May 13, 2024 • 46 mins
James talks to Mo about the supreme court’s decision not to hear the McKesson case, what it really means for protest, and wise legal strategy for protesters in a year of election and genocide.
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Episode Transcript
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Speaker 1 (00:01):
Also media.
Speaker 2 (00:08):
Hi, everyone, welcome to the podcast. It's me James and
I'm joined today by Moe, who is an attorney, educator
and abolitionists've been on the show before. We've very much
enjoyed the contributions. We're here today to talk about the
recent Supreme Court not not decision right, but the Supreme
Court declining to hear a case. It's been reported a
little bit. Perhaps I think the importance of it may
(00:30):
have been overstated, and it's going to help us understand that.
How are you How are you doing today?
Speaker 3 (00:34):
Mo, I'm doing all right. How are you doing?
Speaker 2 (00:37):
I'm doing well. It's a nice day. Went for a
run this morning, saw some flowers, picked some fennel. That
was nice.
Speaker 3 (00:44):
Yeah, that's very nice.
Speaker 2 (00:45):
Yeah, wild fannel. If you live in southern California now
so time. Just a little tip from me, don't get
it at the height that dog's pe. You want to
go above that.
Speaker 3 (00:55):
It's a pro tip.
Speaker 2 (00:57):
You can't say that. We don't fill this podcast with
a little Easter eggs. Talking of little Easter eggs, let's
get into the things that are buried within this. What
happened was the Supreme Court declined to hear a case.
Is that right?
Speaker 3 (01:13):
That's right. So the case that the Supreme Court declined
to hear is McKesson b. Dough. This is a case
that they have declined to hear eight times, and it
keeps going back up and down from I think the
Middle District of Louisiana to the Fifth Circuit all the
(01:38):
way up to the Supreme Court. And it's a case
that involves the First Amendment, and the way that it
has been reported, I think, or at least the way
that it has been received, particularly by communities of people
who do engage in a lot of First Amendments protected activity,
(02:02):
has been with a certain amount of panic. That the
Supreme Court saying we're not going to hear this case.
We're going to kick it back down to the Fifth Circuit,
We're going to kick it back down to the district court,
is you know, a harbinger of terrible things to come
for the right to protest and for the kinds of
(02:25):
liability that you might be exposed to if you are
engaging in protest. And there is some truth to that.
It is I would say, often dangerous to engage in
acts of dissent. But I think that there's some real
(02:47):
misapprehension of what's going on with this particular case, and
so I thought it was worth having a conversation with
you to try to clarify a little bit about what's
going on here, what the risk saw are associated specifically
with this case, and what the risks actually are on
the ground with respect to protest, and also to talk
(03:10):
to you about some of the resources that are available
to protect yourself.
Speaker 2 (03:14):
Wonderful.
Speaker 3 (03:14):
Yeah, So I guess to give you a little roadmap.
I think I'll start by talking to you about what
is actually the law on the ground at this point
with respect to the First Amendment and rights to protest? Yes,
have those rights actually been meaningfully altered by this case
or by the Supreme Court declining to hear this case?
(03:36):
Has it actually become more dangerous to protest? Are there
things that we should be worried about? What are they?
And then what kinds of resources there are? I guess
the first thing I'm going to do is give you
a very brief premmer on the First Amendment. So, the
First Amendment guarantees, as I like to say, the very
First Amendment guarantees our rights to speech. In a sum
(04:00):
the government can place limits on the time, place, and
manner of your protest. But the government is not authorized
to criminalize speech based on subject matter or viewpoint, and
it can't impose what's called a prior restraint on speech,
which can include making it so risky to speak that
(04:21):
people engage in self censorship. But the First Amendment doesn't
immunize you from prosecution or civil liability for otherwise unlawful conduct, right.
So that's why true threats of violence are not protected
(04:42):
by the First Amendment right, And it doesn't protect you
from being arrested for behavior just because that behavior is
politically motivated, which is why breaking Starbucks windows and graffiti
and a fascination are not protected by the First Amendment.
Speaker 2 (05:03):
Right.
Speaker 3 (05:05):
On the other hand, the fact that there are one
or more people at a demonstration who are acting unlawfully
does not strip the larger demonstration of First Amendment protection.
Speaker 2 (05:21):
Right.
Speaker 3 (05:22):
And that principle comes from a case called NAACP versus
Claiborne Hardware and Claiborne. It was decided in nineteen eighty two,
and it was a case where the NAACP was sued
civilly on the basis that they had organized a protest
(05:46):
where some people in the crowd had caused some damage.
I see this is a very very similar case to
the underlying case in In this situation, where Deray McKesson
has been sued civilly, meaning he's being sued for money damages,
(06:14):
he is not being criminally prosecuted, right, That's an important distinction. So,
you know what, let's back up a little bit.
Speaker 2 (06:21):
So, yeah, can you explain who is Deray McKesson. Why
is Deray McKesson bouncing up and down between Louisiana and
the Supreme Court?
Speaker 3 (06:30):
Yes? Okay, So I'm going to back up even farther
than that. The reason that we are here today, that
I am here with you talking about this case is
that the way that this case is being reported on
or received is that people are going, oh god, it's
now illegal to protest, and we're all going to go
to prison for protesting. Like, okay, I mean, first of all, please,
(06:54):
using mass arrest of protesters to chill in silence speech
is already a time honored American tradition. Yes, but that
isn't what this case is about. This is a civil case,
which means that somebody is being sued for money damages
and the person who's being sued is de Ray McKesson.
(07:17):
Deray McKesson was, at one point, for anyone who can
remember a decade ago, was very high profile, very visible
in the Black Lives Matter movement in Ferguson and in
Baltimore and then later in Louisiana, And he was somebody
(07:39):
who was very visible in the media. He made a
lot of public statements. He made a lot of public
statements on behalf of Black Lives Matter, which you know
I'm going to get into is not a membership organization,
but he made a bunch of statements as though he
were the representative of a movement which he referred to
(08:04):
as Black Lives Matter. He organized a lot of protests.
I think at one point I have a memory that
he ran for office. So he was a very visible
movement organizer, right. He organized a protest in I believe
twenty seventeen in the wake of the police murder of
(08:28):
Altms Sterling, at which a police officer was hit in
the head with a hard object, a rock or a
piece of concrete, and he was like the police officer
was injured, like pretty seriously, yeah, And he then sued
(08:49):
Deray McKesson for money damages on the theory that because
he had organized the protest, he had control of the protest,
and he had some responsibility for the fact that this
other person had thrown a rock at him. This theory
(09:14):
requires a real failure to understand social movements and distributed
networks because what it presumes, and I think we've talked
about this before on this show, is the inability of
the police and the courts to understand that not every
(09:35):
social movement operates with a clear hierarchy like the police
or the military. Because their social movement groups do imitate
the military, they do imitate that hierarchy. They totally reproduce
this sort of chain of command theory. So if you
(09:55):
look at the clan, right, they are organized by they
are incorporated, they have a membership, there is a clear hierarchy,
who is in charge, who is giving orders, who is
following orders?
Speaker 2 (10:08):
Right, That is not the case Proud Boys Patriot Front,
like Very's of organizing without authority and the conceiving of
anyone doing so, it would seem right.
Speaker 3 (10:19):
And so I think I've told you before. I've actually
had to drop footnotes in federal court filings to explain
that Antifa is not a membership organization.
Speaker 2 (10:29):
Yeah, this is a discussion that I have been privy
to as a historian of the same organization. Yeah, originally
it was ironically right that the KPg was. Yeah, when
we're referring it to that, we're not talking about nineteen
thirty three Germany. No.
Speaker 3 (10:45):
So you know when someone says and this becomes relevant
here because the initially when this suit was filed, it
was two different lawsuits, and it was a group of
police officers who had been shot in different places in
the country, suing not only Dura McKesson, but Black Lives Matter.
(11:10):
And I think in fact, one of the defendants who
was named in one of the initial suits was hashtag
black Lives Matter. So I don't know how you serve
a hashtag.
Speaker 2 (11:22):
Yeah, fascinating, totally fascinating.
Speaker 3 (11:26):
I mean, the legal theory underlying these cases was pretty bonkers.
