WEBVTT - No, The Supreme Court Has Not Banned Protest 0:00:01.760 --> 0:00:05.240 Also media. 0:00:08.600 --> 0:00:11.320 Hi, everyone, welcome to the podcast. It's me James and 0:00:11.360 --> 0:00:14.840 I'm joined today by Moe, who is an attorney, educator 0:00:14.880 --> 0:00:17.920 and abolitionists've been on the show before. We've very much 0:00:18.000 --> 0:00:21.120 enjoyed the contributions. We're here today to talk about the 0:00:21.400 --> 0:00:24.400 recent Supreme Court not not decision right, but the Supreme 0:00:24.400 --> 0:00:26.960 Court declining to hear a case. It's been reported a 0:00:26.960 --> 0:00:30.440 little bit. Perhaps I think the importance of it may 0:00:30.480 --> 0:00:32.920 have been overstated, and it's going to help us understand that. 0:00:33.520 --> 0:00:34.680 How are you How are you doing today? 0:00:34.680 --> 0:00:37.280 Mo, I'm doing all right. How are you doing? 0:00:37.680 --> 0:00:39.760 I'm doing well. It's a nice day. Went for a 0:00:39.800 --> 0:00:43.080 run this morning, saw some flowers, picked some fennel. That 0:00:43.200 --> 0:00:44.400 was nice. 0:00:44.640 --> 0:00:45.520 Yeah, that's very nice. 0:00:45.600 --> 0:00:47.960 Yeah, wild fannel. If you live in southern California now 0:00:48.040 --> 0:00:52.800 so time. Just a little tip from me, don't get 0:00:52.800 --> 0:00:54.280 it at the height that dog's pe. You want to 0:00:54.320 --> 0:00:55.000 go above that. 0:00:55.640 --> 0:00:56.480 It's a pro tip. 0:00:57.200 --> 0:00:59.080 You can't say that. We don't fill this podcast with 0:00:59.120 --> 0:01:05.680 a little Easter eggs. Talking of little Easter eggs, let's 0:01:05.720 --> 0:01:10.160 get into the things that are buried within this. What 0:01:10.200 --> 0:01:12.479 happened was the Supreme Court declined to hear a case. 0:01:12.560 --> 0:01:13.039 Is that right? 0:01:13.640 --> 0:01:18.240 That's right. So the case that the Supreme Court declined 0:01:18.319 --> 0:01:24.240 to hear is McKesson b. Dough. This is a case 0:01:24.280 --> 0:01:28.240 that they have declined to hear eight times, and it 0:01:28.360 --> 0:01:32.360 keeps going back up and down from I think the 0:01:32.360 --> 0:01:38.440 Middle District of Louisiana to the Fifth Circuit all the 0:01:38.440 --> 0:01:41.800 way up to the Supreme Court. And it's a case 0:01:42.120 --> 0:01:46.160 that involves the First Amendment, and the way that it 0:01:46.200 --> 0:01:50.960 has been reported, I think, or at least the way 0:01:51.000 --> 0:01:57.240 that it has been received, particularly by communities of people 0:01:57.240 --> 0:02:01.240 who do engage in a lot of First Amendments protected activity, 0:02:02.360 --> 0:02:06.320 has been with a certain amount of panic. That the 0:02:06.360 --> 0:02:09.799 Supreme Court saying we're not going to hear this case. 0:02:09.960 --> 0:02:12.880 We're going to kick it back down to the Fifth Circuit, 0:02:12.919 --> 0:02:15.120 We're going to kick it back down to the district court, 0:02:16.120 --> 0:02:21.200 is you know, a harbinger of terrible things to come 0:02:21.960 --> 0:02:25.320 for the right to protest and for the kinds of 0:02:25.360 --> 0:02:29.239 liability that you might be exposed to if you are 0:02:29.400 --> 0:02:35.720 engaging in protest. And there is some truth to that. 0:02:36.720 --> 0:02:42.120 It is I would say, often dangerous to engage in 0:02:42.800 --> 0:02:47.480 acts of dissent. But I think that there's some real 0:02:47.560 --> 0:02:51.000 misapprehension of what's going on with this particular case, and 0:02:51.080 --> 0:02:53.720 so I thought it was worth having a conversation with 0:02:53.800 --> 0:02:56.919 you to try to clarify a little bit about what's 0:02:56.960 --> 0:03:02.480 going on here, what the risk saw are associated specifically 0:03:02.560 --> 0:03:06.920 with this case, and what the risks actually are on 0:03:06.960 --> 0:03:10.600 the ground with respect to protest, and also to talk 0:03:10.639 --> 0:03:12.960 to you about some of the resources that are available 0:03:13.040 --> 0:03:14.040 to protect yourself. 