like a real impulse sometimes 193 00:13:24,760 --> 00:13:27,480 Speaker 3: in social movement organizing that like we need to make 194 00:13:27,520 --> 00:13:28,560 Speaker 3: everything a nonprofit. 195 00:13:29,240 --> 00:13:31,319 Speaker 2: Yeah, yeah, they can, or we need to have. 196 00:13:31,240 --> 00:13:34,280 Speaker 3: A bank account even And the fact is when you 197 00:13:34,720 --> 00:13:40,800 Speaker 3: create an organization, even if it's an unincorporated association, that 198 00:13:40,840 --> 00:13:43,679 Speaker 3: where the entity has what you would say is its 199 00:13:43,720 --> 00:13:48,600 Speaker 3: personality is distinct from that of its members, right, right, Yeah, 200 00:13:49,440 --> 00:13:53,760 Speaker 3: it can be sued. You become susceptible to a lawsuit. 201 00:13:54,240 --> 00:13:58,280 Speaker 3: And so for example, when Energy Transfer Partners tried to 202 00:13:58,320 --> 00:14:02,480 Speaker 3: sue there's currently a suit against green Peace, yes, the 203 00:14:02,520 --> 00:14:05,800 Speaker 3: Standing Rock suit, and we'll talk about that later. Right, 204 00:14:05,840 --> 00:14:11,000 Speaker 3: it's a slap suit. It's a suit that endeavors to 205 00:14:11,080 --> 00:14:15,800 Speaker 3: stifle speech that's in the public interest. Right when that 206 00:14:15,960 --> 00:14:20,600 Speaker 3: suit first started, they tried to sue earth First. But 207 00:14:20,760 --> 00:14:24,520 Speaker 3: earth First is not an entity, right yeah, there's no 208 00:14:24,560 --> 00:14:27,800 Speaker 3: one to serve, you know, there's nobody there. It's not 209 00:14:28,640 --> 00:14:30,920 Speaker 3: you know, it's like antify. It'd be like trying to 210 00:14:30,960 --> 00:14:32,400 Speaker 3: sue Batman fans. 211 00:14:33,160 --> 00:14:40,360 Speaker 2: Right yeah, yeah, swifties, let's see it. 212 00:14:41,000 --> 00:14:44,840 Speaker 3: Right, there's there are maybe people who identify in that way, 213 00:14:45,200 --> 00:14:48,400 Speaker 3: but there is not a coherent group and there's certainly 214 00:14:48,400 --> 00:14:51,280 Speaker 3: not a group that can take that can take responsibility 215 00:14:51,320 --> 00:14:53,160 Speaker 3: for the behavior of its members. 216 00:14:53,280 --> 00:14:57,960 Speaker 2: Right taking responsibility, we unfortunately have to take responsibility for 217 00:14:58,000 --> 00:14:59,560 Speaker 2: the fact that we now have to pivot to. 218 00:14:59,560 --> 00:15:03,720 Speaker 3: Add Okay, if you say so, I do. 219 00:15:03,840 --> 00:15:07,000 Speaker 2: I'm so sorry. It's not my favorite part of my job. 220 00:15:17,200 --> 00:15:20,520 Speaker 2: All Right, we're back there. We've fifty to add. So, yeah, 221 00:15:20,560 --> 00:15:23,440 Speaker 2: we're talking about like this, the difference between like an 222 00:15:23,440 --> 00:15:26,880 Speaker 2: incorporated organization, which can be So can you maybe just 223 00:15:27,400 --> 00:15:30,240 Speaker 2: even if we step it back like a little bit 224 00:15:30,320 --> 00:15:35,040 Speaker 2: further and explain the difference between civil and criminal liability, 225 00:15:35,120 --> 00:15:37,360 Speaker 2: just in case people haven't got that. 226 00:15:38,040 --> 00:15:42,400 Speaker 3: Criminal liability is like when you are criminally charged by 227 00:15:42,640 --> 00:15:49,880 Speaker 3: the state, by the government for violating a criminal law. Right, 228 00:15:51,160 --> 00:15:55,400 Speaker 3: and when you are criminally charged, the what is on 229 00:15:55,440 --> 00:15:57,680 Speaker 3: the table is that you might go to jail or 230 00:15:57,720 --> 00:16:01,160 Speaker 3: you might go to prison. Yeah, you can also be 231 00:16:01,280 --> 00:16:07,000 Speaker 3: civilly sued. And what's happening there is if someone says, okay, 232 00:16:07,040 --> 00:16:11,200 Speaker 3: you've you know, you wrecked my car, or your dog 233 00:16:11,280 --> 00:16:13,040 Speaker 3: bit me or you punched me in the face and 234 00:16:13,080 --> 00:16:19,720 Speaker 3: I lost a tooth, then you can be civilly sued 235 00:16:19,760 --> 00:16:23,880 Speaker 3: by that person for money. Damages, got it right to 236 00:16:24,160 --> 00:16:30,080 Speaker 3: compensate you for the loss. So in this case, mister 237 00:16:30,160 --> 00:16:36,480 Speaker 3: McKesson is being civilly sued, not arrested, not prosecuted, not 238 00:16:36,720 --> 00:16:40,120 Speaker 3: subject like, there is no possibility that if he loses 239 00:16:40,120 --> 00:16:41,400 Speaker 3: this case he'll go to jail. 240 00:16:42,200 --> 00:16:48,160 Speaker 2: Yeah, so this civil case happens in Louisiana. Right, Yeah, 241 00:16:48,200 --> 00:16:51,480 Speaker 2: let's talk about how it bounces around the Fifth Circuit. 242 00:16:52,200 --> 00:16:54,320 Speaker 3: So I started to tell you that there were sort 243 00:16:54,360 --> 00:16:57,280 Speaker 3: of these two cases. The first one is entirely dismissed. 244 00:16:57,280 --> 00:17:01,360 Speaker 3: The second one they say, all right, Black Lives Matter 245 00:17:01,640 --> 00:17:05,760 Speaker 3: is not an association that can be sued. These other 246 00:17:05,840 --> 00:17:09,200 Speaker 3: individuals that you've named here as defendants were not present, 247 00:17:09,400 --> 00:17:12,960 Speaker 3: made no statements about it. Well, first they dismissed the 248 00:17:13,000 --> 00:17:18,000 Speaker 3: whole thing. Actually, then the cop appealed to the circuit, 249 00:17:18,080 --> 00:17:21,240 Speaker 3: and the circuit said, yeah, mostly you're right, District Court, 250 00:17:21,880 --> 00:17:24,840 Speaker 3: all of these people can't be sued. But mister McKesson, 251 00:17:24,880 --> 00:17:27,879 Speaker 3: we do think could be liable under a theory of 252 00:17:27,920 --> 00:17:33,000 Speaker 3: negligence because he organized the protest and was present. This 253 00:17:33,160 --> 00:17:38,440 Speaker 3: officer sues McKesson and a bunch of other people, and 254 00:17:38,480 --> 00:17:42,480 Speaker 3: the officer says that mister McKesson is liable because he 255 00:17:42,960 --> 00:17:45,720 Speaker 3: organizes protests and should knew or should have known that 256 00:17:45,760 --> 00:17:49,960 Speaker 3: it could potentially turn violent. And so he says under 257 00:17:50,000 --> 00:17:53,800 Speaker 3: Louisiana law, he can sue on a theory of negligence, 258 00:17:53,840 --> 00:17:58,040 Speaker 3: which doesn't require any kind of intent or certain knowledge. 