And then various other individuals who were part of different
Black Lives Matter groups. Right, the initial suit that went
after all these people and hashtags for the shootings were
(11:49):
really just legally insufficient. Right, The allegations that were made
were black Lives Matter whatever that is made statements about
policing is unjust and police shouldn't be surprised if there's
you know, if they encounter resistance, and then these other
people kind of showed up and shot at cops. And
(12:12):
the theory is that by sort of making these statements,
Black Lives Matter encouraged or incited and was responsible for
these shootings. Yes, this is not a This is not
a valid legal theory, right, I mean, it just is not.
(12:33):
And that case was dismissed, you know, just entirely. And
then the second case it was brought was this one
where the guy who was hit in the head with
a rock, and it's the same allegations, the same theory
of liability, and everybody got dismissed out of that case.
All of the defendants got dismissed out of that case
except for Deray McKesson. And part of the reason that
(12:55):
everyone else was dismissed out of that case, or that
the suit was dismissed with respect to those named defendants,
is that Black Lives Matter was an unincorporated association, and
an unincorporated association can't be sued. So and this has
(13:16):
been relevant in other cases. I'm not trying to give
anyone legal advice, but I want people to think about
the fact. I think there's like a real impulse sometimes
in social movement organizing that like we need to make
everything a nonprofit.
Speaker 2 (13:29):
Yeah, yeah, they can, or we need to have.
Speaker 3 (13:31):
A bank account even And the fact is when you
create an organization, even if it's an unincorporated association, that
where the entity has what you would say is its
personality is distinct from that of its members, right, right, Yeah,
it can be sued. You become susceptible to a lawsuit.
(13:54):
And so for example, when Energy Transfer Partners tried to
sue there's currently a suit against green Peace, yes, the
Standing Rock suit, and we'll talk about that later. Right,
it's a slap suit. It's a suit that endeavors to
stifle speech that's in the public interest. Right when that
(14:15):
suit first started, they tried to sue earth First. But
earth First is not an entity, right yeah, there's no
one to serve, you know, there's nobody there. It's not
you know, it's like antify. It'd be like trying to
sue Batman fans.
Speaker 2 (14:33):
Right yeah, yeah, swifties, let's see it.
Speaker 3 (14:41):
Right, there's there are maybe people who identify in that way,
but there is not a coherent group and there's certainly
not a group that can take that can take responsibility
for the behavior of its members.
Speaker 2 (14:53):
Right taking responsibility, we unfortunately have to take responsibility for
the fact that we now have to pivot to.
Speaker 3 (14:59):
Add Okay, if you say so, I do.
Speaker 2 (15:03):
I'm so sorry. It's not my favorite part of my job.
All Right, we're back there. We've fifty to add. So, yeah,
we're talking about like this, the difference between like an
incorporated organization, which can be So can you maybe just
(15:27):
even if we step it back like a little bit
further and explain the difference between civil and criminal liability,
just in case people haven't got that.
Speaker 3 (15:38):
Criminal liability is like when you are criminally charged by
the state, by the government for violating a criminal law. Right,
and when you are criminally charged, the what is on
the table is that you might go to jail or
you might go to prison. Yeah, you can also be
(16:01):
civilly sued. And what's happening there is if someone says, okay,
you've you know, you wrecked my car, or your dog
bit me or you punched me in the face and
I lost a tooth, then you can be civilly sued
by that person for money. Damages, got it right to
(16:24):
compensate you for the loss. So in this case, mister
McKesson is being civilly sued, not arrested, not prosecuted, not
subject like, there is no possibility that if he loses
this case he'll go to jail.
Speaker 2 (16:42):
Yeah, so this civil case happens in Louisiana. Right, Yeah,
let's talk about how it bounces around the Fifth Circuit.
Speaker 3 (16:52):
So I started to tell you that there were sort
of these two cases. The first one is entirely dismissed.
The second one they say, all right, Black Lives Matter
is not an association that can be sued. These other
individuals that you've named here as defendants were not present,
made no statements about it. Well, first they dismissed the
(17:13):
whole thing. Actually, then the cop appealed to the circuit,
and the circuit said, yeah, mostly you're right, District Court,
all of these people can't be sued. But mister McKesson,
we do think could be liable under a theory of
negligence because he organized the protest and was present. This
(17:33):
officer sues McKesson and a bunch of other people, and
the officer says that mister McKesson is liable because he
organizes protests and should knew or should have known that
it could potentially turn violent. And so he says under
Louisiana law, he can sue on a theory of negligence,
(17:53):
which doesn't require any kind of intent or certain knowledge.
It's just being you know, negligent. Initially, the court, the
Federal District Court, dismisses those claims, all of them based
on NAACPD Claiborne, which I talked about earlier, right, which says,
(18:14):
if you're at a protest and one person gets violent,
like the rest of the protest doesn't get does not
lose its First Amendment protected character just because other people
are violent. Then the cop appeals and the Fifth Circuit
in part affirms their rulings about all of the other
(18:35):
people who were sued, but reinstates the negligence claim against
mister McKesson. Right, he then does it. Never, by the way,
has proceeded to trial. This case is still in a
very preliminary phase. Oh wow, it has been going on
since twenty seventeen and it's been bouncing up and down
(18:56):
the courts. But the question is can he even be
sued under this theory? So we haven't gotten he hasn't
been found guilty, we haven't had a presentation of evidence.
There's all kinds of stuff that has not yet happened.
In this case. The question is very, very narrow. Can
(19:23):
a person be sued under a theory of negligence when
they organize a protest and somebody else at that protest causes.
Speaker 2 (19:34):
Some kind of harm.
Speaker 3 (19:37):
So the Fifth Circuit says, go back district court and
hear this claim of negligence. McKesson then brings it to
the Supreme Court, and the Supreme Court reverses the Fifth
Circuit and says it overturns their decision and says, you
actually can't force the district court to proceed with this
(19:59):
trial because as you didn't check in with the Louisiana
State Court to get their feedback about whether Louisiana state
law actually allows for this kind of negligence claim.
Speaker 2 (20:15):
Okay, So like they missed procedurally, they fucked up.
Speaker 3 (20:18):
Yes. Then the Fifth Circuit says, okay, find Louisiana Supreme Court,
what do you think? And the court says, yeah, we
think you can proceed on this negligence claim. And then
the Fifth Circuit affirms its previous ruling and says, okay, now,
District Court, hear it again, and you can hear this
negligence claim. As to mister McKesson. They tried to distinguish
(20:41):
it from Claiborne. I don't think they did a good job.
One of the there was a three judge panel that
ruled on this, so it was a two to one ruling.
Two of the judges tried to distinguish it from Claiborne.
One of the judges says, no, you know, Claiborne, it's
exactly the same controlling. You can only hold somebody liable
(21:05):
for their own behavior, right, And one of the things
he says is that if you make protest organizers liable
for someone else's violent behavior, all accounter protester has to
do is show up and start throwing rocks in order
to get the whole protest to you know, to impute
(21:29):
liability to the Yeah, the organizerson who organized the protest. Yeah,
And that goes both ways, right. So I am sort
of surprised that they given that there are social movements
that are probably more aligned with the values and beliefs
(21:50):
of these federal judges in the Fifth Circuit.
Speaker 2 (21:54):
So there.
Speaker 3 (21:55):
The Fifth Circuit at this point says, no, go back
to the district court and have the trial on the
theory of negligence. Right then, the Supreme Court decided a
case called Counterman be. Colorado. Counterman be. Colorado is not
a First Amendment political speech case. It's a case about
(22:17):
somebody making threats. But that case relies very heavily on Clayborn.
So in that case, we have what's called a true
threats analysis, and they're trying to determine whether a person
who's making threats needs to actually know that the threats
(22:39):
they're making are going to be perceived as real threats.
And what they decided was they do need to know
to some degree that these statements could be taken as
true threats. But they talk a lot. Kagan authored this opinion,
and she talks a lot about how careful we have
(22:59):
to be even with speech that is traditionally not protected,
like true threats, because it's very important not to chill
protected speech. And what she says is that the Court
has always been really wary of chilling protected speech, and
so sometimes it makes extra space for speech that isn't
(23:23):
protected in order to make really sure it doesn't chill
protected speech right. So, she says, the court must consider
the prospect of chilling non threatening expression given the ordinary
citizens predictable tendency to steer wide of the unlawful zone.