0:03:14.200 --> 0:03:14.720 Wonderful. 0:03:14.840 --> 0:03:18.000 Yeah, So I guess to give you a little roadmap. 0:03:18.080 --> 0:03:20.919 I think I'll start by talking to you about what 0:03:21.320 --> 0:03:24.760 is actually the law on the ground at this point 0:03:24.800 --> 0:03:27.720 with respect to the First Amendment and rights to protest? Yes, 0:03:28.320 --> 0:03:32.720 have those rights actually been meaningfully altered by this case 0:03:32.800 --> 0:03:35.440 or by the Supreme Court declining to hear this case? 0:03:36.480 --> 0:03:40.000 Has it actually become more dangerous to protest? Are there 0:03:40.120 --> 0:03:43.040 things that we should be worried about? What are they? 0:03:43.560 --> 0:03:46.800 And then what kinds of resources there are? I guess 0:03:46.840 --> 0:03:48.560 the first thing I'm going to do is give you 0:03:48.600 --> 0:03:52.480 a very brief premmer on the First Amendment. So, the 0:03:52.520 --> 0:03:56.360 First Amendment guarantees, as I like to say, the very 0:03:56.400 --> 0:03:59.920 First Amendment guarantees our rights to speech. In a sum 0:04:00.640 --> 0:04:02.800 the government can place limits on the time, place, and 0:04:02.920 --> 0:04:07.280 manner of your protest. But the government is not authorized 0:04:07.320 --> 0:04:12.320 to criminalize speech based on subject matter or viewpoint, and 0:04:12.360 --> 0:04:15.920 it can't impose what's called a prior restraint on speech, 0:04:16.880 --> 0:04:21.680 which can include making it so risky to speak that 0:04:21.760 --> 0:04:27.320 people engage in self censorship. But the First Amendment doesn't 0:04:27.440 --> 0:04:37.760 immunize you from prosecution or civil liability for otherwise unlawful conduct, right. 0:04:37.920 --> 0:04:42.919 So that's why true threats of violence are not protected 0:04:42.960 --> 0:04:47.680 by the First Amendment right, And it doesn't protect you 0:04:47.960 --> 0:04:53.719 from being arrested for behavior just because that behavior is 0:04:53.720 --> 0:04:58.720 politically motivated, which is why breaking Starbucks windows and graffiti 0:04:59.040 --> 0:05:02.760 and a fascination are not protected by the First Amendment. 0:05:03.440 --> 0:05:03.680 Right. 0:05:05.360 --> 0:05:09.720 On the other hand, the fact that there are one 0:05:09.839 --> 0:05:15.400 or more people at a demonstration who are acting unlawfully 0:05:16.240 --> 0:05:20.640 does not strip the larger demonstration of First Amendment protection. 0:05:21.720 --> 0:05:22.240 Right. 0:05:22.839 --> 0:05:28.239 And that principle comes from a case called NAACP versus 0:05:28.320 --> 0:05:34.040 Claiborne Hardware and Claiborne. It was decided in nineteen eighty two, 0:05:35.040 --> 0:05:39.160 and it was a case where the NAACP was sued 0:05:40.120 --> 0:05:45.760 civilly on the basis that they had organized a protest 0:05:46.279 --> 0:05:50.240 where some people in the crowd had caused some damage. 0:05:51.120 --> 0:05:56.680 I see this is a very very similar case to 0:05:57.400 --> 0:06:03.400 the underlying case in In this situation, where Deray McKesson 0:06:04.600 --> 0:06:13.640 has been sued civilly, meaning he's being sued for money damages, 0:06:14.120 --> 0:06:19.159 he is not being criminally prosecuted, right, That's an important distinction. So, 0:06:19.240 --> 0:06:20.760 you know what, let's back up a little bit. 0:06:21.040 --> 0:06:25.599 So, yeah, can you explain who is Deray McKesson. Why 0:06:25.680 --> 0:06:28.760 is Deray McKesson bouncing up and down between Louisiana and 0:06:28.800 --> 0:06:30.040 the Supreme Court? 0:06:30.520 --> 0:06:33.799 Yes? Okay, So I'm going to back up even farther 0:06:33.920 --> 0:06:37.640 than that. The reason that we are here today, that 0:06:37.680 --> 0:06:39.479 I am here with you talking about this case is 0:06:39.480 --> 0:06:43.080 that the way that this case is being reported on 0:06:43.240 --> 0:06:46.719 or received is that people are going, oh god, it's 0:06:46.920 --> 0:06:49.240 now illegal to protest, and we're all going to go 0:06:49.279 --> 0:06:54.440 to prison for protesting. Like, okay, I mean, first of all, please, 0:06:54.560 --> 0:06:58.640 using mass arrest of protesters to chill in silence speech 0:06:59.200 --> 0:07:04.839 is already a time honored American tradition. Yes, but that 0:07:05.040 --> 0:07:09.000 isn't what this case is about. This is a civil case, 0:07:09.880 --> 0:07:13.680 which means that somebody is being sued for money damages 0:07:14.480 --> 0:07:16.800 and the person who's being sued is de Ray McKesson. 