259 00:17:58,080 --> 00:18:03,720 Speaker 3: It's just being you know, negligent. Initially, the court, the 260 00:18:03,840 --> 00:18:08,880 Speaker 3: Federal District Court, dismisses those claims, all of them based 261 00:18:08,920 --> 00:18:14,320 Speaker 3: on NAACPD Claiborne, which I talked about earlier, right, which says, 262 00:18:14,640 --> 00:18:17,359 Speaker 3: if you're at a protest and one person gets violent, 263 00:18:17,640 --> 00:18:20,760 Speaker 3: like the rest of the protest doesn't get does not 264 00:18:20,840 --> 00:18:25,560 Speaker 3: lose its First Amendment protected character just because other people 265 00:18:26,000 --> 00:18:29,880 Speaker 3: are violent. Then the cop appeals and the Fifth Circuit 266 00:18:30,240 --> 00:18:34,760 Speaker 3: in part affirms their rulings about all of the other 267 00:18:35,000 --> 00:18:39,800 Speaker 3: people who were sued, but reinstates the negligence claim against 268 00:18:39,840 --> 00:18:45,240 Speaker 3: mister McKesson. Right, he then does it. Never, by the way, 269 00:18:45,280 --> 00:18:48,080 Speaker 3: has proceeded to trial. This case is still in a 270 00:18:48,320 --> 00:18:52,879 Speaker 3: very preliminary phase. Oh wow, it has been going on 271 00:18:52,960 --> 00:18:56,080 Speaker 3: since twenty seventeen and it's been bouncing up and down 272 00:18:56,240 --> 00:19:02,600 Speaker 3: the courts. But the question is can he even be 273 00:19:02,960 --> 00:19:07,879 Speaker 3: sued under this theory? So we haven't gotten he hasn't 274 00:19:07,920 --> 00:19:11,679 Speaker 3: been found guilty, we haven't had a presentation of evidence. 275 00:19:12,359 --> 00:19:15,360 Speaker 3: There's all kinds of stuff that has not yet happened. 276 00:19:15,520 --> 00:19:23,000 Speaker 3: In this case. The question is very, very narrow. Can 277 00:19:23,160 --> 00:19:28,880 Speaker 3: a person be sued under a theory of negligence when 278 00:19:28,880 --> 00:19:35,280 Speaker 3: they organize a protest and somebody else at that protest causes. 279 00:19:34,880 --> 00:19:36,400 Speaker 2: Some kind of harm. 280 00:19:37,040 --> 00:19:42,000 Speaker 3: So the Fifth Circuit says, go back district court and 281 00:19:42,119 --> 00:19:45,879 Speaker 3: hear this claim of negligence. McKesson then brings it to 282 00:19:45,960 --> 00:19:50,440 Speaker 3: the Supreme Court, and the Supreme Court reverses the Fifth 283 00:19:50,440 --> 00:19:56,439 Speaker 3: Circuit and says it overturns their decision and says, you 284 00:19:56,560 --> 00:19:59,359 Speaker 3: actually can't force the district court to proceed with this 285 00:19:59,400 --> 00:20:02,960 Speaker 3: trial because as you didn't check in with the Louisiana 286 00:20:03,119 --> 00:20:09,000 Speaker 3: State Court to get their feedback about whether Louisiana state 287 00:20:09,080 --> 00:20:15,040 Speaker 3: law actually allows for this kind of negligence claim. 288 00:20:15,720 --> 00:20:18,399 Speaker 2: Okay, So like they missed procedurally, they fucked up. 289 00:20:18,680 --> 00:20:23,200 Speaker 3: Yes. Then the Fifth Circuit says, okay, find Louisiana Supreme Court, 290 00:20:23,240 --> 00:20:27,080 Speaker 3: what do you think? And the court says, yeah, we 291 00:20:27,119 --> 00:20:30,280 Speaker 3: think you can proceed on this negligence claim. And then 292 00:20:30,320 --> 00:20:33,240 Speaker 3: the Fifth Circuit affirms its previous ruling and says, okay, now, 293 00:20:33,920 --> 00:20:36,320 Speaker 3: District Court, hear it again, and you can hear this 294 00:20:36,400 --> 00:20:41,560 Speaker 3: negligence claim. As to mister McKesson. They tried to distinguish 295 00:20:41,640 --> 00:20:45,080 Speaker 3: it from Claiborne. I don't think they did a good job. 296 00:20:45,760 --> 00:20:48,840 Speaker 3: One of the there was a three judge panel that 297 00:20:48,960 --> 00:20:51,840 Speaker 3: ruled on this, so it was a two to one ruling. 298 00:20:51,880 --> 00:20:54,200 Speaker 3: Two of the judges tried to distinguish it from Claiborne. 299 00:20:54,640 --> 00:21:00,440 Speaker 3: One of the judges says, no, you know, Claiborne, it's 300 00:21:00,480 --> 00:21:05,399 Speaker 3: exactly the same controlling. You can only hold somebody liable 301 00:21:05,520 --> 00:21:09,760 Speaker 3: for their own behavior, right, And one of the things 302 00:21:09,800 --> 00:21:14,680 Speaker 3: he says is that if you make protest organizers liable 303 00:21:14,760 --> 00:21:17,679 Speaker 3: for someone else's violent behavior, all accounter protester has to 304 00:21:17,720 --> 00:21:20,760 Speaker 3: do is show up and start throwing rocks in order 305 00:21:20,800 --> 00:21:29,000 Speaker 3: to get the whole protest to you know, to impute 306 00:21:29,000 --> 00:21:34,760 Speaker 3: liability to the Yeah, the organizerson who organized the protest. Yeah, 307 00:21:35,600 --> 00:21:39,680 Speaker 3: And that goes both ways, right. So I am sort 308 00:21:39,680 --> 00:21:46,240 Speaker 3: of surprised that they given that there are social movements 309 00:21:46,280 --> 00:21:49,879 Speaker 3: that are probably more aligned with the values and beliefs 310 00:21:50,520 --> 00:21:52,919 Speaker 3: of these federal judges in the Fifth Circuit. 311 00:21:54,000 --> 00:21:54,480 Speaker 2: So there. 