Amicus Curiae Brief — DeRay Mckesson, Petitioner v. John Doe

No. 19-1108

In The

DERAY MCKESSON,

v.

JOHN DOE,

Petitioner,

Respondent.

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Fifth Circuit

BRIEF OF FIRST AMENDMENT SCHOLARS AS

AMICI CURIAE IN SUPPORT OF PETITIONER

Tabatha Abu El-Haj

Thomas R. Kline School

of Law, Drexel University

3320 Market Street

Philadelphia, PA 19104

Timothy Zick

William & Mary

Law School

613 South Henry Street

Williamsburg, VA 23185

Hyland Hunt

Counsel of Record

Ruthanne M. Deutsch

DEUTSCH HUNT PLLC

300 New Jersey Ave. NW

Suite 900

Washington, DC 20001

(202) 868-6915

hhunt@deutschhunt.com

TABLE OF CONTENTS

INTEREST OF AMICI CURIAE ................................ 1

INTRODUCTION

AND

SUMMARY

OF

ARGUMENT ......................................................... 2

ARGUMENT ................................................................ 4

I.

The Fifth Circuit’s Crabbed View Of The First

Amendment Upends Centuries-Old Decisions

Protecting Peaceful Participants At Public

Assemblies. ............................................................ 4

A. The Right to Peaceable Assembly Has Long

Been Understood to Protect Participation in

Even Unruly Assemblies, Absent Significant

Violence. ............................................................ 5

B. State Court Common Law Decisions Confirm

That Unruly Assemblies, Including Those

Engaged in Illegal Activity, Were Considered

Peaceable in the Absence of a Conspiracy to

Commit Violence. .............................................. 8

II. The Fifth Circuit’s Rule Virtually Guarantees

Tort Liability for Protest Organizers, Stifling

Critically Important Political Dissent. .............. 16

A. The Fifth Circuit’s Negligence Theory

Threatens to Transform Every Minor

“Unlawful” Act into a Potentially Ruinous Civil

Lawsuit............................................................ 17

B. Normal Tort Principles Provide No Limiting

Principle in the Protest Context, Dramatically

Stifling Dissent. .............................................. 20

CONCLUSION ......................................................... 25

APPENDIX

(i)