0:07:17.160 --> 0:07:20.880 Deray McKesson was, at one point, for anyone who can 0:07:20.920 --> 0:07:28.280 remember a decade ago, was very high profile, very visible 0:07:28.560 --> 0:07:32.760 in the Black Lives Matter movement in Ferguson and in 0:07:32.800 --> 0:07:39.160 Baltimore and then later in Louisiana, And he was somebody 0:07:39.240 --> 0:07:42.480 who was very visible in the media. He made a 0:07:42.480 --> 0:07:45.400 lot of public statements. He made a lot of public 0:07:45.400 --> 0:07:50.400 statements on behalf of Black Lives Matter, which you know 0:07:50.520 --> 0:07:54.760 I'm going to get into is not a membership organization, 0:07:55.600 --> 0:07:58.200 but he made a bunch of statements as though he 0:07:58.400 --> 0:08:04.440 were the representative of a movement which he referred to 0:08:04.520 --> 0:08:08.640 as Black Lives Matter. He organized a lot of protests. 0:08:09.120 --> 0:08:11.000 I think at one point I have a memory that 0:08:11.040 --> 0:08:15.440 he ran for office. So he was a very visible 0:08:16.960 --> 0:08:22.080 movement organizer, right. He organized a protest in I believe 0:08:22.120 --> 0:08:27.520 twenty seventeen in the wake of the police murder of 0:08:28.280 --> 0:08:34.400 Altms Sterling, at which a police officer was hit in 0:08:34.480 --> 0:08:37.640 the head with a hard object, a rock or a 0:08:37.640 --> 0:08:41.160 piece of concrete, and he was like the police officer 0:08:41.320 --> 0:08:48.280 was injured, like pretty seriously, yeah, And he then sued 0:08:49.320 --> 0:08:56.920 Deray McKesson for money damages on the theory that because 0:08:57.120 --> 0:09:03.160 he had organized the protest, he had control of the protest, 0:09:04.120 --> 0:09:08.280 and he had some responsibility for the fact that this 0:09:08.400 --> 0:09:14.520 other person had thrown a rock at him. This theory 0:09:14.640 --> 0:09:18.480 requires a real failure to understand social movements and distributed 0:09:18.520 --> 0:09:22.720 networks because what it presumes, and I think we've talked 0:09:22.720 --> 0:09:27.760 about this before on this show, is the inability of 0:09:28.559 --> 0:09:35.480 the police and the courts to understand that not every 0:09:35.800 --> 0:09:42.199 social movement operates with a clear hierarchy like the police 0:09:42.720 --> 0:09:47.840 or the military. Because their social movement groups do imitate 0:09:48.160 --> 0:09:52.040 the military, they do imitate that hierarchy. They totally reproduce 0:09:52.600 --> 0:09:55.800 this sort of chain of command theory. So if you 0:09:55.880 --> 0:10:00.439 look at the clan, right, they are organized by they 0:10:00.440 --> 0:10:04.480 are incorporated, they have a membership, there is a clear hierarchy, 0:10:04.640 --> 0:10:07.200 who is in charge, who is giving orders, who is 0:10:07.240 --> 0:10:08.040 following orders? 0:10:08.640 --> 0:10:12.520 Right, That is not the case Proud Boys Patriot Front, 0:10:12.600 --> 0:10:16.680 like Very's of organizing without authority and the conceiving of 0:10:16.720 --> 0:10:19.240 anyone doing so, it would seem right. 0:10:19.360 --> 0:10:22.360 And so I think I've told you before. I've actually 0:10:22.400 --> 0:10:25.240 had to drop footnotes in federal court filings to explain 0:10:25.600 --> 0:10:28.120 that Antifa is not a membership organization. 