312 00:21:55,040 --> 00:21:57,399 Speaker 3: The Fifth Circuit at this point says, no, go back 313 00:21:58,280 --> 00:22:00,439 Speaker 3: to the district court and have the trial on the 314 00:22:00,440 --> 00:22:05,359 Speaker 3: theory of negligence. Right then, the Supreme Court decided a 315 00:22:05,400 --> 00:22:12,199 Speaker 3: case called Counterman be. Colorado. Counterman be. Colorado is not 316 00:22:12,440 --> 00:22:17,879 Speaker 3: a First Amendment political speech case. It's a case about 317 00:22:17,880 --> 00:22:25,600 Speaker 3: somebody making threats. But that case relies very heavily on Clayborn. 318 00:22:26,680 --> 00:22:30,520 Speaker 3: So in that case, we have what's called a true 319 00:22:30,600 --> 00:22:34,800 Speaker 3: threats analysis, and they're trying to determine whether a person 320 00:22:34,840 --> 00:22:39,199 Speaker 3: who's making threats needs to actually know that the threats 321 00:22:39,200 --> 00:22:43,240 Speaker 3: they're making are going to be perceived as real threats. 322 00:22:44,000 --> 00:22:47,199 Speaker 3: And what they decided was they do need to know 323 00:22:47,720 --> 00:22:52,120 Speaker 3: to some degree that these statements could be taken as 324 00:22:52,200 --> 00:22:56,080 Speaker 3: true threats. But they talk a lot. Kagan authored this opinion, 325 00:22:56,080 --> 00:22:59,199 Speaker 3: and she talks a lot about how careful we have 326 00:22:59,320 --> 00:23:03,520 Speaker 3: to be even with speech that is traditionally not protected, 327 00:23:03,920 --> 00:23:08,639 Speaker 3: like true threats, because it's very important not to chill 328 00:23:09,280 --> 00:23:12,879 Speaker 3: protected speech. And what she says is that the Court 329 00:23:12,920 --> 00:23:17,359 Speaker 3: has always been really wary of chilling protected speech, and 330 00:23:17,400 --> 00:23:23,399 Speaker 3: so sometimes it makes extra space for speech that isn't 331 00:23:23,440 --> 00:23:26,400 Speaker 3: protected in order to make really sure it doesn't chill 332 00:23:26,440 --> 00:23:31,880 Speaker 3: protected speech right. So, she says, the court must consider 333 00:23:31,960 --> 00:23:36,680 Speaker 3: the prospect of chilling non threatening expression given the ordinary 334 00:23:36,680 --> 00:23:41,920 Speaker 3: citizens predictable tendency to steer wide of the unlawful zone. 335 00:23:42,280 --> 00:23:45,280 Speaker 3: The speaker's fear of mistaking whether a statement is a threat, 336 00:23:45,400 --> 00:23:47,920 Speaker 3: his fear of the legal system getting that judgment wrong, 337 00:23:48,480 --> 00:23:51,920 Speaker 3: his fear in any event of incurring legal costs, all 338 00:23:51,960 --> 00:23:53,959 Speaker 3: those may lead him to swallow words that are in 339 00:23:54,000 --> 00:23:58,800 Speaker 3: fact not true threats. And so what they say is 340 00:23:59,840 --> 00:24:04,560 Speaker 3: we need to make a standard that has enough what 341 00:24:04,640 --> 00:24:08,600 Speaker 3: they say is breathing room to make sure that even 342 00:24:08,640 --> 00:24:12,679 Speaker 3: if it means that some unprotected speech gets through, we 343 00:24:12,800 --> 00:24:16,600 Speaker 3: have enough space for all of the protected speech to 344 00:24:16,680 --> 00:24:20,520 Speaker 3: still exist and for nobody to feel uncertain about whether 345 00:24:20,600 --> 00:24:21,920 Speaker 3: or not their speech is protected. 346 00:24:22,080 --> 00:24:24,639 Speaker 2: Yeah. Sure, they don't want to gradually like have a 347 00:24:24,680 --> 00:24:27,000 Speaker 2: creeping sort of boundary. 348 00:24:27,760 --> 00:24:30,240 Speaker 3: Yeah. So what she says is, if we're going to 349 00:24:30,320 --> 00:24:34,840 Speaker 3: ban any kind of speech, it has to be known 350 00:24:35,320 --> 00:24:40,479 Speaker 3: and knowable to the speaker, and there has to be 351 00:24:40,560 --> 00:24:44,960 Speaker 3: sort of a requirement that the speaker is actually aware 352 00:24:45,600 --> 00:24:50,480 Speaker 3: that this is not protected speech. And so in this case, 353 00:24:50,640 --> 00:24:53,280 Speaker 3: encounterman with the guy who's making the bizarre threats. 354 00:24:54,000 --> 00:24:54,280 Speaker 2: Right. 355 00:24:54,520 --> 00:25:00,960 Speaker 3: What they decide is you only need to be reckless 356 00:25:01,040 --> 00:25:05,479 Speaker 3: about the speech. You don't have to be doing it 357 00:25:05,600 --> 00:25:09,920 Speaker 3: intentionally to threaten someone. But if you're saying things that 358 00:25:10,600 --> 00:25:14,399 Speaker 3: you even if you don't mean it to be a threat, 359 00:25:14,480 --> 00:25:17,159 Speaker 3: if you could reasonably anticipate that it will be received 360 00:25:17,200 --> 00:25:21,600 Speaker 3: as a threat, that's sufficient. Okay, okay, And then she 361 00:25:21,760 --> 00:25:28,080 Speaker 3: says this our incitement decisions, right, So Supreme Court decisions 362 00:25:28,200 --> 00:25:34,639 Speaker 3: regarding incitement to violence demand more. But the reason for 363 00:25:34,760 --> 00:25:38,560 Speaker 3: that demand is not present here where we're talking about threats. 364 00:25:39,480 --> 00:25:43,040 Speaker 3: When incitement is at issue, we have spoken in terms 365 00:25:43,080 --> 00:25:48,320 Speaker 3: of specific intent, presumably equivalent to purpose or knowledge. In 366 00:25:48,400 --> 00:25:52,919 Speaker 3: doing so, we recognized that incitement to disorder is commonly 367 00:25:52,960 --> 00:25:57,560 Speaker 3: a hair spread away from political advocacy, and particularly from 368 00:25:57,600 --> 00:26:03,000 Speaker 3: strong protests against the government and prevailailing order. Such protests 369 00:26:03,080 --> 00:26:06,080 Speaker 3: gave rise to all the cases in which the Court 370 00:26:06,119 --> 00:26:10,000 Speaker 3: demanded a showing of intent, and the Court decided those 371 00:26:10,040 --> 00:26:15,359 Speaker 3: cases against a resonant historical backdrop the Court's failure in 372 00:26:15,440 --> 00:26:20,000 Speaker 3: an earlier era to protect mere advocacy of force or 373 00:26:20,080 --> 00:26:25,600 Speaker 3: law breaking from legal sanction. A strong intent requirement was 374 00:26:25,920 --> 00:26:29,840 Speaker 3: and remains one way to guarantee history was not repeated. 