Speaker 1: Also media.
Speaker 2: Hi, everyone, welcome to the podcast. It's me James and
Speaker 2: I'm joined today by Moe, who is an attorney, educator
Speaker 2: and abolitionists've been on the show before. We've very much
Speaker 2: enjoyed the contributions. We're here today to talk about the
Speaker 2: recent Supreme Court not not decision right, but the Supreme
Speaker 2: Court declining to hear a case. It's been reported a
Speaker 2: little bit. Perhaps I think the importance of it may
Speaker 2: have been overstated, and it's going to help us understand that.
Speaker 2: How are you How are you doing today?
Speaker 3: Mo, I'm doing all right. How are you doing?
Speaker 2: I'm doing well. It's a nice day. Went for a
Speaker 2: run this morning, saw some flowers, picked some fennel. That
Speaker 2: was nice.
Speaker 3: Yeah, that's very nice.
Speaker 2: Yeah, wild fannel. If you live in southern California now
Speaker 2: so time. Just a little tip from me, don't get
Speaker 2: it at the height that dog's pe. You want to
Speaker 2: go above that.
Speaker 3: It's a pro tip.
Speaker 2: You can't say that. We don't fill this podcast with
Speaker 2: a little Easter eggs. Talking of little Easter eggs, let's
Speaker 2: get into the things that are buried within this. What
Speaker 2: happened was the Supreme Court declined to hear a case.
Speaker 2: Is that right?
Speaker 3: That's right. So the case that the Supreme Court declined
Speaker 3: to hear is McKesson b. Dough. This is a case
Speaker 3: that they have declined to hear eight times, and it
Speaker 3: keeps going back up and down from I think the
Speaker 3: Middle District of Louisiana to the Fifth Circuit all the
Speaker 3: way up to the Supreme Court. And it's a case
Speaker 3: that involves the First Amendment, and the way that it
Speaker 3: has been reported, I think, or at least the way
Speaker 3: that it has been received, particularly by communities of people
Speaker 3: who do engage in a lot of First Amendments protected activity,
Speaker 3: has been with a certain amount of panic. That the
Speaker 3: Supreme Court saying we're not going to hear this case.
Speaker 3: We're going to kick it back down to the Fifth Circuit,
Speaker 3: We're going to kick it back down to the district court,
Speaker 3: is you know, a harbinger of terrible things to come
Speaker 3: for the right to protest and for the kinds of
Speaker 3: liability that you might be exposed to if you are
Speaker 3: engaging in protest. And there is some truth to that.
Speaker 3: It is I would say, often dangerous to engage in
Speaker 3: acts of dissent. But I think that there's some real
Speaker 3: misapprehension of what's going on with this particular case, and
Speaker 3: so I thought it was worth having a conversation with
Speaker 3: you to try to clarify a little bit about what's
Speaker 3: going on here, what the risk saw are associated specifically
Speaker 3: with this case, and what the risks actually are on
Speaker 3: the ground with respect to protest, and also to talk
Speaker 3: to you about some of the resources that are available
Speaker 3: to protect yourself.
Speaker 2: Wonderful.
Speaker 3: Yeah, So I guess to give you a little roadmap.
Speaker 3: I think I'll start by talking to you about what
Speaker 3: is actually the law on the ground at this point
Speaker 3: with respect to the First Amendment and rights to protest? Yes,
Speaker 3: have those rights actually been meaningfully altered by this case
Speaker 3: or by the Supreme Court declining to hear this case?
Speaker 3: Has it actually become more dangerous to protest? Are there
Speaker 3: things that we should be worried about? What are they?
Speaker 3: And then what kinds of resources there are? I guess
Speaker 3: the first thing I'm going to do is give you
Speaker 3: a very brief premmer on the First Amendment. So, the
Speaker 3: First Amendment guarantees, as I like to say, the very
Speaker 3: First Amendment guarantees our rights to speech. In a sum
Speaker 3: the government can place limits on the time, place, and
Speaker 3: manner of your protest. But the government is not authorized
Speaker 3: to criminalize speech based on subject matter or viewpoint, and
Speaker 3: it can't impose what's called a prior restraint on speech,
Speaker 3: which can include making it so risky to speak that
Speaker 3: people engage in self censorship. But the First Amendment doesn't
Speaker 3: immunize you from prosecution or civil liability for otherwise unlawful conduct, right.
Speaker 3: So that's why true threats of violence are not protected
Speaker 3: by the First Amendment right, And it doesn't protect you
Speaker 3: from being arrested for behavior just because that behavior is
Speaker 3: politically motivated, which is why breaking Starbucks windows and graffiti
Speaker 3: and a fascination are not protected by the First Amendment.
Speaker 2: Right.
Speaker 3: On the other hand, the fact that there are one
Speaker 3: or more people at a demonstration who are acting unlawfully
Speaker 3: does not strip the larger demonstration of First Amendment protection.
Speaker 2: Right.