0:10:29.160 --> 0:10:31.560 Yeah, this is a discussion that I have been privy 0:10:31.559 --> 0:10:35.920 to as a historian of the same organization. Yeah, originally 0:10:36.000 --> 0:10:40.439 it was ironically right that the KPg was. Yeah, when 0:10:40.480 --> 0:10:42.480 we're referring it to that, we're not talking about nineteen 0:10:42.520 --> 0:10:44.360 thirty three Germany. No. 0:10:45.240 --> 0:10:50.840 So you know when someone says and this becomes relevant 0:10:51.080 --> 0:10:56.760 here because the initially when this suit was filed, it 0:10:56.800 --> 0:11:01.800 was two different lawsuits, and it was a group of 0:11:01.840 --> 0:11:04.520 police officers who had been shot in different places in 0:11:04.559 --> 0:11:10.000 the country, suing not only Dura McKesson, but Black Lives Matter. 0:11:10.600 --> 0:11:15.480 And I think in fact, one of the defendants who 0:11:15.559 --> 0:11:19.000 was named in one of the initial suits was hashtag 0:11:19.040 --> 0:11:21.320 black Lives Matter. So I don't know how you serve 0:11:21.360 --> 0:11:22.000 a hashtag. 0:11:22.480 --> 0:11:26.040 Yeah, fascinating, totally fascinating. 0:11:26.080 --> 0:11:29.839 I mean, the legal theory underlying these cases was pretty bonkers. 0:11:30.840 --> 0:11:35.720 And then various other individuals who were part of different 0:11:35.760 --> 0:11:42.840 Black Lives Matter groups. Right, the initial suit that went 0:11:42.920 --> 0:11:49.480 after all these people and hashtags for the shootings were 0:11:49.679 --> 0:11:54.520 really just legally insufficient. Right, The allegations that were made 0:11:54.520 --> 0:11:59.800 were black Lives Matter whatever that is made statements about 0:12:00.200 --> 0:12:03.920 policing is unjust and police shouldn't be surprised if there's 0:12:04.200 --> 0:12:07.560 you know, if they encounter resistance, and then these other 0:12:07.760 --> 0:12:11.880 people kind of showed up and shot at cops. And 0:12:12.120 --> 0:12:17.240 the theory is that by sort of making these statements, 0:12:18.440 --> 0:12:25.360 Black Lives Matter encouraged or incited and was responsible for 0:12:25.440 --> 0:12:29.440 these shootings. Yes, this is not a This is not 0:12:29.480 --> 0:12:32.440 a valid legal theory, right, I mean, it just is not. 0:12:33.480 --> 0:12:37.000 And that case was dismissed, you know, just entirely. And 0:12:37.040 --> 0:12:39.160 then the second case it was brought was this one 0:12:39.200 --> 0:12:41.000 where the guy who was hit in the head with 0:12:41.040 --> 0:12:44.120 a rock, and it's the same allegations, the same theory 0:12:44.480 --> 0:12:48.520 of liability, and everybody got dismissed out of that case. 0:12:48.559 --> 0:12:50.560 All of the defendants got dismissed out of that case 0:12:50.640 --> 0:12:54.920 except for Deray McKesson. And part of the reason that 0:12:55.000 --> 0:12:57.960 everyone else was dismissed out of that case, or that 0:12:58.000 --> 0:13:02.760 the suit was dismissed with respect to those named defendants, 0:13:03.880 --> 0:13:10.320 is that Black Lives Matter was an unincorporated association, and 0:13:10.400 --> 0:13:16.080 an unincorporated association can't be sued. So and this has 0:13:16.120 --> 0:13:19.000 been relevant in other cases. I'm not trying to give 0:13:19.000 --> 0:13:21.800 anyone legal advice, but I want people to think about 0:13:21.880 --> 0:13:24.720 the fact. I think there's like a real impulse sometimes 0:13:24.760 --> 0:13:27.480 in social movement organizing that like we need to make 0:13:27.520 --> 0:13:28.560 everything a nonprofit. 0:13:29.240 --> 0:13:31.319 Yeah, yeah, they can, or we need to have. 0:13:31.240 --> 0:13:34.280 A bank account even And the fact is when you 0:13:34.720 --> 0:13:40.800 create an organization, even if it's an unincorporated association, that 0:13:40.840 --> 0:13:43.679 where the entity has what you would say is its 0:13:43.720 --> 0:13:48.600 personality is distinct from that of its members, right, right, Yeah, 0:13:49.440 --> 0:13:53.760 it can be sued. You become susceptible to a lawsuit. 