The speaker's fear of mistaking whether a statement is a threat,
(23:45):
his fear of the legal system getting that judgment wrong,
his fear in any event of incurring legal costs, all
those may lead him to swallow words that are in
fact not true threats. And so what they say is
we need to make a standard that has enough what
they say is breathing room to make sure that even
(24:08):
if it means that some unprotected speech gets through, we
have enough space for all of the protected speech to
still exist and for nobody to feel uncertain about whether
or not their speech is protected.
Speaker 2 (24:22):
Yeah. Sure, they don't want to gradually like have a
creeping sort of boundary.
Speaker 3 (24:27):
Yeah. So what she says is, if we're going to
ban any kind of speech, it has to be known
and knowable to the speaker, and there has to be
sort of a requirement that the speaker is actually aware
that this is not protected speech. And so in this case,
(24:50):
encounterman with the guy who's making the bizarre threats.
Speaker 2 (24:54):
Right.
Speaker 3 (24:54):
What they decide is you only need to be reckless
about the speech. You don't have to be doing it
intentionally to threaten someone. But if you're saying things that
you even if you don't mean it to be a threat,
if you could reasonably anticipate that it will be received
(25:17):
as a threat, that's sufficient. Okay, okay, And then she
says this our incitement decisions, right, So Supreme Court decisions
regarding incitement to violence demand more. But the reason for
that demand is not present here where we're talking about threats.
(25:39):
When incitement is at issue, we have spoken in terms
of specific intent, presumably equivalent to purpose or knowledge. In
doing so, we recognized that incitement to disorder is commonly
a hair spread away from political advocacy, and particularly from
strong protests against the government and prevailailing order. Such protests
(26:03):
gave rise to all the cases in which the Court
demanded a showing of intent, and the Court decided those
cases against a resonant historical backdrop the Court's failure in
an earlier era to protect mere advocacy of force or
law breaking from legal sanction. A strong intent requirement was
(26:25):
and remains one way to guarantee history was not repeated.
It was a way to ensure the efforts to prosecute
incitement would not bleed over, either directly or through a
chilling effect, to dissenting political speech at the First Amendment's core. Okay,
So we have this case that's decided days after the
(26:49):
Fifth Circuit makes its decision that directly speaks to this decision. Yeah,
reaffirms Clayborn, It reaffirms that political speech is protected. It
reaffirms that you cannot have a negligence standard. You have
(27:10):
to have a standard. You can't just say, well, somebody
knew or should have known that organizing a protest might
lead to violence, and you say, they have to be like,
we're going to go out and we're going to do
violence at this protest at this time. Right, they have
to be actually advocating for violence in order to be
held responsible for violence.
Speaker 2 (27:32):
Right, So how does this not just lead to his
case being dismissed.
Speaker 3 (27:38):
So then at the same time as that's happening, mister
McKesson has asked the court again to weigh in on
whether this case can proceed under a negligence theory, right, meaning,
should he have can he be prosecuted because it's possible
that a protest will turn violent. And the court says,
(27:59):
we're not going to hear this case. And somewhat unusually,
Justice Sonya Soda Mayor issues a statement along with the
denial of hearing the case, and she says, this court
may deny what's called sorcherai right hearing the case. The
(28:19):
Court may deny sorcherai for many reasons, including that the
law is not in need of further clarification. Right, its
denial today expresses no view about the merits of mckesson's claim.
Although the Fifth Circuit did not have the benefit of
this Court's recent decision Encounterman when it issued its opinion
(28:41):
the lower courts now do I expect them to give
full and fair consideration to arguments regarding Counterman's impact in
any future proceedings. Right. So, I don't think that it's
some like terrible thing that the court said, oh, no,
we're not going to hear this case. I don't think
they're saying in any way, oh we're not going to
(29:02):
hear this case because we think it ought to proceed
further and go to trial down in Louisiana. I think
what they're saying, is we already decided this issue. The
law remains the same. Claiborne is still the controlling case here.
Speaker 2 (29:16):
Right, Yeah, it seems very clear that what they're saying
is that we've already made clear what we stand on this.
Speaker 3 (29:22):
That's right. And so the last thing that's on the
docket in mister mckesson's case is basically a submission that
reiterates what Justice Sodomyr said. I'll just treat you a
little from this. It says, so do. Mayor's statement explains
that the court's decision expresses no view about the merits
(29:46):
of the claim because the law is not in need
of further clarification. So it suggests that the existing clear
law comes from countermen. Right. And the statement makes even
clearer that the First Amendment does not permit liability on
the negligence theory advanced by the COP in this case.
(30:07):
It doesn't say the COP in this case. So it
makes very clear, you know, they have submitted mister mckesson's
council has submitted this statement to the judge, and I
think there is every possibility that this case is just
going to die at this point. You know, remember the
(30:32):
District Court already dismissed it altogether at once, and it
has only been carrying it forward because they were ordered
to buy the Fifth Circuit.
Speaker 2 (30:41):
Yeah, yes, it we just go back to the district.
Speaker 3 (30:46):
Yeah, exactly. So, in fact, there has been a lot
of anxiety about, oh, the Supreme Court is signaling that
the law has changed and that the Fifth Circuit can
just criminalize protest. In fact, what I think has happened
here is that the Supreme Court affirmed that the Fifth
Circuit may not expose people to civil liability for organizing
(31:11):
a protest. That does not mean that the courts down
there are not going to try to keep going forward
with this. But I think if they did, and if
mister McKesson was like a if they even allowed it
to continue, it might just go right back up to
(31:31):
the Supreme Court. And the Supreme Court might at that
point hear it because they've already said, no, we expect
you to follow the law that we just rearticulated in
this other case. Right, But again, remember that we haven't
had a trial yet. He hasn't been found guilty, he hasn't, right, Like,
(31:52):
the question is, can we even proceed in this case.
Speaker 2 (31:56):
Let's take a second outbreak here, and then we'll come
back and discuss This may have been over exaggerating in
terms of important to state repression and protests, but that
doesn't mean that state repression and protest is not happening, right,
(32:19):
it is. So can you explain to us the mechanisms
through which that happens and the considerations and resources available
to people who may wish to exercise their First Amendment?
Speaker 1 (32:29):
Right?
Speaker 2 (32:29):
Yes?
Speaker 3 (32:30):
Absolutely so. Has it become more dangerous to protest? I mean,
I guess, but not because of this case, right, right?
Speaker 2 (32:37):
Yeah, I mean in general it has. Right, They've been
cops get bigger guns and more guns and tear gas
things every year, and then they love to use them. Yeah,
along with the legal consequences.
Speaker 3 (32:49):
Yes, And are there things that we should be worried about, Yes,
But I don't think that this particular case on its
own is the harbinger of the end of the First Amendment.
It's one symptom of the larger underlying effort by the
(33:11):
state and you know, corporate capital and all of the
forces of retrogression and repression to quell dissent. But it's
just one of many, right, And we've seen so many
examples of this, and they are by no means new
or novel, right, They're just trying out new legal theories,
(33:35):
and this was one of them. And I don't think
it's going to go anywhere, but I think we need
to remember there's always sort of multiple fronts on which
we're fighting this battle. Right. There's the legal front, right,
and then there's the sort of on the ground law
enforcement front. One of the reasons that mister McKesson was
(33:58):
targeted here is because he did make and this is
not to say this is his fault, it absolutely is not,
but one of the things that made him more susceptible
to targeting is that he did make a ton of
public statements and he was extremely visible in a way
that aligned with the governments and the right wings understanding
(34:24):
of social structures. Right, because if they understand that social
movements are being directed from the top, which is not
typically the case, but if that's if that's what it
looks like to them, and there is a person that
they can identify who they can even a little bit
(34:46):
make out, even the most tenuous case, is in charge,
then you know that's the person they're going.
Speaker 2 (34:57):
To go after.