Speaker 3: And that principle comes from a case called NAACP versus
Speaker 3: Claiborne Hardware and Claiborne. It was decided in nineteen eighty two,
Speaker 3: and it was a case where the NAACP was sued
Speaker 3: civilly on the basis that they had organized a protest
Speaker 3: where some people in the crowd had caused some damage.
Speaker 3: I see this is a very very similar case to
Speaker 3: the underlying case in In this situation, where Deray McKesson
Speaker 3: has been sued civilly, meaning he's being sued for money damages,
Speaker 3: he is not being criminally prosecuted, right, That's an important distinction. So,
Speaker 3: you know what, let's back up a little bit.
Speaker 2: So, yeah, can you explain who is Deray McKesson. Why
Speaker 2: is Deray McKesson bouncing up and down between Louisiana and
Speaker 2: the Supreme Court?
Speaker 3: Yes? Okay, So I'm going to back up even farther
Speaker 3: than that. The reason that we are here today, that
Speaker 3: I am here with you talking about this case is
Speaker 3: that the way that this case is being reported on
Speaker 3: or received is that people are going, oh god, it's
Speaker 3: now illegal to protest, and we're all going to go
Speaker 3: to prison for protesting. Like, okay, I mean, first of all, please,
Speaker 3: using mass arrest of protesters to chill in silence speech
Speaker 3: is already a time honored American tradition. Yes, but that
Speaker 3: isn't what this case is about. This is a civil case,
Speaker 3: which means that somebody is being sued for money damages
Speaker 3: and the person who's being sued is de Ray McKesson.
Speaker 3: Deray McKesson was, at one point, for anyone who can
Speaker 3: remember a decade ago, was very high profile, very visible
Speaker 3: in the Black Lives Matter movement in Ferguson and in
Speaker 3: Baltimore and then later in Louisiana, And he was somebody
Speaker 3: who was very visible in the media. He made a
Speaker 3: lot of public statements. He made a lot of public
Speaker 3: statements on behalf of Black Lives Matter, which you know
Speaker 3: I'm going to get into is not a membership organization,
Speaker 3: but he made a bunch of statements as though he
Speaker 3: were the representative of a movement which he referred to
Speaker 3: as Black Lives Matter. He organized a lot of protests.
Speaker 3: I think at one point I have a memory that
Speaker 3: he ran for office. So he was a very visible
Speaker 3: movement organizer, right. He organized a protest in I believe
Speaker 3: twenty seventeen in the wake of the police murder of
Speaker 3: Altms Sterling, at which a police officer was hit in
Speaker 3: the head with a hard object, a rock or a
Speaker 3: piece of concrete, and he was like the police officer
Speaker 3: was injured, like pretty seriously, yeah, And he then sued
Speaker 3: Deray McKesson for money damages on the theory that because
Speaker 3: he had organized the protest, he had control of the protest,
Speaker 3: and he had some responsibility for the fact that this
Speaker 3: other person had thrown a rock at him. This theory
Speaker 3: requires a real failure to understand social movements and distributed
Speaker 3: networks because what it presumes, and I think we've talked
Speaker 3: about this before on this show, is the inability of
Speaker 3: the police and the courts to understand that not every
Speaker 3: social movement operates with a clear hierarchy like the police
Speaker 3: or the military. Because their social movement groups do imitate
Speaker 3: the military, they do imitate that hierarchy. They totally reproduce
Speaker 3: this sort of chain of command theory. So if you
Speaker 3: look at the clan, right, they are organized by they
Speaker 3: are incorporated, they have a membership, there is a clear hierarchy,
Speaker 3: who is in charge, who is giving orders, who is
Speaker 3: following orders?
Speaker 2: Right, That is not the case Proud Boys Patriot Front,
Speaker 2: like Very's of organizing without authority and the conceiving of
Speaker 2: anyone doing so, it would seem right.
Speaker 3: And so I think I've told you before. I've actually
Speaker 3: had to drop footnotes in federal court filings to explain
Speaker 3: that Antifa is not a membership organization.
Speaker 2: Yeah, this is a discussion that I have been privy
Speaker 2: to as a historian of the same organization. Yeah, originally
Speaker 2: it was ironically right that the KPg was. Yeah, when
Speaker 2: we're referring it to that, we're not talking about nineteen
Speaker 2: thirty three Germany. No.
Speaker 3: So you know when someone says and this becomes relevant
Speaker 3: here because the initially when this suit was filed, it
Speaker 3: was two different lawsuits, and it was a group of
Speaker 3: police officers who had been shot in different places in
Speaker 3: the country, suing not only Dura McKesson, but Black Lives Matter.
Speaker 3: And I think in fact, one of the defendants who
Speaker 3: was named in one of the initial suits was hashtag
Speaker 3: black Lives Matter. So I don't know how you serve
Speaker 3: a hashtag.
Speaker 2: Yeah, fascinating, totally fascinating.
Speaker 3: I mean, the legal theory underlying these cases was pretty bonkers.