0:13:54.240 --> 0:13:58.280 And so for example, when Energy Transfer Partners tried to 0:13:58.320 --> 0:14:02.480 sue there's currently a suit against green Peace, yes, the 0:14:02.520 --> 0:14:05.800 Standing Rock suit, and we'll talk about that later. Right, 0:14:05.840 --> 0:14:11.000 it's a slap suit. It's a suit that endeavors to 0:14:11.080 --> 0:14:15.800 stifle speech that's in the public interest. Right when that 0:14:15.960 --> 0:14:20.600 suit first started, they tried to sue earth First. But 0:14:20.760 --> 0:14:24.520 earth First is not an entity, right yeah, there's no 0:14:24.560 --> 0:14:27.800 one to serve, you know, there's nobody there. It's not 0:14:28.640 --> 0:14:30.920 you know, it's like antify. It'd be like trying to 0:14:30.960 --> 0:14:32.400 sue Batman fans. 0:14:33.160 --> 0:14:40.360 Right yeah, yeah, swifties, let's see it. 0:14:41.000 --> 0:14:44.840 Right, there's there are maybe people who identify in that way, 0:14:45.200 --> 0:14:48.400 but there is not a coherent group and there's certainly 0:14:48.400 --> 0:14:51.280 not a group that can take that can take responsibility 0:14:51.320 --> 0:14:53.160 for the behavior of its members. 0:14:53.280 --> 0:14:57.960 Right taking responsibility, we unfortunately have to take responsibility for 0:14:58.000 --> 0:14:59.560 the fact that we now have to pivot to. 0:14:59.560 --> 0:15:03.720 Add Okay, if you say so, I do. 0:15:03.840 --> 0:15:07.000 I'm so sorry. It's not my favorite part of my job. 0:15:17.200 --> 0:15:20.520 All Right, we're back there. We've fifty to add. So, yeah, 0:15:20.560 --> 0:15:23.440 we're talking about like this, the difference between like an 0:15:23.440 --> 0:15:26.880 incorporated organization, which can be So can you maybe just 0:15:27.400 --> 0:15:30.240 even if we step it back like a little bit 0:15:30.320 --> 0:15:35.040 further and explain the difference between civil and criminal liability, 0:15:35.120 --> 0:15:37.360 just in case people haven't got that. 0:15:38.040 --> 0:15:42.400 Criminal liability is like when you are criminally charged by 0:15:42.640 --> 0:15:49.880 the state, by the government for violating a criminal law. Right, 0:15:51.160 --> 0:15:55.400 and when you are criminally charged, the what is on 0:15:55.440 --> 0:15:57.680 the table is that you might go to jail or 0:15:57.720 --> 0:16:01.160 you might go to prison. Yeah, you can also be 0:16:01.280 --> 0:16:07.000 civilly sued. And what's happening there is if someone says, okay, 0:16:07.040 --> 0:16:11.200 you've you know, you wrecked my car, or your dog 0:16:11.280 --> 0:16:13.040 bit me or you punched me in the face and 0:16:13.080 --> 0:16:19.720 I lost a tooth, then you can be civilly sued 0:16:19.760 --> 0:16:23.880 by that person for money. Damages, got it right to 0:16:24.160 --> 0:16:30.080 compensate you for the loss. So in this case, mister 0:16:30.160 --> 0:16:36.480 McKesson is being civilly sued, not arrested, not prosecuted, not 0:16:36.720 --> 0:16:40.120 subject like, there is no possibility that if he loses 0:16:40.120 --> 0:16:41.400 this case he'll go to jail. 0:16:42.200 --> 0:16:48.160 Yeah, so this civil case happens in Louisiana. Right, Yeah, 0:16:48.200 --> 0:16:51.480 let's talk about how it bounces around the Fifth Circuit. 0:16:52.200 --> 0:16:54.320 So I started to tell you that there were sort 0:16:54.360 --> 0:16:57.280 of these two cases. The first one is entirely dismissed. 0:16:57.280 --> 0:17:01.360 The second one they say, all right, Black Lives Matter 0:17:01.640 --> 0:17:05.760 is not an association that can be sued. These other 0:17:05.840 --> 0:17:09.200 individuals that you've named here as defendants were not present, 0:17:09.400 --> 0:17:12.960 made no statements about it. Well, first they dismissed the 0:17:13.000 --> 0:17:18.000 whole thing. Actually, then the cop appealed to the circuit, 0:17:18.080 --> 0:17:21.240 and the circuit said, yeah, mostly you're right, District Court, 0:17:21.880 --> 0:17:24.840 all of these people can't be sued. But mister McKesson, 0:17:24.880 --> 0:17:27.879 we do think could be liable under a theory of 0:17:27.920 --> 0:17:33.000 negligence because he organized the protest and was present. This 0:17:33.160 --> 0:17:38.440 officer sues McKesson and a bunch of other people, and 0:17:38.480 --> 0:17:42.480 the officer says that mister McKesson is liable because he 0:17:42.960 --> 0:17:45.720 organizes protests and should knew or should have known that 0:17:45.760 --> 0:17:49.960 it could potentially turn violent. And so he says under 0:17:50.000 --> 0:17:53.800 Louisiana law, he can sue on a theory of negligence, 0:17:53.840 --> 0:17:58.040 which doesn't require any kind of intent or certain knowledge. 