Speaker 3 (34:58):
Yeah, Yeah, so to the extent that we're doing organizing
that where it is distributed, it is autonomous. You know,
it is spontaneous. And we aren't working with in structures
that are hierarchical, and we're not working in structures that
are incorporated and have bank accounts in public meetings and
(35:20):
membership structures. You know, we're already very insulated from this
kind of thing. Anyway, The dangers are what the dangers
have always been, which are mass arrests because the police
neither know nor care what the law is, and they
don't care about Clayborn, and they don't care that the
(35:44):
fact that you did not personally throw a rock doesn't
constitute probable cause to arrest you. Right like, I am
always more concerned about things on the ground, like mass
arrests and police involved injuries than I am about, frankly,
about even long term legal consequences because so often, and
(36:05):
I guess I say this because I have the privilege
of practicing in New York where there is a very
strong history of public protest and everyone sort of understands
what that is and no one feels all that threatened
by it. Which doesn't mean that there aren't a lot
of police involved injuries. And it doesn't mean that there
(36:26):
aren't a lot of traumatic arrests, but it does mean
that typically there are not devastating legal consequences of that. Now,
that's not the case in places like Georgia, right, where
they're doing their own sort of boundary testing down there
to see what kinds of criminal liability and what kinds
(36:48):
of theories of criminal law they can use to sort
of bootstrap absolutely garden variety protest behavior into really serious
felony charges.
Speaker 1 (37:03):
Right.
Speaker 3 (37:04):
So that's the kind of stuff that I would say, yeah,
we should be worried about it. It is dangerous to protest.
There's widespread surveillance, there's widespread public private collaboration. There's widespread
agency cooperation. There's all kinds of non state actors, right,
corporate actors, political actors, random sort of individuals and small
(37:30):
groups that are doing are engaged in all kinds of surveillance.
There's counter groups, right, we have like you mentioned before,
the Proud Boys, we have all kinds of well, look,
Canary Mission is a really good example, right. We have
all kinds of actors, groups, individuals, corporations, government entities that
(37:51):
have an interest in suppressing descent, and they engage in
all kinds of conduct, you know, ranging from intense surveillance
to doxing to you know, even more violent behavior, you know,
targeted harassment, not just by law enforcement, but by individuals,
(38:15):
by neighbors, by media outlets. Right. And those are the
kinds of things that make it dangerous to protest, I guess,
But since when do we let that stop us? Right?
You know? I mean the solution to these kinds of
dangerous is to be thoughtful, to remember that discretion is
(38:36):
the better part of valor, right, Meaning, you don't need
to be bragging about whatever you're doing on Twitter. You
don't need to always be the public face of the movement,
because even if you're not speaking directly to cops in
an interrogation, anything you say publicly can and very much
will be used against you. Yeah, we're seeing a lot
of employment and educational consequences right people are what's happening
(38:58):
right now as we speak at Columbia University. People are
losing their student housing, they're getting suspended from school, they're
getting arrested, they're getting you know, these student disciplinary proceedings.
There's all kinds of risks to being a public dissident.
But the solution to that kind of repression is not
self censorship, it's courage.
Speaker 2 (39:21):
There are other ways that we secure change, but showing
up in the streets is always how you make history.
And you have to be smart, but you also have
to be brave. As we reach another election year, almost
certainly like there will be protest, which whatever happens in
the election, right, that will lead to people who are
(39:42):
perhaps not so familiar with horizontal organizing, with like anti
authoritarian or non authoritarian organizing, all these things, entering a
protest movement, and people will inevitably have to learn like
one way or the other, you know, like these basic
things which they can do to make it as safe
(40:02):
as possible to protest, And it would be great if
they can learn them from a podcast note from them
or their friends getting hurt.
Speaker 3 (40:08):
Here's what I would say too, if it is at
all possible, find a lawyer who is willing to consult
with you before you go out and do your action,
just so that you can be prepared right for purposes
of informed consent, because I cannot tell you. You know,
(40:30):
lawyers are not allowed to advise their clients to break
the law. But it's very much our job to tell
you what the possible or likely consequences are of certain
courses of action, and you are probably better off knowing
what that is before you do the thing. Yes, then
after you do that thing.
Speaker 2 (40:47):
Yeah, that's a good idea.
Speaker 3 (40:48):
I will tell you that. Personally, I would rather spend
many hours talking people through, you know, the various outcomes
of different ideas, than spending ten minutes talking to them
after they're already in a cell. Right, you know there
(41:09):
are ways of protesting that are entirely lawful that can
still help you to accomplish your political goals. And if
you are going to go out and do something that
you think is likely to involve a rest, I at
least want you to know that it is likely to
involve our rest exactly you know, and what your specific
(41:32):
risks might be, and to have somebody lined up to
take care of you, to represent you if that becomes necessary. Right.
I really don't mean to say, oh, don't worry about
McKesson vedo, it's no big deal. It is a big deal.
It's a big deal because this whole judicial system and
(41:53):
legal apparatus is working over time to find every possible
way to discourage protest. But it is not unique in
that regard. And I guess that's really what I'm trying
to say. There are all kinds of ways in which
we are at risk by being dissidents. I just don't
(42:16):
think that this one is particularly special or particularly alarming.
And again, what I just referred to as the law
of the land is not the same thing as law
enforcement practice, right y.
Speaker 2 (42:32):
I would.
Speaker 3 (42:34):
Really want to make sure that everyone remembers a the
law is not the same thing as justice, and neither
is the law the same thing or even necessarily related
to what police are doing on the ground during a protest.
Speaker 2 (42:51):
Right Yeah, there's very different things. Where can people I guess,
people who are organizing, people who are organize autonomous, spontaneous,
horizontal movements, are they good resources for them to find?
Because they might be they might be in my state?
What's you know, what do I have to avoid that
kind of thing?
Speaker 1 (43:11):
Yes?
Speaker 2 (43:12):
Where would they find those?
Speaker 3 (43:14):
One resource if you are contacted by federal law enforcement
is you can call the National Lawyers Guild Federal Anti
Repression Hotline at two one two six seven nine two
eight one one. A really good resource is the Electronic
Frontier Foundation's Surveillance Self Defense, which is at S as
(43:36):
in Surveillance, s as in Self d as in Defense
dot E, as in Electronic f as in Frontier f
as in Foundation dot org. The National Lawyers Guild has
various know your Rights guides that are available at NLG
(43:58):
dot org. We also have chapters all over the country
and if you look in our referral directory you can
find where those contacts for people all over the country.
I think if you want a know your Rights training,
you can reach out to the NALG and there are
(44:20):
a lot of other a lot of other organizations that
do know your Rights trainings. I know in New York
we have a really amazing organization called Cuney Clear, and
I would highly recommend you follow them on Instagram because
they often have a lot of resources that they're posting.
(44:40):
Protect your People a digital toolkit for organizations and employers,
and it was developed to combat anti LGBTQ plus harassment,
but I think the principles remain the same no matter
what it is that you're looking at. And I'll put
the link to that again. It's called Protect Your People
(45:02):
and it's hosted by the Harvard Law LGBTQ clinic. But
I'll stick the link here in the chat for you, James,
so that you can share it in the show notes well.
Speaker 2 (45:13):
To finish up, you've mentioned the national Lawyers Guilds and
some other resources. Is there anywhere else where people can
find you or where you think that they should be
following along? Like you know, like we said, we're going
into an election year, stuff's probably becoming more relevant again.
And there's a genocide happening right now that people are
facing severe personal consequences for protesting.
Speaker 3 (45:35):
Yeah, I mean I don't. I don't want anyone to
follow me on social media. Excellent, if that's what you're asking.
I will always every single time plug landback dot org.
And if people yes, I can see that you have
a land Back flag behind you.
Speaker 2 (45:55):
Thank you. Listen. Yeah, there's a black one next.
Speaker 3 (46:00):
Okay, also a solid choice for flags if we gotta
do flags. Oh also, please, for the love of god,
don't talk to cops.
Speaker 1 (46:14):
It could happen here as a production of cool Zone Media.
For more podcasts from cool Zone Media, visit our website
cool Zonemedia dot com, or check us out on the
iHeartRadio app, Apple Podcasts, or wherever you listen to podcasts.
You can find sources for it could happen here, Updated
monthly at cool zonemedia dot com slash sources. Thanks for listening.
Speaker 3 (46:32):
Hey can I shout someone out?
Speaker 2 (46:35):
Yeah? Please like that?