Speaker 3: And then various other individuals who were part of different
Speaker 3: Black Lives Matter groups. Right, the initial suit that went
Speaker 3: after all these people and hashtags for the shootings were
Speaker 3: really just legally insufficient. Right, The allegations that were made
Speaker 3: were black Lives Matter whatever that is made statements about
Speaker 3: policing is unjust and police shouldn't be surprised if there's
Speaker 3: you know, if they encounter resistance, and then these other
Speaker 3: people kind of showed up and shot at cops. And
Speaker 3: the theory is that by sort of making these statements,
Speaker 3: Black Lives Matter encouraged or incited and was responsible for
Speaker 3: these shootings. Yes, this is not a This is not
Speaker 3: a valid legal theory, right, I mean, it just is not.
Speaker 3: And that case was dismissed, you know, just entirely. And
Speaker 3: then the second case it was brought was this one
Speaker 3: where the guy who was hit in the head with
Speaker 3: a rock, and it's the same allegations, the same theory
Speaker 3: of liability, and everybody got dismissed out of that case.
Speaker 3: All of the defendants got dismissed out of that case
Speaker 3: except for Deray McKesson. And part of the reason that
Speaker 3: everyone else was dismissed out of that case, or that
Speaker 3: the suit was dismissed with respect to those named defendants,
Speaker 3: is that Black Lives Matter was an unincorporated association, and
Speaker 3: an unincorporated association can't be sued. So and this has
Speaker 3: been relevant in other cases. I'm not trying to give
Speaker 3: anyone legal advice, but I want people to think about
Speaker 3: the fact. I think there's like a real impulse sometimes
Speaker 3: in social movement organizing that like we need to make
Speaker 3: everything a nonprofit.
Speaker 2: Yeah, yeah, they can, or we need to have.
Speaker 3: A bank account even And the fact is when you
Speaker 3: create an organization, even if it's an unincorporated association, that
Speaker 3: where the entity has what you would say is its
Speaker 3: personality is distinct from that of its members, right, right, Yeah,
Speaker 3: it can be sued. You become susceptible to a lawsuit.
Speaker 3: And so for example, when Energy Transfer Partners tried to
Speaker 3: sue there's currently a suit against green Peace, yes, the
Speaker 3: Standing Rock suit, and we'll talk about that later. Right,
Speaker 3: it's a slap suit. It's a suit that endeavors to
Speaker 3: stifle speech that's in the public interest. Right when that
Speaker 3: suit first started, they tried to sue earth First. But
Speaker 3: earth First is not an entity, right yeah, there's no
Speaker 3: one to serve, you know, there's nobody there. It's not
Speaker 3: you know, it's like antify. It'd be like trying to
Speaker 3: sue Batman fans.
Speaker 2: Right yeah, yeah, swifties, let's see it.
Speaker 3: Right, there's there are maybe people who identify in that way,
Speaker 3: but there is not a coherent group and there's certainly
Speaker 3: not a group that can take that can take responsibility
Speaker 3: for the behavior of its members.
Speaker 2: Right taking responsibility, we unfortunately have to take responsibility for
Speaker 2: the fact that we now have to pivot to.
Speaker 3: Add Okay, if you say so, I do.
Speaker 2: I'm so sorry. It's not my favorite part of my job.
Speaker 2: All Right, we're back there. We've fifty to add. So, yeah,
Speaker 2: we're talking about like this, the difference between like an
Speaker 2: incorporated organization, which can be So can you maybe just
Speaker 2: even if we step it back like a little bit
Speaker 2: further and explain the difference between civil and criminal liability,
Speaker 2: just in case people haven't got that.
Speaker 3: Criminal liability is like when you are criminally charged by
Speaker 3: the state, by the government for violating a criminal law. Right,
Speaker 3: and when you are criminally charged, the what is on
Speaker 3: the table is that you might go to jail or
Speaker 3: you might go to prison. Yeah, you can also be
Speaker 3: civilly sued. And what's happening there is if someone says, okay,
Speaker 3: you've you know, you wrecked my car, or your dog
Speaker 3: bit me or you punched me in the face and
Speaker 3: I lost a tooth, then you can be civilly sued
Speaker 3: by that person for money. Damages, got it right to
Speaker 3: compensate you for the loss. So in this case, mister
Speaker 3: McKesson is being civilly sued, not arrested, not prosecuted, not
Speaker 3: subject like, there is no possibility that if he loses
Speaker 3: this case he'll go to jail.
Speaker 2: Yeah, so this civil case happens in Louisiana. Right, Yeah,
Speaker 2: let's talk about how it bounces around the Fifth Circuit.
Speaker 3: So I started to tell you that there were sort
Speaker 3: of these two cases. The first one is entirely dismissed.
Speaker 3: The second one they say, all right, Black Lives Matter
Speaker 3: is not an association that can be sued. These other
Speaker 3: individuals that you've named here as defendants were not present,
Speaker 3: made no statements about it. Well, first they dismissed the
Speaker 3: whole thing. Actually, then the cop appealed to the circuit,
Speaker 3: and the circuit said, yeah, mostly you're right, District Court,
Speaker 3: all of these people can't be sued. But mister McKesson,
Speaker 3: we do think could be liable under a theory of
Speaker 3: negligence because he organized the protest and was present. This
Speaker 3: officer sues McKesson and a bunch of other people, and
Speaker 3: the officer says that mister McKesson is liable because he
Speaker 3: organizes protests and should knew or should have known that
Speaker 3: it could potentially turn violent. And so he says under
Speaker 3: Louisiana law, he can sue on a theory of negligence,
Speaker 3: which doesn't require any kind of intent or certain knowledge.