ii

TABLE OF AUTHORITIES

CASES

Anderson v. City of Wellington,

19 P. 719 (Kan. 1888) ..................................... 14, 15

Bridges v. California,

314 U.S. 252 (1941) ................................................ 6

Carmichael v. Allen,

267 F. Supp. 985 (N.D. Ga. 1967) ........................ 13

Citizens for Peace in Space v. City of Colo. Springs,

477 F.3d 1212 (10th Cir. 2007) ............................ 18

Commonwealth v. Kahn,

176 A. 242 (Pa. Super. Ct. 1935).......................... 10

Cox v. Louisiana,

379 U.S. 536 (1965) .............................................. 12

Edwards v. South Carolina,

372 U.S. 229 (1963) .............................................. 12

FEC v. Wis. Right to Life, Inc.,

551 U.S. 449 (2007) .............................................. 24

Forsyth Cty. v. Nationalist Movement,

505 U.S. 123 (1992) .............................................. 23

Frazee’s Case,

30 N.W. 72 (Mich. 1886)....................................... 15

Garcia v. Bloomberg,

865 F. Supp. 2d 478 (S.D.N.Y 2012) .................... 24

iii

Gitlow v. New York,

268 U.S. 652 (1925) ............................................... 9

Hague v. CIO,

307 U.S. 496 (1939) ................................................ 7

NAACP v. Claiborne Hardware Co.,

458 U.S. 886 (1982) ...................................... passim

NAACP v. Overstreet,

384 U.S. 118 (1966) .............................................. 24

New York Times Co. v. Sullivan,

376 U.S. 254 (1964) .............................................. 22

Nieves v. Bartlett,

139 S. Ct. 1715 (2019) .......................................... 20

Powers v. City of Ferguson,

229 F. Supp. 3d 894 (E.D. Mo. 2017) ................... 18

Rollins v. Shannons,

292 F. Supp. 580 (E.D. Mo. 1968) .................. 11, 12

Schlamp v. State,

891 A.2d 327 (Md. 2006) ...................................... 13

Taylor v. State,

68 S.E. 945 (Ga. Ct. App. 1910) ..................... 10, 11

Trotter v. City of Chi.,

33 Ill. App. 206 (Ill. App. Ct. 1889).................. 3, 16

iv

United States v. Matthews,

419 F.2d 1177 (D.C. Cir. 1969) ............................ 13

Vodak v. City of Chi.,

639 F.3d 738 (7th Cir. 2011) ................................ 18

CONSTITUTIONAL PROVISIONS

U.S. CONST. amend. I .................................................. 6

OTHER AUTHORITIES

Tabatha Abu El-Haj, Defining Peaceably: Policing the

Line Between Constitutionally Protected Protest

and Unlawful Assembly,

80 MO. L. REV. 961 (2015) .................................... 21

Tabatha Abu El-Haj, The Neglected Right of

Assembly,

56 UCLA L. REV. 543 (2009) .............. 11, 13, 14, 17

John Inazu, Unlawful Assembly As Social Control,

64 UCLA L. REV. 2 (2017) .................................... 10

John D. McCarthy & Clark McPhail, Places of

Protest: The Public Forum in Principle and

Practice,

11 MOBILIZATION: AN INT'L Q. 229 (2006) ............ 22

Michael McConnell, Freedom by Association,

FIRST THINGS (Aug. 2012) ..................................... 7

v

JOHN PHILLIP REID, IN A DEFIANT STANCE: THE

CONDITIONS OF LAW IN MASSACHUSETTS BAY, THE

IRISH COMPARISON, AND THE COMING OF THE

AMERICAN REVOLUTION (1977) ............................... 6

Riots, Routs, and Unlawful Assemblies,

3 AM. L. MAG. 350 (1844) ................................... 7, 9

Arielle W. Tolman & David M. Shapiro, From City

Council to the Streets: Protesting Police

Misconduct after Lozman v. City of Riviera Beach,

13 CHARLESTON L. REV. 49 (2018) ....................... 20

JOHN RANDOLPH TUCKER, THE CONSTITUTION OF THE

UNITED STATES (Henry St. George Tucker, ed.,

1899) ...................................................................... 8

FRANCIS WHARTON, A TREATISE ON THE CRIMINAL LAW

OF THE UNITED STATES

(3d ed. 1855) ..................................... 7, 8, 10, 11, 12

LEON WHIPPLE, OUR ANCIENT LIBERTIES: THE STORY

OF THE ORIGIN AND MEANING OF CIVIL AND

RELIGIOUS LIBERTY IN THE UNITED STATES

(1927) ...................................................................... 7

JOHN WILDER MAY, THE LAW OF CRIMES (Harry

Augustus Bigelow, ed., 3d ed. 1905) .................... 11

TIMOTHY ZICK, SPEECH OUT OF DOORS (2009) ........... 18

Timothy Zick, Speech and Spatial Tactics,

84 TEX. L. REV. 581 (2006)......................................... 17

INTEREST OF AMICI CURIAE1

Amici are seven nationally recognized professors

and scholars of the First Amendment. Each has

authored multiple publications on the freedoms of

speech, association, and peaceable assembly and the

history of those freedoms. Their scholarship and

experience lead them to conclude that it is vital for the

Court to intervene now to reject the Fifth Circuit’s

crabbed interpretation of the right of peaceable

assembly and to prevent chilling constitutionally

protected activities.

As the Petition explains, the Fifth Circuit flatly

contradicted this Court’s precedents when it green-lit

tort damages against a protest organizer simply

because a protest participant—on his own accord and

absent direction from the protest organizer—

committed a violent act. As amici can attest, the

decision also represents a sharp break with the robust

protection of political assemblies and broad conception

of “peaceable” that prevailed for centuries, going back

to the early Republic. Given the modern regulatory

environment for protests, absent review, the Fifth

Circuit’s rule will inexorably stifle peaceful political

dissent that has, until now, fallen squarely within the

core of the First Amendment’s protection. The

Appendix lists all amici.

1 Counsel of record for all parties received timely advance

notice of intent to file and consented to the filing of this brief. S.

Ct. R. 37(2)(a). No counsel for any party authored this brief in

whole or in part, and no person or entity other than amici curiae

or their counsel made a monetary contribution intended to fund

the brief’s preparation or submission.