375 00:26:31,040 --> 00:26:33,600 Speaker 3: It was a way to ensure the efforts to prosecute 376 00:26:33,680 --> 00:26:37,879 Speaker 3: incitement would not bleed over, either directly or through a 377 00:26:37,960 --> 00:26:43,200 Speaker 3: chilling effect, to dissenting political speech at the First Amendment's core. Okay, 378 00:26:43,480 --> 00:26:49,919 Speaker 3: So we have this case that's decided days after the 379 00:26:49,960 --> 00:27:00,280 Speaker 3: Fifth Circuit makes its decision that directly speaks to this decision. Yeah, 380 00:27:00,760 --> 00:27:06,879 Speaker 3: reaffirms Clayborn, It reaffirms that political speech is protected. It 381 00:27:06,920 --> 00:27:10,439 Speaker 3: reaffirms that you cannot have a negligence standard. You have 382 00:27:10,480 --> 00:27:14,119 Speaker 3: to have a standard. You can't just say, well, somebody 383 00:27:14,200 --> 00:27:16,560 Speaker 3: knew or should have known that organizing a protest might 384 00:27:16,640 --> 00:27:20,680 Speaker 3: lead to violence, and you say, they have to be like, 385 00:27:21,160 --> 00:27:23,119 Speaker 3: we're going to go out and we're going to do 386 00:27:23,240 --> 00:27:26,959 Speaker 3: violence at this protest at this time. Right, they have 387 00:27:27,040 --> 00:27:29,919 Speaker 3: to be actually advocating for violence in order to be 388 00:27:30,000 --> 00:27:31,720 Speaker 3: held responsible for violence. 389 00:27:32,640 --> 00:27:36,080 Speaker 2: Right, So how does this not just lead to his 390 00:27:36,119 --> 00:27:38,240 Speaker 2: case being dismissed. 391 00:27:38,960 --> 00:27:43,520 Speaker 3: So then at the same time as that's happening, mister 392 00:27:43,600 --> 00:27:47,520 Speaker 3: McKesson has asked the court again to weigh in on 393 00:27:48,040 --> 00:27:51,760 Speaker 3: whether this case can proceed under a negligence theory, right, meaning, 394 00:27:52,560 --> 00:27:55,480 Speaker 3: should he have can he be prosecuted because it's possible 395 00:27:55,480 --> 00:27:58,919 Speaker 3: that a protest will turn violent. And the court says, 396 00:27:59,400 --> 00:28:03,560 Speaker 3: we're not going to hear this case. And somewhat unusually, 397 00:28:05,240 --> 00:28:09,359 Speaker 3: Justice Sonya Soda Mayor issues a statement along with the 398 00:28:09,400 --> 00:28:15,119 Speaker 3: denial of hearing the case, and she says, this court 399 00:28:15,160 --> 00:28:19,679 Speaker 3: may deny what's called sorcherai right hearing the case. The 400 00:28:19,720 --> 00:28:23,800 Speaker 3: Court may deny sorcherai for many reasons, including that the 401 00:28:23,920 --> 00:28:29,720 Speaker 3: law is not in need of further clarification. Right, its 402 00:28:29,720 --> 00:28:33,639 Speaker 3: denial today expresses no view about the merits of mckesson's claim. 403 00:28:34,119 --> 00:28:36,840 Speaker 3: Although the Fifth Circuit did not have the benefit of 404 00:28:36,880 --> 00:28:40,880 Speaker 3: this Court's recent decision Encounterman when it issued its opinion 405 00:28:41,480 --> 00:28:45,360 Speaker 3: the lower courts now do I expect them to give 406 00:28:45,480 --> 00:28:49,480 Speaker 3: full and fair consideration to arguments regarding Counterman's impact in 407 00:28:49,560 --> 00:28:53,960 Speaker 3: any future proceedings. Right. So, I don't think that it's 408 00:28:54,240 --> 00:28:57,280 Speaker 3: some like terrible thing that the court said, oh, no, 409 00:28:57,320 --> 00:28:59,920 Speaker 3: we're not going to hear this case. I don't think 410 00:29:00,000 --> 00:29:02,000 Speaker 3: they're saying in any way, oh we're not going to 411 00:29:02,080 --> 00:29:04,120 Speaker 3: hear this case because we think it ought to proceed 412 00:29:04,960 --> 00:29:09,080 Speaker 3: further and go to trial down in Louisiana. I think 413 00:29:09,120 --> 00:29:11,680 Speaker 3: what they're saying, is we already decided this issue. The 414 00:29:11,800 --> 00:29:16,480 Speaker 3: law remains the same. Claiborne is still the controlling case here. 415 00:29:16,760 --> 00:29:19,440 Speaker 2: Right, Yeah, it seems very clear that what they're saying 416 00:29:19,520 --> 00:29:21,959 Speaker 2: is that we've already made clear what we stand on this. 417 00:29:22,800 --> 00:29:26,960 Speaker 3: That's right. And so the last thing that's on the 418 00:29:27,040 --> 00:29:34,760 Speaker 3: docket in mister mckesson's case is basically a submission that 419 00:29:34,960 --> 00:29:39,360 Speaker 3: reiterates what Justice Sodomyr said. I'll just treat you a 420 00:29:39,400 --> 00:29:42,800 Speaker 3: little from this. It says, so do. Mayor's statement explains 421 00:29:42,800 --> 00:29:46,360 Speaker 3: that the court's decision expresses no view about the merits 422 00:29:46,400 --> 00:29:48,640 Speaker 3: of the claim because the law is not in need 423 00:29:48,680 --> 00:29:55,120 Speaker 3: of further clarification. So it suggests that the existing clear 424 00:29:55,240 --> 00:29:59,000 Speaker 3: law comes from countermen. Right. And the statement makes even 425 00:29:59,040 --> 00:30:03,560 Speaker 3: clearer that the First Amendment does not permit liability on 426 00:30:03,640 --> 00:30:06,600 Speaker 3: the negligence theory advanced by the COP in this case. 427 00:30:07,120 --> 00:30:13,479 Speaker 3: It doesn't say the COP in this case. So it 428 00:30:13,560 --> 00:30:17,840 Speaker 3: makes very clear, you know, they have submitted mister mckesson's 429 00:30:17,840 --> 00:30:23,000 Speaker 3: council has submitted this statement to the judge, and I 430 00:30:23,040 --> 00:30:26,600 Speaker 3: think there is every possibility that this case is just 431 00:30:26,680 --> 00:30:32,000 Speaker 3: going to die at this point. You know, remember the 432 00:30:32,080 --> 00:30:36,200 Speaker 3: District Court already dismissed it altogether at once, and it 433 00:30:36,200 --> 00:30:38,920 Speaker 3: has only been carrying it forward because they were ordered 434 00:30:38,960 --> 00:30:41,160 Speaker 3: to buy the Fifth Circuit. 