Speaker 3: It's just being you know, negligent. Initially, the court, the
Speaker 3: Federal District Court, dismisses those claims, all of them based
Speaker 3: on NAACPD Claiborne, which I talked about earlier, right, which says,
Speaker 3: if you're at a protest and one person gets violent,
Speaker 3: like the rest of the protest doesn't get does not
Speaker 3: lose its First Amendment protected character just because other people
Speaker 3: are violent. Then the cop appeals and the Fifth Circuit
Speaker 3: in part affirms their rulings about all of the other
Speaker 3: people who were sued, but reinstates the negligence claim against
Speaker 3: mister McKesson. Right, he then does it. Never, by the way,
Speaker 3: has proceeded to trial. This case is still in a
Speaker 3: very preliminary phase. Oh wow, it has been going on
Speaker 3: since twenty seventeen and it's been bouncing up and down
Speaker 3: the courts. But the question is can he even be
Speaker 3: sued under this theory? So we haven't gotten he hasn't
Speaker 3: been found guilty, we haven't had a presentation of evidence.
Speaker 3: There's all kinds of stuff that has not yet happened.
Speaker 3: In this case. The question is very, very narrow. Can
Speaker 3: a person be sued under a theory of negligence when
Speaker 3: they organize a protest and somebody else at that protest causes.
Speaker 2: Some kind of harm.
Speaker 3: So the Fifth Circuit says, go back district court and
Speaker 3: hear this claim of negligence. McKesson then brings it to
Speaker 3: the Supreme Court, and the Supreme Court reverses the Fifth
Speaker 3: Circuit and says it overturns their decision and says, you
Speaker 3: actually can't force the district court to proceed with this
Speaker 3: trial because as you didn't check in with the Louisiana
Speaker 3: State Court to get their feedback about whether Louisiana state
Speaker 3: law actually allows for this kind of negligence claim.
Speaker 2: Okay, So like they missed procedurally, they fucked up.
Speaker 3: Yes. Then the Fifth Circuit says, okay, find Louisiana Supreme Court,
Speaker 3: what do you think? And the court says, yeah, we
Speaker 3: think you can proceed on this negligence claim. And then
Speaker 3: the Fifth Circuit affirms its previous ruling and says, okay, now,
Speaker 3: District Court, hear it again, and you can hear this
Speaker 3: negligence claim. As to mister McKesson. They tried to distinguish
Speaker 3: it from Claiborne. I don't think they did a good job.
Speaker 3: One of the there was a three judge panel that
Speaker 3: ruled on this, so it was a two to one ruling.
Speaker 3: Two of the judges tried to distinguish it from Claiborne.
Speaker 3: One of the judges says, no, you know, Claiborne, it's
Speaker 3: exactly the same controlling. You can only hold somebody liable
Speaker 3: for their own behavior, right, And one of the things
Speaker 3: he says is that if you make protest organizers liable
Speaker 3: for someone else's violent behavior, all accounter protester has to
Speaker 3: do is show up and start throwing rocks in order
Speaker 3: to get the whole protest to you know, to impute
Speaker 3: liability to the Yeah, the organizerson who organized the protest. Yeah,
Speaker 3: And that goes both ways, right. So I am sort
Speaker 3: of surprised that they given that there are social movements
Speaker 3: that are probably more aligned with the values and beliefs
Speaker 3: of these federal judges in the Fifth Circuit.
Speaker 2: So there.
Speaker 3: The Fifth Circuit at this point says, no, go back
Speaker 3: to the district court and have the trial on the
Speaker 3: theory of negligence. Right then, the Supreme Court decided a
Speaker 3: case called Counterman be. Colorado. Counterman be. Colorado is not
Speaker 3: a First Amendment political speech case. It's a case about
Speaker 3: somebody making threats. But that case relies very heavily on Clayborn.
Speaker 3: So in that case, we have what's called a true
Speaker 3: threats analysis, and they're trying to determine whether a person
Speaker 3: who's making threats needs to actually know that the threats
Speaker 3: they're making are going to be perceived as real threats.
Speaker 3: And what they decided was they do need to know
Speaker 3: to some degree that these statements could be taken as
Speaker 3: true threats. But they talk a lot. Kagan authored this opinion,
Speaker 3: and she talks a lot about how careful we have
Speaker 3: to be even with speech that is traditionally not protected,
Speaker 3: like true threats, because it's very important not to chill
Speaker 3: protected speech. And what she says is that the Court
Speaker 3: has always been really wary of chilling protected speech, and
Speaker 3: so sometimes it makes extra space for speech that isn't
Speaker 3: protected in order to make really sure it doesn't chill
Speaker 3: protected speech right. So, she says, the court must consider
Speaker 3: the prospect of chilling non threatening expression given the ordinary
Speaker 3: citizens predictable tendency to steer wide of the unlawful zone.