Speaker 3 (46:37):
Just randomly, I would like to shout out my beloved
friend Marion, who I know listens to this program him
Marian
Also media.
Speaker 2 (00:08):
Hi, everyone, welcome to the podcast. It's me James and
I'm joined today by Moe, who is an attorney, educator
and abolitionists've been on the show before. We've very much
enjoyed the contributions. We're here today to talk about the
recent Supreme Court not not decision right, but the Supreme
Court declining to hear a case. It's been reported a
little bit. Perhaps I think the importance of it may
(00:30):
have been overstated, and it's going to help us understand that.
How are you How are you doing today?
Speaker 3 (00:34):
Mo, I'm doing all right. How are you doing?
Speaker 2 (00:37):
I'm doing well. It's a nice day. Went for a
run this morning, saw some flowers, picked some fennel. That
was nice.
Speaker 3 (00:44):
Yeah, that's very nice.
Speaker 2 (00:45):
Yeah, wild fannel. If you live in southern California now
so time. Just a little tip from me, don't get
it at the height that dog's pe. You want to
go above that.
Speaker 3 (00:55):
It's a pro tip.
Speaker 2 (00:57):
You can't say that. We don't fill this podcast with
a little Easter eggs. Talking of little Easter eggs, let's
get into the things that are buried within this. What
happened was the Supreme Court declined to hear a case.
Is that right?
Speaker 3 (01:13):
That's right. So the case that the Supreme Court declined
to hear is McKesson b. Dough. This is a case
that they have declined to hear eight times, and it
keeps going back up and down from I think the
Middle District of Louisiana to the Fifth Circuit all the
(01:38):
way up to the Supreme Court. And it's a case
that involves the First Amendment, and the way that it
has been reported, I think, or at least the way
that it has been received, particularly by communities of people
who do engage in a lot of First Amendments protected activity,
(02:02):
has been with a certain amount of panic. That the
Supreme Court saying we're not going to hear this case.
We're going to kick it back down to the Fifth Circuit,
We're going to kick it back down to the district court,
is you know, a harbinger of terrible things to come
for the right to protest and for the kinds of
(02:25):
liability that you might be exposed to if you are
engaging in protest. And there is some truth to that.
It is I would say, often dangerous to engage in
acts of dissent. But I think that there's some real
(02:47):
misapprehension of what's going on with this particular case, and
so I thought it was worth having a conversation with
you to try to clarify a little bit about what's
going on here, what the risk saw are associated specifically
with this case, and what the risks actually are on
the ground with respect to protest, and also to talk
(03:10):
to you about some of the resources that are available
to protect yourself.
Speaker 2 (03:14):
Wonderful.
Speaker 3 (03:14):
Yeah, So I guess to give you a little roadmap.
I think I'll start by talking to you about what
is actually the law on the ground at this point
with respect to the First Amendment and rights to protest? Yes,
have those rights actually been meaningfully altered by this case
or by the Supreme Court declining to hear this case?
(03:36):
Has it actually become more dangerous to protest? Are there
things that we should be worried about? What are they?
And then what kinds of resources there are? I guess
the first thing I'm going to do is give you
a very brief premmer on the First Amendment. So, the
First Amendment guarantees, as I like to say, the very
First Amendment guarantees our rights to speech. In a sum
(04:00):
the government can place limits on the time, place, and
manner of your protest. But the government is not authorized
to criminalize speech based on subject matter or viewpoint, and
it can't impose what's called a prior restraint on speech,
which can include making it so risky to speak that
(04:21):
people engage in self censorship. But the First Amendment doesn't
immunize you from prosecution or civil liability for otherwise unlawful conduct, right.
So that's why true threats of violence are not protected
(04:42):
by the First Amendment right, And it doesn't protect you
from being arrested for behavior just because that behavior is
politically motivated, which is why breaking Starbucks windows and graffiti
and a fascination are not protected by the First Amendment.
Speaker 2 (05:03):
Right.
Speaker 3 (05:05):
On the other hand, the fact that there are one
or more people at a demonstration who are acting unlawfully
does not strip the larger demonstration of First Amendment protection.
Speaker 2 (05:21):
Right.
Speaker 3 (05:22):
And that principle comes from a case called NAACP versus
Claiborne Hardware and Claiborne. It was decided in nineteen eighty two,
and it was a case where the NAACP was sued
civilly on the basis that they had organized a protest
(05:46):
where some people in the crowd had caused some damage.
I see this is a very very similar case to
the underlying case in In this situation, where Deray McKesson
has been sued civilly, meaning he's being sued for money damages,
(06:14):
he is not being criminally prosecuted, right, That's an important distinction. So,
you know what, let's back up a little bit.
Speaker 2 (06:21):
So, yeah, can you explain who is Deray McKesson. Why
is Deray McKesson bouncing up and down between Louisiana and
the Supreme Court?
Speaker 3 (06:30):
Yes? Okay, So I'm going to back up even farther
than that. The reason that we are here today, that
I am here with you talking about this case is
that the way that this case is being reported on
or received is that people are going, oh god, it's
now illegal to protest, and we're all going to go
to prison for protesting. Like, okay, I mean, first of all, please,
(06:54):
using mass arrest of protesters to chill in silence speech
is already a time honored American tradition. Yes, but that
isn't what this case is about. This is a civil case,
which means that somebody is being sued for money damages
and the person who's being sued is de Ray McKesson.
(07:17):
Deray McKesson was, at one point, for anyone who can
remember a decade ago, was very high profile, very visible
in the Black Lives Matter movement in Ferguson and in
Baltimore and then later in Louisiana, And he was somebody
(07:39):
who was very visible in the media. He made a
lot of public statements. He made a lot of public
statements on behalf of Black Lives Matter, which you know
I'm going to get into is not a membership organization,
but he made a bunch of statements as though he
were the representative of a movement which he referred to
(08:04):
as Black Lives Matter. He organized a lot of protests.
I think at one point I have a memory that
he ran for office. So he was a very visible
movement organizer, right. He organized a protest in I believe
twenty seventeen in the wake of the police murder of
(08:28):
Altms Sterling, at which a police officer was hit in
the head with a hard object, a rock or a
piece of concrete, and he was like the police officer
was injured, like pretty seriously, yeah, And he then sued
(08:49):
Deray McKesson for money damages on the theory that because
he had organized the protest, he had control of the protest,
and he had some responsibility for the fact that this
other person had thrown a rock at him. This theory
(09:14):
requires a real failure to understand social movements and distributed
networks because what it presumes, and I think we've talked
about this before on this show, is the inability of
the police and the courts to understand that not every
(09:35):
social movement operates with a clear hierarchy like the police
or the military. Because their social movement groups do imitate
the military, they do imitate that hierarchy. They totally reproduce
this sort of chain of command theory. So if you
(09:55):
look at the clan, right, they are organized by they
are incorporated, they have a membership, there is a clear hierarchy,
who is in charge, who is giving orders, who is
following orders?
Speaker 2 (10:08):
Right, That is not the case Proud Boys Patriot Front,
like Very's of organizing without authority and the conceiving of
anyone doing so, it would seem right.
Speaker 3 (10:19):
And so I think I've told you before. I've actually
had to drop footnotes in federal court filings to explain
that Antifa is not a membership organization.
Speaker 2 (10:29):
Yeah, this is a discussion that I have been privy
to as a historian of the same organization. Yeah, originally
it was ironically right that the KPg was. Yeah, when
we're referring it to that, we're not talking about nineteen
thirty three Germany. No.
Speaker 3 (10:45):
So you know when someone says and this becomes relevant
here because the initially when this suit was filed, it
was two different lawsuits, and it was a group of
police officers who had been shot in different places in
the country, suing not only Dura McKesson, but Black Lives Matter.
(11:10):
And I think in fact, one of the defendants who
was named in one of the initial suits was hashtag
black Lives Matter. So I don't know how you serve
a hashtag.
Speaker 2 (11:22):
Yeah, fascinating, totally fascinating.
Speaker 3 (11:26):
I mean, the legal theory underlying these cases was pretty bonkers.