435 00:30:41,640 --> 00:30:45,680 Speaker 2: Yeah, yes, it we just go back to the district. 436 00:30:46,040 --> 00:30:50,040 Speaker 3: Yeah, exactly. So, in fact, there has been a lot 437 00:30:50,080 --> 00:30:54,200 Speaker 3: of anxiety about, oh, the Supreme Court is signaling that 438 00:30:55,560 --> 00:30:57,880 Speaker 3: the law has changed and that the Fifth Circuit can 439 00:30:58,000 --> 00:31:02,320 Speaker 3: just criminalize protest. In fact, what I think has happened 440 00:31:02,320 --> 00:31:06,000 Speaker 3: here is that the Supreme Court affirmed that the Fifth 441 00:31:06,040 --> 00:31:11,440 Speaker 3: Circuit may not expose people to civil liability for organizing 442 00:31:11,440 --> 00:31:15,480 Speaker 3: a protest. That does not mean that the courts down 443 00:31:15,520 --> 00:31:18,920 Speaker 3: there are not going to try to keep going forward 444 00:31:18,960 --> 00:31:22,840 Speaker 3: with this. But I think if they did, and if 445 00:31:22,880 --> 00:31:27,360 Speaker 3: mister McKesson was like a if they even allowed it 446 00:31:27,400 --> 00:31:31,600 Speaker 3: to continue, it might just go right back up to 447 00:31:31,640 --> 00:31:34,000 Speaker 3: the Supreme Court. And the Supreme Court might at that 448 00:31:34,040 --> 00:31:37,520 Speaker 3: point hear it because they've already said, no, we expect 449 00:31:37,560 --> 00:31:42,920 Speaker 3: you to follow the law that we just rearticulated in 450 00:31:42,960 --> 00:31:48,600 Speaker 3: this other case. Right, But again, remember that we haven't 451 00:31:48,640 --> 00:31:52,800 Speaker 3: had a trial yet. He hasn't been found guilty, he hasn't, right, Like, 452 00:31:52,880 --> 00:31:56,520 Speaker 3: the question is, can we even proceed in this case. 453 00:31:56,720 --> 00:31:58,840 Speaker 2: Let's take a second outbreak here, and then we'll come 454 00:31:58,840 --> 00:32:12,000 Speaker 2: back and discuss This may have been over exaggerating in 455 00:32:12,120 --> 00:32:14,800 Speaker 2: terms of important to state repression and protests, but that 456 00:32:14,920 --> 00:32:19,320 Speaker 2: doesn't mean that state repression and protest is not happening, right, 457 00:32:19,560 --> 00:32:22,240 Speaker 2: it is. So can you explain to us the mechanisms 458 00:32:22,280 --> 00:32:26,280 Speaker 2: through which that happens and the considerations and resources available 459 00:32:26,280 --> 00:32:28,920 Speaker 2: to people who may wish to exercise their First Amendment? 460 00:32:29,000 --> 00:32:29,160 Speaker 1: Right? 461 00:32:29,600 --> 00:32:29,920 Speaker 2: Yes? 462 00:32:30,520 --> 00:32:33,880 Speaker 3: Absolutely so. Has it become more dangerous to protest? I mean, 463 00:32:34,560 --> 00:32:37,640 Speaker 3: I guess, but not because of this case, right, right? 464 00:32:37,720 --> 00:32:39,880 Speaker 2: Yeah, I mean in general it has. Right, They've been 465 00:32:39,920 --> 00:32:43,480 Speaker 2: cops get bigger guns and more guns and tear gas 466 00:32:43,560 --> 00:32:46,640 Speaker 2: things every year, and then they love to use them. Yeah, 467 00:32:47,120 --> 00:32:49,840 Speaker 2: along with the legal consequences. 468 00:32:49,480 --> 00:32:52,440 Speaker 3: Yes, And are there things that we should be worried about, Yes, 469 00:32:54,760 --> 00:33:00,560 Speaker 3: But I don't think that this particular case on its 470 00:33:00,600 --> 00:33:05,120 Speaker 3: own is the harbinger of the end of the First Amendment. 471 00:33:05,600 --> 00:33:11,880 Speaker 3: It's one symptom of the larger underlying effort by the 472 00:33:11,920 --> 00:33:16,280 Speaker 3: state and you know, corporate capital and all of the 473 00:33:16,320 --> 00:33:22,800 Speaker 3: forces of retrogression and repression to quell dissent. But it's 474 00:33:22,960 --> 00:33:26,880 Speaker 3: just one of many, right, And we've seen so many 475 00:33:26,920 --> 00:33:29,840 Speaker 3: examples of this, and they are by no means new 476 00:33:30,040 --> 00:33:35,320 Speaker 3: or novel, right, They're just trying out new legal theories, 477 00:33:35,360 --> 00:33:37,600 Speaker 3: and this was one of them. And I don't think 478 00:33:37,640 --> 00:33:40,480 Speaker 3: it's going to go anywhere, but I think we need 479 00:33:40,520 --> 00:33:44,080 Speaker 3: to remember there's always sort of multiple fronts on which 480 00:33:44,080 --> 00:33:49,160 Speaker 3: we're fighting this battle. Right. There's the legal front, right, 481 00:33:49,800 --> 00:33:53,480 Speaker 3: and then there's the sort of on the ground law 482 00:33:53,680 --> 00:33:58,600 Speaker 3: enforcement front. One of the reasons that mister McKesson was 483 00:33:58,680 --> 00:34:02,280 Speaker 3: targeted here is because he did make and this is 484 00:34:02,320 --> 00:34:04,720 Speaker 3: not to say this is his fault, it absolutely is not, 485 00:34:05,800 --> 00:34:09,400 Speaker 3: but one of the things that made him more susceptible 486 00:34:09,520 --> 00:34:11,719 Speaker 3: to targeting is that he did make a ton of 487 00:34:11,719 --> 00:34:15,920 Speaker 3: public statements and he was extremely visible in a way 488 00:34:16,080 --> 00:34:23,320 Speaker 3: that aligned with the governments and the right wings understanding 489 00:34:24,080 --> 00:34:29,040 Speaker 3: of social structures. Right, because if they understand that social 490 00:34:29,080 --> 00:34:32,640 Speaker 3: movements are being directed from the top, which is not 491 00:34:32,800 --> 00:34:36,920 Speaker 3: typically the case, but if that's if that's what it 492 00:34:37,000 --> 00:34:39,960 Speaker 3: looks like to them, and there is a person that 493 00:34:40,000 --> 00:34:46,279 Speaker 3: they can identify who they can even a little bit 494 00:34:46,920 --> 00:34:55,160 Speaker 3: make out, even the most tenuous case, is in charge, 495 00:34:55,239 --> 00:34:57,200 Speaker 3: then you know that's the person they're going. 