Speaker 3: The speaker's fear of mistaking whether a statement is a threat,
Speaker 3: his fear of the legal system getting that judgment wrong,
Speaker 3: his fear in any event of incurring legal costs, all
Speaker 3: those may lead him to swallow words that are in
Speaker 3: fact not true threats. And so what they say is
Speaker 3: we need to make a standard that has enough what
Speaker 3: they say is breathing room to make sure that even
Speaker 3: if it means that some unprotected speech gets through, we
Speaker 3: have enough space for all of the protected speech to
Speaker 3: still exist and for nobody to feel uncertain about whether
Speaker 3: or not their speech is protected.
Speaker 2: Yeah. Sure, they don't want to gradually like have a
Speaker 2: creeping sort of boundary.
Speaker 3: Yeah. So what she says is, if we're going to
Speaker 3: ban any kind of speech, it has to be known
Speaker 3: and knowable to the speaker, and there has to be
Speaker 3: sort of a requirement that the speaker is actually aware
Speaker 3: that this is not protected speech. And so in this case,
Speaker 3: encounterman with the guy who's making the bizarre threats.
Speaker 2: Right.
Speaker 3: What they decide is you only need to be reckless
Speaker 3: about the speech. You don't have to be doing it
Speaker 3: intentionally to threaten someone. But if you're saying things that
Speaker 3: you even if you don't mean it to be a threat,
Speaker 3: if you could reasonably anticipate that it will be received
Speaker 3: as a threat, that's sufficient. Okay, okay, And then she
Speaker 3: says this our incitement decisions, right, So Supreme Court decisions
Speaker 3: regarding incitement to violence demand more. But the reason for
Speaker 3: that demand is not present here where we're talking about threats.
Speaker 3: When incitement is at issue, we have spoken in terms
Speaker 3: of specific intent, presumably equivalent to purpose or knowledge. In
Speaker 3: doing so, we recognized that incitement to disorder is commonly
Speaker 3: a hair spread away from political advocacy, and particularly from
Speaker 3: strong protests against the government and prevailailing order. Such protests
Speaker 3: gave rise to all the cases in which the Court
Speaker 3: demanded a showing of intent, and the Court decided those
Speaker 3: cases against a resonant historical backdrop the Court's failure in
Speaker 3: an earlier era to protect mere advocacy of force or
Speaker 3: law breaking from legal sanction. A strong intent requirement was
Speaker 3: and remains one way to guarantee history was not repeated.
Speaker 3: It was a way to ensure the efforts to prosecute
Speaker 3: incitement would not bleed over, either directly or through a
Speaker 3: chilling effect, to dissenting political speech at the First Amendment's core. Okay,
Speaker 3: So we have this case that's decided days after the
Speaker 3: Fifth Circuit makes its decision that directly speaks to this decision. Yeah,
Speaker 3: reaffirms Clayborn, It reaffirms that political speech is protected. It
Speaker 3: reaffirms that you cannot have a negligence standard. You have
Speaker 3: to have a standard. You can't just say, well, somebody
Speaker 3: knew or should have known that organizing a protest might
Speaker 3: lead to violence, and you say, they have to be like,
Speaker 3: we're going to go out and we're going to do
Speaker 3: violence at this protest at this time. Right, they have
Speaker 3: to be actually advocating for violence in order to be
Speaker 3: held responsible for violence.
Speaker 2: Right, So how does this not just lead to his
Speaker 2: case being dismissed.
Speaker 3: So then at the same time as that's happening, mister
Speaker 3: McKesson has asked the court again to weigh in on
Speaker 3: whether this case can proceed under a negligence theory, right, meaning,
Speaker 3: should he have can he be prosecuted because it's possible
Speaker 3: that a protest will turn violent. And the court says,
Speaker 3: we're not going to hear this case. And somewhat unusually,
Speaker 3: Justice Sonya Soda Mayor issues a statement along with the
Speaker 3: denial of hearing the case, and she says, this court
Speaker 3: may deny what's called sorcherai right hearing the case. The
Speaker 3: Court may deny sorcherai for many reasons, including that the
Speaker 3: law is not in need of further clarification. Right, its
Speaker 3: denial today expresses no view about the merits of mckesson's claim.
Speaker 3: Although the Fifth Circuit did not have the benefit of
Speaker 3: this Court's recent decision Encounterman when it issued its opinion
Speaker 3: the lower courts now do I expect them to give
Speaker 3: full and fair consideration to arguments regarding Counterman's impact in
Speaker 3: any future proceedings. Right. So, I don't think that it's
Speaker 3: some like terrible thing that the court said, oh, no,
Speaker 3: we're not going to hear this case. I don't think
Speaker 3: they're saying in any way, oh we're not going to
Speaker 3: hear this case because we think it ought to proceed
Speaker 3: further and go to trial down in Louisiana. I think
Speaker 3: what they're saying, is we already decided this issue. The
Speaker 3: law remains the same. Claiborne is still the controlling case here.