And then various other individuals who were part of different
Black Lives Matter groups. Right, the initial suit that went
after all these people and hashtags for the shootings were
(11:49):
really just legally insufficient. Right, The allegations that were made
were black Lives Matter whatever that is made statements about
policing is unjust and police shouldn't be surprised if there's
you know, if they encounter resistance, and then these other
people kind of showed up and shot at cops. And
(12:12):
the theory is that by sort of making these statements,
Black Lives Matter encouraged or incited and was responsible for
these shootings. Yes, this is not a This is not
a valid legal theory, right, I mean, it just is not.
(12:33):
And that case was dismissed, you know, just entirely. And
then the second case it was brought was this one
where the guy who was hit in the head with
a rock, and it's the same allegations, the same theory
of liability, and everybody got dismissed out of that case.
All of the defendants got dismissed out of that case
except for Deray McKesson. And part of the reason that
(12:55):
everyone else was dismissed out of that case, or that
the suit was dismissed with respect to those named defendants,
is that Black Lives Matter was an unincorporated association, and
an unincorporated association can't be sued. So and this has
(13:16):
been relevant in other cases. I'm not trying to give
anyone legal advice, but I want people to think about
the fact. I think there's like a real impulse sometimes
in social movement organizing that like we need to make
everything a nonprofit.
Speaker 2 (13:29):
Yeah, yeah, they can, or we need to have.
Speaker 3 (13:31):
A bank account even And the fact is when you
create an organization, even if it's an unincorporated association, that
where the entity has what you would say is its
personality is distinct from that of its members, right, right, Yeah,
it can be sued. You become susceptible to a lawsuit.
(13:54):
And so for example, when Energy Transfer Partners tried to
sue there's currently a suit against green Peace, yes, the
Standing Rock suit, and we'll talk about that later. Right,
it's a slap suit. It's a suit that endeavors to
stifle speech that's in the public interest. Right when that
(14:15):
suit first started, they tried to sue earth First. But
earth First is not an entity, right yeah, there's no
one to serve, you know, there's nobody there. It's not
you know, it's like antify. It'd be like trying to
sue Batman fans.
Speaker 2 (14:33):
Right yeah, yeah, swifties, let's see it.
Speaker 3 (14:41):
Right, there's there are maybe people who identify in that way,
but there is not a coherent group and there's certainly
not a group that can take that can take responsibility
for the behavior of its members.
Speaker 2 (14:53):
Right taking responsibility, we unfortunately have to take responsibility for
the fact that we now have to pivot to.
Speaker 3 (14:59):
Add Okay, if you say so, I do.
Speaker 2 (15:03):
I'm so sorry. It's not my favorite part of my job.
All Right, we're back there. We've fifty to add. So, yeah,
we're talking about like this, the difference between like an
incorporated organization, which can be So can you maybe just
(15:27):
even if we step it back like a little bit
further and explain the difference between civil and criminal liability,
just in case people haven't got that.
Speaker 3 (15:38):
Criminal liability is like when you are criminally charged by
the state, by the government for violating a criminal law. Right,
and when you are criminally charged, the what is on
the table is that you might go to jail or
you might go to prison. Yeah, you can also be
(16:01):
civilly sued. And what's happening there is if someone says, okay,
you've you know, you wrecked my car, or your dog
bit me or you punched me in the face and
I lost a tooth, then you can be civilly sued
by that person for money. Damages, got it right to
(16:24):
compensate you for the loss. So in this case, mister
McKesson is being civilly sued, not arrested, not prosecuted, not
subject like, there is no possibility that if he loses
this case he'll go to jail.
Speaker 2 (16:42):
Yeah, so this civil case happens in Louisiana. Right, Yeah,
let's talk about how it bounces around the Fifth Circuit.
Speaker 3 (16:52):
So I started to tell you that there were sort
of these two cases. The first one is entirely dismissed.
The second one they say, all right, Black Lives Matter
is not an association that can be sued. These other
individuals that you've named here as defendants were not present,
made no statements about it. Well, first they dismissed the
(17:13):
whole thing. Actually, then the cop appealed to the circuit,
and the circuit said, yeah, mostly you're right, District Court,
all of these people can't be sued. But mister McKesson,
we do think could be liable under a theory of
negligence because he organized the protest and was present. This
(17:33):
officer sues McKesson and a bunch of other people, and
the officer says that mister McKesson is liable because he
organizes protests and should knew or should have known that
it could potentially turn violent. And so he says under
Louisiana law, he can sue on a theory of negligence,
(17:53):
which doesn't require any kind of intent or certain knowledge.
It's just being you know, negligent. Initially, the court, the
Federal District Court, dismisses those claims, all of them based
on NAACPD Claiborne, which I talked about earlier, right, which says,
(18:14):
if you're at a protest and one person gets violent,
like the rest of the protest doesn't get does not
lose its First Amendment protected character just because other people
are violent. Then the cop appeals and the Fifth Circuit
in part affirms their rulings about all of the other
(18:35):
people who were sued, but reinstates the negligence claim against
mister McKesson. Right, he then does it. Never, by the way,
has proceeded to trial. This case is still in a
very preliminary phase. Oh wow, it has been going on
since twenty seventeen and it's been bouncing up and down
(18:56):
the courts. But the question is can he even be
sued under this theory? So we haven't gotten he hasn't
been found guilty, we haven't had a presentation of evidence.
There's all kinds of stuff that has not yet happened.
In this case. The question is very, very narrow. Can
(19:23):
a person be sued under a theory of negligence when
they organize a protest and somebody else at that protest causes.
Speaker 2 (19:34):
Some kind of harm.
Speaker 3 (19:37):
So the Fifth Circuit says, go back district court and
hear this claim of negligence. McKesson then brings it to
the Supreme Court, and the Supreme Court reverses the Fifth
Circuit and says it overturns their decision and says, you
actually can't force the district court to proceed with this
(19:59):
trial because as you didn't check in with the Louisiana
State Court to get their feedback about whether Louisiana state
law actually allows for this kind of negligence claim.
Speaker 2 (20:15):
Okay, So like they missed procedurally, they fucked up.
Speaker 3 (20:18):
Yes. Then the Fifth Circuit says, okay, find Louisiana Supreme Court,
what do you think? And the court says, yeah, we
think you can proceed on this negligence claim. And then
the Fifth Circuit affirms its previous ruling and says, okay, now,
District Court, hear it again, and you can hear this
negligence claim. As to mister McKesson. They tried to distinguish
(20:41):
it from Claiborne. I don't think they did a good job.
One of the there was a three judge panel that
ruled on this, so it was a two to one ruling.
Two of the judges tried to distinguish it from Claiborne.
One of the judges says, no, you know, Claiborne, it's
exactly the same controlling. You can only hold somebody liable
(21:05):
for their own behavior, right, And one of the things
he says is that if you make protest organizers liable
for someone else's violent behavior, all accounter protester has to
do is show up and start throwing rocks in order
to get the whole protest to you know, to impute
(21:29):
liability to the Yeah, the organizerson who organized the protest. Yeah,
And that goes both ways, right. So I am sort
of surprised that they given that there are social movements
that are probably more aligned with the values and beliefs
(21:50):
of these federal judges in the Fifth Circuit.
Speaker 2 (21:54):
So there.
Speaker 3 (21:55):
The Fifth Circuit at this point says, no, go back
to the district court and have the trial on the
theory of negligence. Right then, the Supreme Court decided a
case called Counterman be. Colorado. Counterman be. Colorado is not
a First Amendment political speech case. It's a case about
(22:17):
somebody making threats. But that case relies very heavily on Clayborn.
So in that case, we have what's called a true
threats analysis, and they're trying to determine whether a person
who's making threats needs to actually know that the threats
(22:39):
they're making are going to be perceived as real threats.
And what they decided was they do need to know
to some degree that these statements could be taken as
true threats. But they talk a lot. Kagan authored this opinion,
and she talks a lot about how careful we have
(22:59):
to be even with speech that is traditionally not protected,
like true threats, because it's very important not to chill
protected speech. And what she says is that the Court
has always been really wary of chilling protected speech, and
so sometimes it makes extra space for speech that isn't
(23:23):
protected in order to make really sure it doesn't chill
protected speech right. So, she says, the court must consider
the prospect of chilling non threatening expression given the ordinary
citizens predictable tendency to steer wide of the unlawful zone.