496 00:34:57,200 --> 00:34:57,680 Speaker 2: To go after. 497 00:34:58,160 --> 00:35:02,560 Speaker 3: Yeah, Yeah, so to the extent that we're doing organizing 498 00:35:03,080 --> 00:35:08,200 Speaker 3: that where it is distributed, it is autonomous. You know, 499 00:35:08,480 --> 00:35:14,080 Speaker 3: it is spontaneous. And we aren't working with in structures 500 00:35:14,120 --> 00:35:17,319 Speaker 3: that are hierarchical, and we're not working in structures that 501 00:35:17,440 --> 00:35:20,640 Speaker 3: are incorporated and have bank accounts in public meetings and 502 00:35:20,760 --> 00:35:27,880 Speaker 3: membership structures. You know, we're already very insulated from this 503 00:35:28,000 --> 00:35:32,040 Speaker 3: kind of thing. Anyway, The dangers are what the dangers 504 00:35:32,080 --> 00:35:38,200 Speaker 3: have always been, which are mass arrests because the police 505 00:35:38,280 --> 00:35:40,600 Speaker 3: neither know nor care what the law is, and they 506 00:35:40,600 --> 00:35:44,080 Speaker 3: don't care about Clayborn, and they don't care that the 507 00:35:44,120 --> 00:35:46,800 Speaker 3: fact that you did not personally throw a rock doesn't 508 00:35:47,080 --> 00:35:52,359 Speaker 3: constitute probable cause to arrest you. Right like, I am 509 00:35:52,440 --> 00:35:55,239 Speaker 3: always more concerned about things on the ground, like mass 510 00:35:55,320 --> 00:36:00,920 Speaker 3: arrests and police involved injuries than I am about, frankly, 511 00:36:00,960 --> 00:36:05,040 Speaker 3: about even long term legal consequences because so often, and 512 00:36:05,120 --> 00:36:07,280 Speaker 3: I guess I say this because I have the privilege 513 00:36:07,280 --> 00:36:12,000 Speaker 3: of practicing in New York where there is a very 514 00:36:12,040 --> 00:36:17,480 Speaker 3: strong history of public protest and everyone sort of understands 515 00:36:17,480 --> 00:36:20,200 Speaker 3: what that is and no one feels all that threatened 516 00:36:20,239 --> 00:36:23,359 Speaker 3: by it. Which doesn't mean that there aren't a lot 517 00:36:23,400 --> 00:36:26,239 Speaker 3: of police involved injuries. And it doesn't mean that there 518 00:36:26,239 --> 00:36:29,000 Speaker 3: aren't a lot of traumatic arrests, but it does mean 519 00:36:29,040 --> 00:36:35,680 Speaker 3: that typically there are not devastating legal consequences of that. Now, 520 00:36:35,719 --> 00:36:40,120 Speaker 3: that's not the case in places like Georgia, right, where 521 00:36:40,160 --> 00:36:44,959 Speaker 3: they're doing their own sort of boundary testing down there 522 00:36:45,000 --> 00:36:48,480 Speaker 3: to see what kinds of criminal liability and what kinds 523 00:36:48,520 --> 00:36:53,080 Speaker 3: of theories of criminal law they can use to sort 524 00:36:53,120 --> 00:37:00,719 Speaker 3: of bootstrap absolutely garden variety protest behavior into really serious 525 00:37:00,840 --> 00:37:02,600 Speaker 3: felony charges. 526 00:37:03,480 --> 00:37:03,719 Speaker 1: Right. 527 00:37:04,200 --> 00:37:06,479 Speaker 3: So that's the kind of stuff that I would say, yeah, 528 00:37:06,480 --> 00:37:09,280 Speaker 3: we should be worried about it. It is dangerous to protest. 529 00:37:09,600 --> 00:37:16,399 Speaker 3: There's widespread surveillance, there's widespread public private collaboration. There's widespread 530 00:37:16,560 --> 00:37:22,399 Speaker 3: agency cooperation. There's all kinds of non state actors, right, 531 00:37:22,600 --> 00:37:30,720 Speaker 3: corporate actors, political actors, random sort of individuals and small 532 00:37:30,719 --> 00:37:34,560 Speaker 3: groups that are doing are engaged in all kinds of surveillance. 533 00:37:35,040 --> 00:37:38,280 Speaker 3: There's counter groups, right, we have like you mentioned before, 534 00:37:38,320 --> 00:37:42,080 Speaker 3: the Proud Boys, we have all kinds of well, look, 535 00:37:42,120 --> 00:37:45,279 Speaker 3: Canary Mission is a really good example, right. We have 536 00:37:45,440 --> 00:37:51,560 Speaker 3: all kinds of actors, groups, individuals, corporations, government entities that 537 00:37:51,800 --> 00:37:55,520 Speaker 3: have an interest in suppressing descent, and they engage in 538 00:37:55,600 --> 00:38:01,200 Speaker 3: all kinds of conduct, you know, ranging from intense surveillance 539 00:38:01,320 --> 00:38:08,319 Speaker 3: to doxing to you know, even more violent behavior, you know, 540 00:38:08,520 --> 00:38:15,000 Speaker 3: targeted harassment, not just by law enforcement, but by individuals, 541 00:38:15,040 --> 00:38:19,960 Speaker 3: by neighbors, by media outlets. Right. And those are the 542 00:38:20,040 --> 00:38:24,400 Speaker 3: kinds of things that make it dangerous to protest, I guess, 543 00:38:24,680 --> 00:38:28,719 Speaker 3: But since when do we let that stop us? Right? 544 00:38:28,760 --> 00:38:33,200 Speaker 3: You know? I mean the solution to these kinds of 545 00:38:33,280 --> 00:38:36,360 Speaker 3: dangerous is to be thoughtful, to remember that discretion is 546 00:38:36,400 --> 00:38:40,080 Speaker 3: the better part of valor, right, Meaning, you don't need 547 00:38:40,120 --> 00:38:42,719 Speaker 3: to be bragging about whatever you're doing on Twitter. You 548 00:38:42,760 --> 00:38:45,120 Speaker 3: don't need to always be the public face of the movement, 549 00:38:45,200 --> 00:38:48,360 Speaker 3: because even if you're not speaking directly to cops in 550 00:38:48,400 --> 00:38:51,920 Speaker 3: an interrogation, anything you say publicly can and very much 551 00:38:51,920 --> 00:38:54,640 Speaker 3: will be used against you. Yeah, we're seeing a lot 552 00:38:54,680 --> 00:38:58,680 Speaker 3: of employment and educational consequences right people are what's happening 553 00:38:58,760 --> 00:39:01,440 Speaker 3: right now as we speak at Columbia University. People are 554 00:39:01,440 --> 00:39:04,399 Speaker 3: losing their student housing, they're getting suspended from school, they're 555 00:39:04,400 --> 00:39:08,719 Speaker 3: getting arrested, they're getting you know, these student disciplinary proceedings. 