Speaker 2: Right, Yeah, it seems very clear that what they're saying
Speaker 2: is that we've already made clear what we stand on this.
Speaker 3: That's right. And so the last thing that's on the
Speaker 3: docket in mister mckesson's case is basically a submission that
Speaker 3: reiterates what Justice Sodomyr said. I'll just treat you a
Speaker 3: little from this. It says, so do. Mayor's statement explains
Speaker 3: that the court's decision expresses no view about the merits
Speaker 3: of the claim because the law is not in need
Speaker 3: of further clarification. So it suggests that the existing clear
Speaker 3: law comes from countermen. Right. And the statement makes even
Speaker 3: clearer that the First Amendment does not permit liability on
Speaker 3: the negligence theory advanced by the COP in this case.
Speaker 3: It doesn't say the COP in this case. So it
Speaker 3: makes very clear, you know, they have submitted mister mckesson's
Speaker 3: council has submitted this statement to the judge, and I
Speaker 3: think there is every possibility that this case is just
Speaker 3: going to die at this point. You know, remember the
Speaker 3: District Court already dismissed it altogether at once, and it
Speaker 3: has only been carrying it forward because they were ordered
Speaker 3: to buy the Fifth Circuit.
Speaker 2: Yeah, yes, it we just go back to the district.
Speaker 3: Yeah, exactly. So, in fact, there has been a lot
Speaker 3: of anxiety about, oh, the Supreme Court is signaling that
Speaker 3: the law has changed and that the Fifth Circuit can
Speaker 3: just criminalize protest. In fact, what I think has happened
Speaker 3: here is that the Supreme Court affirmed that the Fifth
Speaker 3: Circuit may not expose people to civil liability for organizing
Speaker 3: a protest. That does not mean that the courts down
Speaker 3: there are not going to try to keep going forward
Speaker 3: with this. But I think if they did, and if
Speaker 3: mister McKesson was like a if they even allowed it
Speaker 3: to continue, it might just go right back up to
Speaker 3: the Supreme Court. And the Supreme Court might at that
Speaker 3: point hear it because they've already said, no, we expect
Speaker 3: you to follow the law that we just rearticulated in
Speaker 3: this other case. Right, But again, remember that we haven't
Speaker 3: had a trial yet. He hasn't been found guilty, he hasn't, right, Like,
Speaker 3: the question is, can we even proceed in this case.
Speaker 2: Let's take a second outbreak here, and then we'll come
Speaker 2: back and discuss This may have been over exaggerating in
Speaker 2: terms of important to state repression and protests, but that
Speaker 2: doesn't mean that state repression and protest is not happening, right,
Speaker 2: it is. So can you explain to us the mechanisms
Speaker 2: through which that happens and the considerations and resources available
Speaker 2: to people who may wish to exercise their First Amendment?
Speaker 1: Right?
Speaker 2: Yes?
Speaker 3: Absolutely so. Has it become more dangerous to protest? I mean,
Speaker 3: I guess, but not because of this case, right, right?
Speaker 2: Yeah, I mean in general it has. Right, They've been
Speaker 2: cops get bigger guns and more guns and tear gas
Speaker 2: things every year, and then they love to use them. Yeah,
Speaker 2: along with the legal consequences.
Speaker 3: Yes, And are there things that we should be worried about, Yes,
Speaker 3: But I don't think that this particular case on its
Speaker 3: own is the harbinger of the end of the First Amendment.
Speaker 3: It's one symptom of the larger underlying effort by the
Speaker 3: state and you know, corporate capital and all of the
Speaker 3: forces of retrogression and repression to quell dissent. But it's
Speaker 3: just one of many, right, And we've seen so many
Speaker 3: examples of this, and they are by no means new
Speaker 3: or novel, right, They're just trying out new legal theories,
Speaker 3: and this was one of them. And I don't think
Speaker 3: it's going to go anywhere, but I think we need
Speaker 3: to remember there's always sort of multiple fronts on which
Speaker 3: we're fighting this battle. Right. There's the legal front, right,
Speaker 3: and then there's the sort of on the ground law
Speaker 3: enforcement front. One of the reasons that mister McKesson was
Speaker 3: targeted here is because he did make and this is
Speaker 3: not to say this is his fault, it absolutely is not,
Speaker 3: but one of the things that made him more susceptible
Speaker 3: to targeting is that he did make a ton of
Speaker 3: public statements and he was extremely visible in a way
Speaker 3: that aligned with the governments and the right wings understanding
Speaker 3: of social structures. Right, because if they understand that social
Speaker 3: movements are being directed from the top, which is not
Speaker 3: typically the case, but if that's if that's what it
Speaker 3: looks like to them, and there is a person that
Speaker 3: they can identify who they can even a little bit
Speaker 3: make out, even the most tenuous case, is in charge,
Speaker 3: then you know that's the person they're going.
Speaker 2: To go after.