The speaker's fear of mistaking whether a statement is a threat,
(23:45):
his fear of the legal system getting that judgment wrong,
his fear in any event of incurring legal costs, all
those may lead him to swallow words that are in
fact not true threats. And so what they say is
we need to make a standard that has enough what
they say is breathing room to make sure that even
(24:08):
if it means that some unprotected speech gets through, we
have enough space for all of the protected speech to
still exist and for nobody to feel uncertain about whether
or not their speech is protected.
Speaker 2 (24:22):
Yeah. Sure, they don't want to gradually like have a
creeping sort of boundary.
Speaker 3 (24:27):
Yeah. So what she says is, if we're going to
ban any kind of speech, it has to be known
and knowable to the speaker, and there has to be
sort of a requirement that the speaker is actually aware
that this is not protected speech. And so in this case,
(24:50):
encounterman with the guy who's making the bizarre threats.
Speaker 2 (24:54):
Right.
Speaker 3 (24:54):
What they decide is you only need to be reckless
about the speech. You don't have to be doing it
intentionally to threaten someone. But if you're saying things that
you even if you don't mean it to be a threat,
if you could reasonably anticipate that it will be received
(25:17):
as a threat, that's sufficient. Okay, okay, And then she
says this our incitement decisions, right, So Supreme Court decisions
regarding incitement to violence demand more. But the reason for
that demand is not present here where we're talking about threats.
(25:39):
When incitement is at issue, we have spoken in terms
of specific intent, presumably equivalent to purpose or knowledge. In
doing so, we recognized that incitement to disorder is commonly
a hair spread away from political advocacy, and particularly from
strong protests against the government and prevailailing order. Such protests
(26:03):
gave rise to all the cases in which the Court
demanded a showing of intent, and the Court decided those
cases against a resonant historical backdrop the Court's failure in
an earlier era to protect mere advocacy of force or
law breaking from legal sanction. A strong intent requirement was
(26:25):
and remains one way to guarantee history was not repeated.
It was a way to ensure the efforts to prosecute
incitement would not bleed over, either directly or through a
chilling effect, to dissenting political speech at the First Amendment's core. Okay,
So we have this case that's decided days after the
(26:49):
Fifth Circuit makes its decision that directly speaks to this decision. Yeah,
reaffirms Clayborn, It reaffirms that political speech is protected. It
reaffirms that you cannot have a negligence standard. You have
(27:10):
to have a standard. You can't just say, well, somebody
knew or should have known that organizing a protest might
lead to violence, and you say, they have to be like,
we're going to go out and we're going to do
violence at this protest at this time. Right, they have
to be actually advocating for violence in order to be
held responsible for violence.
Speaker 2 (27:32):
Right, So how does this not just lead to his
case being dismissed.
Speaker 3 (27:38):
So then at the same time as that's happening, mister
McKesson has asked the court again to weigh in on
whether this case can proceed under a negligence theory, right, meaning,
should he have can he be prosecuted because it's possible
that a protest will turn violent. And the court says,
(27:59):
we're not going to hear this case. And somewhat unusually,
Justice Sonya Soda Mayor issues a statement along with the
denial of hearing the case, and she says, this court
may deny what's called sorcherai right hearing the case. The
(28:19):
Court may deny sorcherai for many reasons, including that the
law is not in need of further clarification. Right, its
denial today expresses no view about the merits of mckesson's claim.
Although the Fifth Circuit did not have the benefit of
this Court's recent decision Encounterman when it issued its opinion
(28:41):
the lower courts now do I expect them to give
full and fair consideration to arguments regarding Counterman's impact in
any future proceedings. Right. So, I don't think that it's
some like terrible thing that the court said, oh, no,
we're not going to hear this case. I don't think
they're saying in any way, oh we're not going to
(29:02):
hear this case because we think it ought to proceed
further and go to trial down in Louisiana. I think
what they're saying, is we already decided this issue. The
law remains the same. Claiborne is still the controlling case here.
Speaker 2 (29:16):
Right, Yeah, it seems very clear that what they're saying
is that we've already made clear what we stand on this.
Speaker 3 (29:22):
That's right. And so the last thing that's on the
docket in mister mckesson's case is basically a submission that
reiterates what Justice Sodomyr said. I'll just treat you a
little from this. It says, so do. Mayor's statement explains
that the court's decision expresses no view about the merits
(29:46):
of the claim because the law is not in need
of further clarification. So it suggests that the existing clear
law comes from countermen. Right. And the statement makes even
clearer that the First Amendment does not permit liability on
the negligence theory advanced by the COP in this case.
(30:07):
It doesn't say the COP in this case. So it
makes very clear, you know, they have submitted mister mckesson's
council has submitted this statement to the judge, and I
think there is every possibility that this case is just
going to die at this point. You know, remember the
(30:32):
District Court already dismissed it altogether at once, and it
has only been carrying it forward because they were ordered
to buy the Fifth Circuit.
Speaker 2 (30:41):
Yeah, yes, it we just go back to the district.
Speaker 3 (30:46):
Yeah, exactly. So, in fact, there has been a lot
of anxiety about, oh, the Supreme Court is signaling that
the law has changed and that the Fifth Circuit can
just criminalize protest. In fact, what I think has happened
here is that the Supreme Court affirmed that the Fifth
Circuit may not expose people to civil liability for organizing
(31:11):
a protest. That does not mean that the courts down
there are not going to try to keep going forward
with this. But I think if they did, and if
mister McKesson was like a if they even allowed it
to continue, it might just go right back up to
(31:31):
the Supreme Court. And the Supreme Court might at that
point hear it because they've already said, no, we expect
you to follow the law that we just rearticulated in
this other case. Right, But again, remember that we haven't
had a trial yet. He hasn't been found guilty, he hasn't, right, Like,
(31:52):
the question is, can we even proceed in this case.
Speaker 2 (31:56):
Let's take a second outbreak here, and then we'll come
back and discuss This may have been over exaggerating in
terms of important to state repression and protests, but that
doesn't mean that state repression and protest is not happening, right,
(32:19):
it is. So can you explain to us the mechanisms
through which that happens and the considerations and resources available
to people who may wish to exercise their First Amendment?
Speaker 1 (32:29):
Right?
Speaker 2 (32:29):
Yes?
Speaker 3 (32:30):
Absolutely so. Has it become more dangerous to protest? I mean,
I guess, but not because of this case, right, right?
Speaker 2 (32:37):
Yeah, I mean in general it has. Right, They've been
cops get bigger guns and more guns and tear gas
things every year, and then they love to use them. Yeah,
along with the legal consequences.
Speaker 3 (32:49):
Yes, And are there things that we should be worried about, Yes,
But I don't think that this particular case on its
own is the harbinger of the end of the First Amendment.
It's one symptom of the larger underlying effort by the
(33:11):
state and you know, corporate capital and all of the
forces of retrogression and repression to quell dissent. But it's
just one of many, right, And we've seen so many
examples of this, and they are by no means new
or novel, right, They're just trying out new legal theories,
(33:35):
and this was one of them. And I don't think
it's going to go anywhere, but I think we need
to remember there's always sort of multiple fronts on which
we're fighting this battle. Right. There's the legal front, right,
and then there's the sort of on the ground law
enforcement front. One of the reasons that mister McKesson was
(33:58):
targeted here is because he did make and this is
not to say this is his fault, it absolutely is not,
but one of the things that made him more susceptible
to targeting is that he did make a ton of
public statements and he was extremely visible in a way
that aligned with the governments and the right wings understanding
(34:24):
of social structures. Right, because if they understand that social
movements are being directed from the top, which is not
typically the case, but if that's if that's what it
looks like to them, and there is a person that
they can identify who they can even a little bit
(34:46):
make out, even the most tenuous case, is in charge,
then you know that's the person they're going.
Speaker 2 (34:57):
To go after.