556 00:39:09,040 --> 00:39:14,200 Speaker 3: There's all kinds of risks to being a public dissident. 557 00:39:14,880 --> 00:39:18,319 Speaker 3: But the solution to that kind of repression is not 558 00:39:18,360 --> 00:39:20,879 Speaker 3: self censorship, it's courage. 559 00:39:21,320 --> 00:39:23,760 Speaker 2: There are other ways that we secure change, but showing 560 00:39:23,840 --> 00:39:25,680 Speaker 2: up in the streets is always how you make history. 561 00:39:26,040 --> 00:39:28,680 Speaker 2: And you have to be smart, but you also have 562 00:39:28,719 --> 00:39:34,120 Speaker 2: to be brave. As we reach another election year, almost 563 00:39:34,640 --> 00:39:39,279 Speaker 2: certainly like there will be protest, which whatever happens in 564 00:39:39,320 --> 00:39:42,080 Speaker 2: the election, right, that will lead to people who are 565 00:39:42,120 --> 00:39:47,920 Speaker 2: perhaps not so familiar with horizontal organizing, with like anti 566 00:39:48,120 --> 00:39:51,400 Speaker 2: authoritarian or non authoritarian organizing, all these things, entering a 567 00:39:51,440 --> 00:39:57,200 Speaker 2: protest movement, and people will inevitably have to learn like 568 00:39:57,320 --> 00:40:00,760 Speaker 2: one way or the other, you know, like these basic 569 00:40:00,800 --> 00:40:02,879 Speaker 2: things which they can do to make it as safe 570 00:40:02,880 --> 00:40:04,880 Speaker 2: as possible to protest, And it would be great if 571 00:40:04,880 --> 00:40:06,759 Speaker 2: they can learn them from a podcast note from them 572 00:40:06,880 --> 00:40:08,399 Speaker 2: or their friends getting hurt. 573 00:40:08,520 --> 00:40:13,440 Speaker 3: Here's what I would say too, if it is at 574 00:40:13,440 --> 00:40:17,800 Speaker 3: all possible, find a lawyer who is willing to consult 575 00:40:17,880 --> 00:40:22,160 Speaker 3: with you before you go out and do your action, 576 00:40:23,160 --> 00:40:26,000 Speaker 3: just so that you can be prepared right for purposes 577 00:40:26,040 --> 00:40:30,680 Speaker 3: of informed consent, because I cannot tell you. You know, 578 00:40:30,760 --> 00:40:33,359 Speaker 3: lawyers are not allowed to advise their clients to break 579 00:40:33,400 --> 00:40:36,359 Speaker 3: the law. But it's very much our job to tell 580 00:40:36,360 --> 00:40:39,600 Speaker 3: you what the possible or likely consequences are of certain 581 00:40:39,640 --> 00:40:42,840 Speaker 3: courses of action, and you are probably better off knowing 582 00:40:42,880 --> 00:40:45,839 Speaker 3: what that is before you do the thing. Yes, then 583 00:40:45,920 --> 00:40:47,000 Speaker 3: after you do that thing. 584 00:40:47,160 --> 00:40:48,280 Speaker 2: Yeah, that's a good idea. 585 00:40:48,960 --> 00:40:51,800 Speaker 3: I will tell you that. Personally, I would rather spend 586 00:40:52,280 --> 00:40:59,640 Speaker 3: many hours talking people through, you know, the various outcomes 587 00:40:59,719 --> 00:41:05,520 Speaker 3: of different ideas, than spending ten minutes talking to them 588 00:41:05,560 --> 00:41:09,680 Speaker 3: after they're already in a cell. Right, you know there 589 00:41:09,719 --> 00:41:13,560 Speaker 3: are ways of protesting that are entirely lawful that can 590 00:41:13,640 --> 00:41:17,520 Speaker 3: still help you to accomplish your political goals. And if 591 00:41:17,560 --> 00:41:20,040 Speaker 3: you are going to go out and do something that 592 00:41:20,120 --> 00:41:22,719 Speaker 3: you think is likely to involve a rest, I at 593 00:41:22,760 --> 00:41:26,400 Speaker 3: least want you to know that it is likely to 594 00:41:26,719 --> 00:41:32,120 Speaker 3: involve our rest exactly you know, and what your specific 595 00:41:32,200 --> 00:41:35,759 Speaker 3: risks might be, and to have somebody lined up to 596 00:41:35,840 --> 00:41:40,799 Speaker 3: take care of you, to represent you if that becomes necessary. Right. 597 00:41:42,160 --> 00:41:45,240 Speaker 3: I really don't mean to say, oh, don't worry about 598 00:41:45,400 --> 00:41:48,560 Speaker 3: McKesson vedo, it's no big deal. It is a big deal. 599 00:41:48,680 --> 00:41:53,279 Speaker 3: It's a big deal because this whole judicial system and 600 00:41:53,400 --> 00:41:59,400 Speaker 3: legal apparatus is working over time to find every possible 601 00:41:59,480 --> 00:42:05,399 Speaker 3: way to discourage protest. But it is not unique in 602 00:42:05,400 --> 00:42:08,160 Speaker 3: that regard. And I guess that's really what I'm trying 603 00:42:08,200 --> 00:42:11,000 Speaker 3: to say. There are all kinds of ways in which 604 00:42:11,400 --> 00:42:16,200 Speaker 3: we are at risk by being dissidents. I just don't 605 00:42:16,239 --> 00:42:20,200 Speaker 3: think that this one is particularly special or particularly alarming. 606 00:42:21,080 --> 00:42:24,160 Speaker 3: And again, what I just referred to as the law 607 00:42:24,160 --> 00:42:29,000 Speaker 3: of the land is not the same thing as law 608 00:42:29,080 --> 00:42:31,759 Speaker 3: enforcement practice, right y. 609 00:42:32,560 --> 00:42:33,200 Speaker 2: I would. 610 00:42:34,840 --> 00:42:37,400 Speaker 3: Really want to make sure that everyone remembers a the 611 00:42:37,520 --> 00:42:41,080 Speaker 3: law is not the same thing as justice, and neither 612 00:42:41,239 --> 00:42:45,400 Speaker 3: is the law the same thing or even necessarily related 613 00:42:45,480 --> 00:42:50,480 Speaker 3: to what police are doing on the ground during a protest. 