0:17:58.080 --> 0:18:03.720 It's just being you know, negligent. Initially, the court, the 0:18:03.840 --> 0:18:08.880 Federal District Court, dismisses those claims, all of them based 0:18:08.920 --> 0:18:14.320 on NAACPD Claiborne, which I talked about earlier, right, which says, 0:18:14.640 --> 0:18:17.359 if you're at a protest and one person gets violent, 0:18:17.640 --> 0:18:20.760 like the rest of the protest doesn't get does not 0:18:20.840 --> 0:18:25.560 lose its First Amendment protected character just because other people 0:18:26.000 --> 0:18:29.880 are violent. Then the cop appeals and the Fifth Circuit 0:18:30.240 --> 0:18:34.760 in part affirms their rulings about all of the other 0:18:35.000 --> 0:18:39.800 people who were sued, but reinstates the negligence claim against 0:18:39.840 --> 0:18:45.240 mister McKesson. Right, he then does it. Never, by the way, 0:18:45.280 --> 0:18:48.080 has proceeded to trial. This case is still in a 0:18:48.320 --> 0:18:52.879 very preliminary phase. Oh wow, it has been going on 0:18:52.960 --> 0:18:56.080 since twenty seventeen and it's been bouncing up and down 0:18:56.240 --> 0:19:02.600 the courts. But the question is can he even be 0:19:02.960 --> 0:19:07.879 sued under this theory? So we haven't gotten he hasn't 0:19:07.920 --> 0:19:11.679 been found guilty, we haven't had a presentation of evidence. 0:19:12.359 --> 0:19:15.360 There's all kinds of stuff that has not yet happened. 0:19:15.520 --> 0:19:23.000 In this case. The question is very, very narrow. Can 0:19:23.160 --> 0:19:28.880 a person be sued under a theory of negligence when 0:19:28.880 --> 0:19:35.280 they organize a protest and somebody else at that protest causes. 0:19:34.880 --> 0:19:36.400 Some kind of harm. 0:19:37.040 --> 0:19:42.000 So the Fifth Circuit says, go back district court and 0:19:42.119 --> 0:19:45.879 hear this claim of negligence. McKesson then brings it to 0:19:45.960 --> 0:19:50.440 the Supreme Court, and the Supreme Court reverses the Fifth 0:19:50.440 --> 0:19:56.439 Circuit and says it overturns their decision and says, you 0:19:56.560 --> 0:19:59.359 actually can't force the district court to proceed with this 0:19:59.400 --> 0:20:02.960 trial because as you didn't check in with the Louisiana 0:20:03.119 --> 0:20:09.000 State Court to get their feedback about whether Louisiana state 0:20:09.080 --> 0:20:15.040 law actually allows for this kind of negligence claim. 0:20:15.720 --> 0:20:18.399 Okay, So like they missed procedurally, they fucked up. 0:20:18.680 --> 0:20:23.200 Yes. Then the Fifth Circuit says, okay, find Louisiana Supreme Court, 0:20:23.240 --> 0:20:27.080 what do you think? And the court says, yeah, we 0:20:27.119 --> 0:20:30.280 think you can proceed on this negligence claim. And then 0:20:30.320 --> 0:20:33.240 the Fifth Circuit affirms its previous ruling and says, okay, now, 0:20:33.920 --> 0:20:36.320 District Court, hear it again, and you can hear this 0:20:36.400 --> 0:20:41.560 negligence claim. As to mister McKesson. They tried to distinguish 0:20:41.640 --> 0:20:45.080 it from Claiborne. I don't think they did a good job. 0:20:45.760 --> 0:20:48.840 One of the there was a three judge panel that 0:20:48.960 --> 0:20:51.840 ruled on this, so it was a two to one ruling. 0:20:51.880 --> 0:20:54.200 Two of the judges tried to distinguish it from Claiborne. 