Speaker 3 (34:58):
Yeah, Yeah, so to the extent that we're doing organizing
that where it is distributed, it is autonomous. You know,
it is spontaneous. And we aren't working with in structures
that are hierarchical, and we're not working in structures that
are incorporated and have bank accounts in public meetings and
(35:20):
membership structures. You know, we're already very insulated from this
kind of thing. Anyway, The dangers are what the dangers
have always been, which are mass arrests because the police
neither know nor care what the law is, and they
don't care about Clayborn, and they don't care that the
(35:44):
fact that you did not personally throw a rock doesn't
constitute probable cause to arrest you. Right like, I am
always more concerned about things on the ground, like mass
arrests and police involved injuries than I am about, frankly,
about even long term legal consequences because so often, and
(36:05):
I guess I say this because I have the privilege
of practicing in New York where there is a very
strong history of public protest and everyone sort of understands
what that is and no one feels all that threatened
by it. Which doesn't mean that there aren't a lot
of police involved injuries. And it doesn't mean that there
(36:26):
aren't a lot of traumatic arrests, but it does mean
that typically there are not devastating legal consequences of that. Now,
that's not the case in places like Georgia, right, where
they're doing their own sort of boundary testing down there
to see what kinds of criminal liability and what kinds
(36:48):
of theories of criminal law they can use to sort
of bootstrap absolutely garden variety protest behavior into really serious
felony charges.
Speaker 1 (37:03):
Right.
Speaker 3 (37:04):
So that's the kind of stuff that I would say, yeah,
we should be worried about it. It is dangerous to protest.
There's widespread surveillance, there's widespread public private collaboration. There's widespread
agency cooperation. There's all kinds of non state actors, right,
corporate actors, political actors, random sort of individuals and small
(37:30):
groups that are doing are engaged in all kinds of surveillance.
There's counter groups, right, we have like you mentioned before,
the Proud Boys, we have all kinds of well, look,
Canary Mission is a really good example, right. We have
all kinds of actors, groups, individuals, corporations, government entities that
(37:51):
have an interest in suppressing descent, and they engage in
all kinds of conduct, you know, ranging from intense surveillance
to doxing to you know, even more violent behavior, you know,
targeted harassment, not just by law enforcement, but by individuals,
(38:15):
by neighbors, by media outlets. Right. And those are the
kinds of things that make it dangerous to protest, I guess,
But since when do we let that stop us? Right?
You know? I mean the solution to these kinds of
dangerous is to be thoughtful, to remember that discretion is
(38:36):
the better part of valor, right, Meaning, you don't need
to be bragging about whatever you're doing on Twitter. You
don't need to always be the public face of the movement,
because even if you're not speaking directly to cops in
an interrogation, anything you say publicly can and very much
will be used against you. Yeah, we're seeing a lot
of employment and educational consequences right people are what's happening
(38:58):
right now as we speak at Columbia University. People are
losing their student housing, they're getting suspended from school, they're
getting arrested, they're getting you know, these student disciplinary proceedings.
There's all kinds of risks to being a public dissident.
But the solution to that kind of repression is not
self censorship, it's courage.
Speaker 2 (39:21):
There are other ways that we secure change, but showing
up in the streets is always how you make history.
And you have to be smart, but you also have
to be brave. As we reach another election year, almost
certainly like there will be protest, which whatever happens in
the election, right, that will lead to people who are
(39:42):
perhaps not so familiar with horizontal organizing, with like anti
authoritarian or non authoritarian organizing, all these things, entering a
protest movement, and people will inevitably have to learn like
one way or the other, you know, like these basic
things which they can do to make it as safe
(40:02):
as possible to protest, And it would be great if
they can learn them from a podcast note from them
or their friends getting hurt.
Speaker 3 (40:08):
Here's what I would say too, if it is at
all possible, find a lawyer who is willing to consult
with you before you go out and do your action,
just so that you can be prepared right for purposes
of informed consent, because I cannot tell you. You know,
(40:30):
lawyers are not allowed to advise their clients to break
the law. But it's very much our job to tell
you what the possible or likely consequences are of certain
courses of action, and you are probably better off knowing
what that is before you do the thing. Yes, then
after you do that thing.
Speaker 2 (40:47):
Yeah, that's a good idea.
Speaker 3 (40:48):
I will tell you that. Personally, I would rather spend
many hours talking people through, you know, the various outcomes
of different ideas, than spending ten minutes talking to them
after they're already in a cell. Right, you know there
(41:09):
are ways of protesting that are entirely lawful that can
still help you to accomplish your political goals. And if
you are going to go out and do something that
you think is likely to involve a rest, I at
least want you to know that it is likely to
involve our rest exactly you know, and what your specific
(41:32):
risks might be, and to have somebody lined up to
take care of you, to represent you if that becomes necessary. Right.
I really don't mean to say, oh, don't worry about
McKesson vedo, it's no big deal. It is a big deal.
It's a big deal because this whole judicial system and
(41:53):
legal apparatus is working over time to find every possible
way to discourage protest. But it is not unique in
that regard. And I guess that's really what I'm trying
to say. There are all kinds of ways in which
we are at risk by being dissidents. I just don't
(42:16):
think that this one is particularly special or particularly alarming.
And again, what I just referred to as the law
of the land is not the same thing as law
enforcement practice, right y.
Speaker 2 (42:32):
I would.
Speaker 3 (42:34):
Really want to make sure that everyone remembers a the
law is not the same thing as justice, and neither
is the law the same thing or even necessarily related
to what police are doing on the ground during a protest.
Speaker 2 (42:51):
Right Yeah, there's very different things. Where can people I guess,
people who are organizing, people who are organize autonomous, spontaneous,
horizontal movements, are they good resources for them to find?
Because they might be they might be in my state?
What's you know, what do I have to avoid that
kind of thing?
Speaker 1 (43:11):
Yes?
Speaker 2 (43:12):
Where would they find those?
Speaker 3 (43:14):
One resource if you are contacted by federal law enforcement
is you can call the National Lawyers Guild Federal Anti
Repression Hotline at two one two six seven nine two
eight one one. A really good resource is the Electronic
Frontier Foundation's Surveillance Self Defense, which is at S as
(43:36):
in Surveillance, s as in Self d as in Defense
dot E, as in Electronic f as in Frontier f
as in Foundation dot org. The National Lawyers Guild has
various know your Rights guides that are available at NLG
(43:58):
dot org. We also have chapters all over the country
and if you look in our referral directory you can
find where those contacts for people all over the country.
I think if you want a know your Rights training,
you can reach out to the NALG and there are
(44:20):
a lot of other a lot of other organizations that
do know your Rights trainings. I know in New York
we have a really amazing organization called Cuney Clear, and
I would highly recommend you follow them on Instagram because
they often have a lot of resources that they're posting.
(44:40):
Protect your People a digital toolkit for organizations and employers,
and it was developed to combat anti LGBTQ plus harassment,
but I think the principles remain the same no matter
what it is that you're looking at. And I'll put
the link to that again. It's called Protect Your People
(45:02):
and it's hosted by the Harvard Law LGBTQ clinic. But
I'll stick the link here in the chat for you, James,
so that you can share it in the show notes well.
Speaker 2 (45:13):
To finish up, you've mentioned the national Lawyers Guilds and
some other resources. Is there anywhere else where people can
find you or where you think that they should be
following along? Like you know, like we said, we're going
into an election year, stuff's probably becoming more relevant again.
And there's a genocide happening right now that people are
facing severe personal consequences for protesting.
Speaker 3 (45:35):
Yeah, I mean I don't. I don't want anyone to
follow me on social media. Excellent, if that's what you're asking.
I will always every single time plug landback dot org.
And if people yes, I can see that you have
a land Back flag behind you.
Speaker 2 (45:55):
Thank you. Listen. Yeah, there's a black one next.
Speaker 3 (46:00):
Okay, also a solid choice for flags if we gotta
do flags. Oh also, please, for the love of god,
don't talk to cops.
Speaker 1 (46:14):
It could happen here as a production of cool Zone Media.
For more podcasts from cool Zone Media, visit our website
cool Zonemedia dot com, or check us out on the
iHeartRadio app, Apple Podcasts, or wherever you listen to podcasts.
You can find sources for it could happen here, Updated
monthly at cool zonemedia dot com slash sources. Thanks for listening.
Speaker 3 (46:32):
Hey can I shout someone out?
Speaker 2 (46:35):
Yeah? Please like that?
Speaker 3 (46:37):
Just randomly, I would like to shout out my beloved
friend Marion, who I know listens to this program him
Marian
It Could Happen Here News
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Robert Evans
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