614 00:42:51,080 --> 00:42:56,319 Speaker 2: Right Yeah, there's very different things. Where can people I guess, 615 00:42:56,360 --> 00:43:01,319 Speaker 2: people who are organizing, people who are organize autonomous, spontaneous, 616 00:43:01,360 --> 00:43:04,960 Speaker 2: horizontal movements, are they good resources for them to find? 617 00:43:05,000 --> 00:43:07,600 Speaker 2: Because they might be they might be in my state? 618 00:43:07,719 --> 00:43:10,880 Speaker 2: What's you know, what do I have to avoid that 619 00:43:10,960 --> 00:43:11,480 Speaker 2: kind of thing? 620 00:43:11,560 --> 00:43:11,880 Speaker 1: Yes? 621 00:43:12,440 --> 00:43:13,560 Speaker 2: Where would they find those? 622 00:43:14,480 --> 00:43:18,120 Speaker 3: One resource if you are contacted by federal law enforcement 623 00:43:18,840 --> 00:43:21,879 Speaker 3: is you can call the National Lawyers Guild Federal Anti 624 00:43:21,960 --> 00:43:25,759 Speaker 3: Repression Hotline at two one two six seven nine two 625 00:43:25,760 --> 00:43:30,840 Speaker 3: eight one one. A really good resource is the Electronic 626 00:43:30,960 --> 00:43:36,200 Speaker 3: Frontier Foundation's Surveillance Self Defense, which is at S as 627 00:43:36,239 --> 00:43:39,680 Speaker 3: in Surveillance, s as in Self d as in Defense 628 00:43:40,239 --> 00:43:45,080 Speaker 3: dot E, as in Electronic f as in Frontier f 629 00:43:45,160 --> 00:43:51,799 Speaker 3: as in Foundation dot org. The National Lawyers Guild has 630 00:43:52,200 --> 00:43:57,720 Speaker 3: various know your Rights guides that are available at NLG 631 00:43:58,239 --> 00:44:03,560 Speaker 3: dot org. We also have chapters all over the country 632 00:44:03,719 --> 00:44:07,879 Speaker 3: and if you look in our referral directory you can 633 00:44:07,920 --> 00:44:12,200 Speaker 3: find where those contacts for people all over the country. 634 00:44:12,960 --> 00:44:16,880 Speaker 3: I think if you want a know your Rights training, 635 00:44:17,200 --> 00:44:20,480 Speaker 3: you can reach out to the NALG and there are 636 00:44:20,560 --> 00:44:24,319 Speaker 3: a lot of other a lot of other organizations that 637 00:44:24,440 --> 00:44:27,720 Speaker 3: do know your Rights trainings. I know in New York 638 00:44:27,760 --> 00:44:32,759 Speaker 3: we have a really amazing organization called Cuney Clear, and 639 00:44:32,960 --> 00:44:37,120 Speaker 3: I would highly recommend you follow them on Instagram because 640 00:44:37,160 --> 00:44:39,560 Speaker 3: they often have a lot of resources that they're posting. 641 00:44:40,760 --> 00:44:44,880 Speaker 3: Protect your People a digital toolkit for organizations and employers, 642 00:44:45,280 --> 00:44:50,120 Speaker 3: and it was developed to combat anti LGBTQ plus harassment, 643 00:44:51,040 --> 00:44:55,920 Speaker 3: but I think the principles remain the same no matter 644 00:44:56,000 --> 00:44:58,640 Speaker 3: what it is that you're looking at. And I'll put 645 00:44:58,640 --> 00:45:02,040 Speaker 3: the link to that again. It's called Protect Your People 646 00:45:02,080 --> 00:45:06,960 Speaker 3: and it's hosted by the Harvard Law LGBTQ clinic. But 647 00:45:07,360 --> 00:45:10,840 Speaker 3: I'll stick the link here in the chat for you, James, 648 00:45:10,840 --> 00:45:13,160 Speaker 3: so that you can share it in the show notes well. 649 00:45:13,200 --> 00:45:17,239 Speaker 2: To finish up, you've mentioned the national Lawyers Guilds and 650 00:45:17,280 --> 00:45:20,080 Speaker 2: some other resources. Is there anywhere else where people can 651 00:45:20,080 --> 00:45:22,040 Speaker 2: find you or where you think that they should be 652 00:45:22,080 --> 00:45:24,480 Speaker 2: following along? Like you know, like we said, we're going 653 00:45:24,480 --> 00:45:28,520 Speaker 2: into an election year, stuff's probably becoming more relevant again. 654 00:45:28,680 --> 00:45:31,359 Speaker 2: And there's a genocide happening right now that people are 655 00:45:31,400 --> 00:45:34,440 Speaker 2: facing severe personal consequences for protesting. 656 00:45:35,840 --> 00:45:37,719 Speaker 3: Yeah, I mean I don't. I don't want anyone to 657 00:45:37,760 --> 00:45:42,720 Speaker 3: follow me on social media. Excellent, if that's what you're asking. 658 00:45:43,719 --> 00:45:47,520 Speaker 3: I will always every single time plug landback dot org. 659 00:45:49,520 --> 00:45:53,520 Speaker 3: And if people yes, I can see that you have 660 00:45:53,640 --> 00:45:55,400 Speaker 3: a land Back flag behind you. 661 00:45:55,760 --> 00:45:59,960 Speaker 2: Thank you. Listen. Yeah, there's a black one next. 662 00:46:00,239 --> 00:46:03,919 Speaker 3: Okay, also a solid choice for flags if we gotta 663 00:46:03,960 --> 00:46:08,920 Speaker 3: do flags. Oh also, please, for the love of god, 664 00:46:09,040 --> 00:46:10,040 Speaker 3: don't talk to cops. 665 00:46:14,760 --> 00:46:17,320 Speaker 1: It could happen here as a production of cool Zone Media. 666 00:46:17,360 --> 00:46:20,040 Speaker 1: For more podcasts from cool Zone Media, visit our website 667 00:46:20,080 --> 00:46:22,279 Speaker 1: cool Zonemedia dot com, or check us out on the 668 00:46:22,320 --> 00:46:25,719 Speaker 1: iHeartRadio app, Apple Podcasts, or wherever you listen to podcasts. 669 00:46:26,320 --> 00:46:28,440 Speaker 1: You can find sources for it could happen here, Updated 670 00:46:28,520 --> 00:46:32,560 Speaker 1: monthly at cool zonemedia dot com slash sources. Thanks for listening. 671 00:46:32,880 --> 00:46:34,640 Speaker 3: Hey can I shout someone out? 672 00:46:35,000 --> 00:46:37,040 Speaker 2: Yeah? Please like that? 673 00:46:37,480 --> 00:46:40,720 Speaker 3: Just randomly, I would like to shout out my beloved 674 00:46:40,800 --> 00:46:44,000 Speaker 3: friend Marion, who I know listens to this program him 675 00:46:44,040 --> 00:46:44,360 Speaker 3: Marian