Speaker 3: Yeah, Yeah, so to the extent that we're doing organizing
Speaker 3: that where it is distributed, it is autonomous. You know,
Speaker 3: it is spontaneous. And we aren't working with in structures
Speaker 3: that are hierarchical, and we're not working in structures that
Speaker 3: are incorporated and have bank accounts in public meetings and
Speaker 3: membership structures. You know, we're already very insulated from this
Speaker 3: kind of thing. Anyway, The dangers are what the dangers
Speaker 3: have always been, which are mass arrests because the police
Speaker 3: neither know nor care what the law is, and they
Speaker 3: don't care about Clayborn, and they don't care that the
Speaker 3: fact that you did not personally throw a rock doesn't
Speaker 3: constitute probable cause to arrest you. Right like, I am
Speaker 3: always more concerned about things on the ground, like mass
Speaker 3: arrests and police involved injuries than I am about, frankly,
Speaker 3: about even long term legal consequences because so often, and
Speaker 3: I guess I say this because I have the privilege
Speaker 3: of practicing in New York where there is a very
Speaker 3: strong history of public protest and everyone sort of understands
Speaker 3: what that is and no one feels all that threatened
Speaker 3: by it. Which doesn't mean that there aren't a lot
Speaker 3: of police involved injuries. And it doesn't mean that there
Speaker 3: aren't a lot of traumatic arrests, but it does mean
Speaker 3: that typically there are not devastating legal consequences of that. Now,
Speaker 3: that's not the case in places like Georgia, right, where
Speaker 3: they're doing their own sort of boundary testing down there
Speaker 3: to see what kinds of criminal liability and what kinds
Speaker 3: of theories of criminal law they can use to sort
Speaker 3: of bootstrap absolutely garden variety protest behavior into really serious
Speaker 3: felony charges.
Speaker 1: Right.
Speaker 3: So that's the kind of stuff that I would say, yeah,
Speaker 3: we should be worried about it. It is dangerous to protest.
Speaker 3: There's widespread surveillance, there's widespread public private collaboration. There's widespread
Speaker 3: agency cooperation. There's all kinds of non state actors, right,
Speaker 3: corporate actors, political actors, random sort of individuals and small
Speaker 3: groups that are doing are engaged in all kinds of surveillance.
Speaker 3: There's counter groups, right, we have like you mentioned before,
Speaker 3: the Proud Boys, we have all kinds of well, look,
Speaker 3: Canary Mission is a really good example, right. We have
Speaker 3: all kinds of actors, groups, individuals, corporations, government entities that
Speaker 3: have an interest in suppressing descent, and they engage in
Speaker 3: all kinds of conduct, you know, ranging from intense surveillance
Speaker 3: to doxing to you know, even more violent behavior, you know,
Speaker 3: targeted harassment, not just by law enforcement, but by individuals,
Speaker 3: by neighbors, by media outlets. Right. And those are the
Speaker 3: kinds of things that make it dangerous to protest, I guess,
Speaker 3: But since when do we let that stop us? Right?
Speaker 3: You know? I mean the solution to these kinds of
Speaker 3: dangerous is to be thoughtful, to remember that discretion is
Speaker 3: the better part of valor, right, Meaning, you don't need
Speaker 3: to be bragging about whatever you're doing on Twitter. You
Speaker 3: don't need to always be the public face of the movement,
Speaker 3: because even if you're not speaking directly to cops in
Speaker 3: an interrogation, anything you say publicly can and very much
Speaker 3: will be used against you. Yeah, we're seeing a lot
Speaker 3: of employment and educational consequences right people are what's happening
Speaker 3: right now as we speak at Columbia University. People are
Speaker 3: losing their student housing, they're getting suspended from school, they're
Speaker 3: getting arrested, they're getting you know, these student disciplinary proceedings.
Speaker 3: There's all kinds of risks to being a public dissident.
Speaker 3: But the solution to that kind of repression is not
Speaker 3: self censorship, it's courage.
Speaker 2: There are other ways that we secure change, but showing
Speaker 2: up in the streets is always how you make history.
Speaker 2: And you have to be smart, but you also have
Speaker 2: to be brave. As we reach another election year, almost
Speaker 2: certainly like there will be protest, which whatever happens in
Speaker 2: the election, right, that will lead to people who are
Speaker 2: perhaps not so familiar with horizontal organizing, with like anti
Speaker 2: authoritarian or non authoritarian organizing, all these things, entering a
Speaker 2: protest movement, and people will inevitably have to learn like
Speaker 2: one way or the other, you know, like these basic
Speaker 2: things which they can do to make it as safe
Speaker 2: as possible to protest, And it would be great if
Speaker 2: they can learn them from a podcast note from them
Speaker 2: or their friends getting hurt.
Speaker 3: Here's what I would say too, if it is at
Speaker 3: all possible, find a lawyer who is willing to consult
Speaker 3: with you before you go out and do your action,
Speaker 3: just so that you can be prepared right for purposes
Speaker 3: of informed consent, because I cannot tell you. You know,
Speaker 3: lawyers are not allowed to advise their clients to break
Speaker 3: the law. But it's very much our job to tell
Speaker 3: you what the possible or likely consequences are of certain
Speaker 3: courses of action, and you are probably better off knowing
Speaker 3: what that is before you do the thing. Yes, then
Speaker 3: after you do that thing.