0:20:54.640 --> 0:21:00.440 One of the judges says, no, you know, Claiborne, it's 0:21:00.480 --> 0:21:05.399 exactly the same controlling. You can only hold somebody liable 0:21:05.520 --> 0:21:09.760 for their own behavior, right, And one of the things 0:21:09.800 --> 0:21:14.680 he says is that if you make protest organizers liable 0:21:14.760 --> 0:21:17.679 for someone else's violent behavior, all accounter protester has to 0:21:17.720 --> 0:21:20.760 do is show up and start throwing rocks in order 0:21:20.800 --> 0:21:29.000 to get the whole protest to you know, to impute 0:21:29.000 --> 0:21:34.760 liability to the Yeah, the organizerson who organized the protest. Yeah, 0:21:35.600 --> 0:21:39.680 And that goes both ways, right. So I am sort 0:21:39.680 --> 0:21:46.240 of surprised that they given that there are social movements 0:21:46.280 --> 0:21:49.879 that are probably more aligned with the values and beliefs 0:21:50.520 --> 0:21:52.919 of these federal judges in the Fifth Circuit. 0:21:54.000 --> 0:21:54.480 So there. 0:21:55.040 --> 0:21:57.399 The Fifth Circuit at this point says, no, go back 0:21:58.280 --> 0:22:00.439 to the district court and have the trial on the 0:22:00.440 --> 0:22:05.359 theory of negligence. Right then, the Supreme Court decided a 0:22:05.400 --> 0:22:12.199 case called Counterman be. Colorado. Counterman be. Colorado is not 0:22:12.440 --> 0:22:17.879 a First Amendment political speech case. It's a case about 0:22:17.880 --> 0:22:25.600 somebody making threats. But that case relies very heavily on Clayborn. 0:22:26.680 --> 0:22:30.520 So in that case, we have what's called a true 0:22:30.600 --> 0:22:34.800 threats analysis, and they're trying to determine whether a person 0:22:34.840 --> 0:22:39.199 who's making threats needs to actually know that the threats 0:22:39.200 --> 0:22:43.240 they're making are going to be perceived as real threats. 0:22:44.000 --> 0:22:47.199 And what they decided was they do need to know 0:22:47.720 --> 0:22:52.120 to some degree that these statements could be taken as 0:22:52.200 --> 0:22:56.080 true threats. But they talk a lot. Kagan authored this opinion, 0:22:56.080 --> 0:22:59.199 and she talks a lot about how careful we have 0:22:59.320 --> 0:23:03.520 to be even with speech that is traditionally not protected, 0:23:03.920 --> 0:23:08.639 like true threats, because it's very important not to chill 0:23:09.280 --> 0:23:12.879 protected speech. And what she says is that the Court 0:23:12.920 --> 0:23:17.359 has always been really wary of chilling protected speech, and 0:23:17.400 --> 0:23:23.399 so sometimes it makes extra space for speech that isn't 0:23:23.440 --> 0:23:26.400 protected in order to make really sure it doesn't chill 0:23:26.440 --> 0:23:31.880 protected speech right. So, she says, the court must consider 0:23:31.960 --> 0:23:36.680 the prospect of chilling non threatening expression given the ordinary 0:23:36.680 --> 0:23:41.920 citizens predictable tendency to steer wide of the unlawful zone. 0:23:42.280 --> 0:23:45.280 The speaker's fear of mistaking whether a statement is a threat, 0:23:45.400 --> 0:23:47.920 his fear of the legal system getting that judgment wrong, 0:23:48.480 --> 0:23:51.920 his fear in any event of incurring legal costs, all 0:23:51.960 --> 0:23:53.959 those may lead him to swallow words that are in 0:23:54.000 --> 0:23:58.800 fact not true threats. And so what they say is 0:23:59.840 --> 0:24:04.560 we need to make a standard that has enough what 0:24:04.640 --> 0:24:08.600 they say is breathing room to make sure that even 0:24:08.640 --> 0:24:12.679 if it means that some unprotected speech gets through, we 0:24:12.800 --> 0:24:16.600 have enough space for all of the protected speech to 0:24:16.680 --> 0:24:20.520 still exist and for nobody to feel uncertain about whether 0:24:20.600 --> 0:24:21.920 or not their speech is protected. 0:24:22.080 --> 0:24:24.639 Yeah. Sure, they don't want to gradually like have a 0:24:24.680 --> 0:24:27.000 creeping sort of boundary. 0:24:27.760 --> 0:24:30.240 Yeah. So what she says is, if we're going to 0:24:30.320 --> 0:24:34.840 ban any kind of speech, it has to be known 0:24:35.320 --> 0:24:40.479 and knowable to the speaker, and there has to be 0:24:40.560 --> 0:24:44.960 sort of a requirement that the speaker is actually aware 0:24:45.600 --> 0:24:50.480 that this is not protected speech. And so in this case, 0:24:50.640 --> 0:24:53.280 encounterman with the guy who's making the bizarre threats. 