Speaker 2: Yeah, that's a good idea.
Speaker 3: I will tell you that. Personally, I would rather spend
Speaker 3: many hours talking people through, you know, the various outcomes
Speaker 3: of different ideas, than spending ten minutes talking to them
Speaker 3: after they're already in a cell. Right, you know there
Speaker 3: are ways of protesting that are entirely lawful that can
Speaker 3: still help you to accomplish your political goals. And if
Speaker 3: you are going to go out and do something that
Speaker 3: you think is likely to involve a rest, I at
Speaker 3: least want you to know that it is likely to
Speaker 3: involve our rest exactly you know, and what your specific
Speaker 3: risks might be, and to have somebody lined up to
Speaker 3: take care of you, to represent you if that becomes necessary. Right.
Speaker 3: I really don't mean to say, oh, don't worry about
Speaker 3: McKesson vedo, it's no big deal. It is a big deal.
Speaker 3: It's a big deal because this whole judicial system and
Speaker 3: legal apparatus is working over time to find every possible
Speaker 3: way to discourage protest. But it is not unique in
Speaker 3: that regard. And I guess that's really what I'm trying
Speaker 3: to say. There are all kinds of ways in which
Speaker 3: we are at risk by being dissidents. I just don't
Speaker 3: think that this one is particularly special or particularly alarming.
Speaker 3: And again, what I just referred to as the law
Speaker 3: of the land is not the same thing as law
Speaker 3: enforcement practice, right y.
Speaker 2: I would.
Speaker 3: Really want to make sure that everyone remembers a the
Speaker 3: law is not the same thing as justice, and neither
Speaker 3: is the law the same thing or even necessarily related
Speaker 3: to what police are doing on the ground during a protest.
Speaker 2: Right Yeah, there's very different things. Where can people I guess,
Speaker 2: people who are organizing, people who are organize autonomous, spontaneous,
Speaker 2: horizontal movements, are they good resources for them to find?
Speaker 2: Because they might be they might be in my state?
Speaker 2: What's you know, what do I have to avoid that
Speaker 2: kind of thing?
Speaker 1: Yes?
Speaker 2: Where would they find those?
Speaker 3: One resource if you are contacted by federal law enforcement
Speaker 3: is you can call the National Lawyers Guild Federal Anti
Speaker 3: Repression Hotline at two one two six seven nine two
Speaker 3: eight one one. A really good resource is the Electronic
Speaker 3: Frontier Foundation's Surveillance Self Defense, which is at S as
Speaker 3: in Surveillance, s as in Self d as in Defense
Speaker 3: dot E, as in Electronic f as in Frontier f
Speaker 3: as in Foundation dot org. The National Lawyers Guild has
Speaker 3: various know your Rights guides that are available at NLG
Speaker 3: dot org. We also have chapters all over the country
Speaker 3: and if you look in our referral directory you can
Speaker 3: find where those contacts for people all over the country.
Speaker 3: I think if you want a know your Rights training,
Speaker 3: you can reach out to the NALG and there are
Speaker 3: a lot of other a lot of other organizations that
Speaker 3: do know your Rights trainings. I know in New York
Speaker 3: we have a really amazing organization called Cuney Clear, and
Speaker 3: I would highly recommend you follow them on Instagram because
Speaker 3: they often have a lot of resources that they're posting.
Speaker 3: Protect your People a digital toolkit for organizations and employers,
Speaker 3: and it was developed to combat anti LGBTQ plus harassment,
Speaker 3: but I think the principles remain the same no matter
Speaker 3: what it is that you're looking at. And I'll put
Speaker 3: the link to that again. It's called Protect Your People
Speaker 3: and it's hosted by the Harvard Law LGBTQ clinic. But
Speaker 3: I'll stick the link here in the chat for you, James,
Speaker 3: so that you can share it in the show notes well.
Speaker 2: To finish up, you've mentioned the national Lawyers Guilds and
Speaker 2: some other resources. Is there anywhere else where people can
Speaker 2: find you or where you think that they should be
Speaker 2: following along? Like you know, like we said, we're going
Speaker 2: into an election year, stuff's probably becoming more relevant again.
Speaker 2: And there's a genocide happening right now that people are
Speaker 2: facing severe personal consequences for protesting.
Speaker 3: Yeah, I mean I don't. I don't want anyone to
Speaker 3: follow me on social media. Excellent, if that's what you're asking.
Speaker 3: I will always every single time plug landback dot org.
Speaker 3: And if people yes, I can see that you have
Speaker 3: a land Back flag behind you.
Speaker 2: Thank you. Listen. Yeah, there's a black one next.
Speaker 3: Okay, also a solid choice for flags if we gotta
Speaker 3: do flags. Oh also, please, for the love of god,
Speaker 3: don't talk to cops.
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Speaker 3: Hey can I shout someone out?
Speaker 2: Yeah? Please like that?
Speaker 3: Just randomly, I would like to shout out my beloved
Speaker 3: friend Marion, who I know listens to this program him
Speaker 3: Marian