0:24:54.000 --> 0:24:54.280 Right. 0:24:54.520 --> 0:25:00.960 What they decide is you only need to be reckless 0:25:01.040 --> 0:25:05.479 about the speech. You don't have to be doing it 0:25:05.600 --> 0:25:09.920 intentionally to threaten someone. But if you're saying things that 0:25:10.600 --> 0:25:14.399 you even if you don't mean it to be a threat, 0:25:14.480 --> 0:25:17.159 if you could reasonably anticipate that it will be received 0:25:17.200 --> 0:25:21.600 as a threat, that's sufficient. Okay, okay, And then she 0:25:21.760 --> 0:25:28.080 says this our incitement decisions, right, So Supreme Court decisions 0:25:28.200 --> 0:25:34.639 regarding incitement to violence demand more. But the reason for 0:25:34.760 --> 0:25:38.560 that demand is not present here where we're talking about threats. 0:25:39.480 --> 0:25:43.040 When incitement is at issue, we have spoken in terms 0:25:43.080 --> 0:25:48.320 of specific intent, presumably equivalent to purpose or knowledge. In 0:25:48.400 --> 0:25:52.919 doing so, we recognized that incitement to disorder is commonly 0:25:52.960 --> 0:25:57.560 a hair spread away from political advocacy, and particularly from 0:25:57.600 --> 0:26:03.000 strong protests against the government and prevailailing order. Such protests 0:26:03.080 --> 0:26:06.080 gave rise to all the cases in which the Court 0:26:06.119 --> 0:26:10.000 demanded a showing of intent, and the Court decided those 0:26:10.040 --> 0:26:15.359 cases against a resonant historical backdrop the Court's failure in 0:26:15.440 --> 0:26:20.000 an earlier era to protect mere advocacy of force or 0:26:20.080 --> 0:26:25.600 law breaking from legal sanction. A strong intent requirement was 0:26:25.920 --> 0:26:29.840 and remains one way to guarantee history was not repeated. 0:26:31.040 --> 0:26:33.600 It was a way to ensure the efforts to prosecute 0:26:33.680 --> 0:26:37.879 incitement would not bleed over, either directly or through a 0:26:37.960 --> 0:26:43.200 chilling effect, to dissenting political speech at the First Amendment's core. Okay, 0:26:43.480 --> 0:26:49.919 So we have this case that's decided days after the 0:26:49.960 --> 0:27:00.280 Fifth Circuit makes its decision that directly speaks to this decision. Yeah, 0:27:00.760 --> 0:27:06.879 reaffirms Clayborn, It reaffirms that political speech is protected. It 0:27:06.920 --> 0:27:10.439 reaffirms that you cannot have a negligence standard. You have 0:27:10.480 --> 0:27:14.119 to have a standard. You can't just say, well, somebody 0:27:14.200 --> 0:27:16.560 knew or should have known that organizing a protest might 0:27:16.640 --> 0:27:20.680 lead to violence, and you say, they have to be like, 0:27:21.160 --> 0:27:23.119 we're going to go out and we're going to do 0:27:23.240 --> 0:27:26.959 violence at this protest at this time. Right, they have 0:27:27.040 --> 0:27:29.919 to be actually advocating for violence in order to be 0:27:30.000 --> 0:27:31.720 held responsible for violence. 0:27:32.640 --> 0:27:36.080 Right, So how does this not just lead to his 0:27:36.119 --> 0:27:38.240 case being dismissed. 0:27:38.960 --> 0:27:43.520 So then at the same time as that's happening, mister 0:27:43.600 --> 0:27:47.520 McKesson has asked the court again to weigh in on 0:27:48.040 --> 0:27:51.760 whether this case can proceed under a negligence theory, right, meaning, 0:27:52.560 --> 0:27:55.480 should he have can he be prosecuted because it's possible 0:27:55.480 --> 0:27:58.919 that a protest will turn violent. And the court says, 0:27:59.400 --> 0:28:03.560 we're not going to hear this case. And somewhat unusually, 0:28:05.240 --> 0:28:09.359 Justice Sonya Soda Mayor issues a statement along with the 0:28:09.400 --> 0:28:15.119 denial of hearing the case, and she says, this court 0:28:15.160 --> 0:28:19.679 may deny what's called sorcherai right hearing the case. The 0:28:19.720 --> 0:28:23.800 Court may deny sorcherai for many reasons, including that the 0:28:23.920 --> 0:28:29.720