(1)

2

INTRODUCTION

AND SUMMARY OF ARGUMENT

The Fifth Circuit transformed tort liability into a

truncheon for opponents to suppress political activism

across the ideological spectrum, from gun rights

demonstrators to Black Lives Matter protesters. Its

holding that the First Amendment does not shield a

public speaker at a political protest from a civil

negligence claim where a third party causes physical

harm—even though the third party’s unlawful act was

not directed, authorized, or ratified by that speaker—

vitiates the promise of the First Amendment. In the

American constitutional tradition, while protesters

can be subject to reasonable time, place, and manner

restrictions, only violence, whether by an individual or

by several in concert, nullifies the protections of the

First Amendment.

The constitutional significance of the line

between violence and nonviolence is cemented in the

text of the Constitution, which protects the right to

“peaceably” assemble. State supreme court decisions

applying the common law crimes of riot and unlawful

assembly—crimes that required significant levels of

violence—exemplify

the

broad

constitutional

protection for street protests, with courts refusing to

sanction participants in public assemblies unless they

personally engaged in violence that threatened the

peace. Nineteenth-century state courts routinely

displayed great tolerance for disruptive crowds,

providing broad constitutional cover for people

gathered outdoors and on the public streets, so long as

they did not engage in violence. As an 1889 Illinois

appellate court emphasized, “[u]nder a popular

3

government like ours, the law allows great latitude to

public demonstrations, whether religious, political or

social, and it is against the genius of our institutions

to resort to repressive measures . . . to encroach on

[such] fundamental rights.” Trotter v. City of Chi., 33

Ill. App. 206, 208 (Ill. App. Ct. 1889) (striking down as

unlawful one of the first municipal permit

requirements for street parades), aff’d, 26 N.E. 359

(Ill. 1891).

DeRay McKesson, like the advocates for racial

equality in the mid-twentieth century, “sought to

change a social order . . . [t]hrough speech, assembly,

and petition—rather than through riot or revolution.”

NAACP v. Claiborne Hardware Co., 458 U.S. 886, 912

(1982). Whether one shares his political views, his

choice to do so is as American as the Constitution

itself. To ensure the continued vitality of the First

Amendment, this Court should grant certiorari and

reaffirm that absent evidence “that the group itself

possessed unlawful goals and that the individual held

a specific intent to further those illegal aims,” id. at

920, the First Amendment precludes the imposition of

“[c]ivil liability . . . merely because an individual

belonged to a group, some members of which

committed acts of violence.” Id.

The Fifth Circuit’s departure from this Court’s

precedents—as well as centuries of common law and

constitutional tradition—creates a grave and urgent

risk to political dissent. Hinging its novel theory of

civil liability on a protest organizer committing an

unlawful act provides no limiting principle in the

modern era when protests are meticulously regulated.

The sheer volume of regulation virtually guarantees

4

that today any large gathering will engage in some

technical violation of this or that time, place, or

manner restriction. Nor do ordinary tort principles

regarding the foreseeability of harm provide

meaningful controls on the imposition of liability for

other people’s independent, unprompted violent acts.

It would be the rare case where a protest organizer—

especially of a large, controversial protest—could

reasonably expect that no one in a crowd of thousands

would engage in some violent act. The Fifth Circuit’s

rule thus significantly raises the costs of dissent and

threatens to shut down critically important political

speech. The Court should intervene to avoid the

wholesale stifling of public protest.

ARGUMENT

I.

The Fifth Circuit’s Crabbed View Of The

First Amendment Upends Centuries-Old

Decisions

Protecting

Peaceful

Participants At Public Assemblies.

A bedrock principle, dating back to the Founding,

is that the right to peaceable assembly protects a

participant at a public assembly from being held

responsible for other protesters’ violence unless that

participant either also commits a violent act or incites

another to commit a violent act—even if that

participant engages in acts that are disruptive or

unlawful. By refusing to provide First Amendment

protection to a protest leader because “he ‘negligently’

led a protest that carried the risk of potential violence

or urged the blocking of a road,” Pet. App. 51a (Willett,

J., dissenting in relevant part), the Fifth Circuit defied

that principle.

5

There is no question that the individual who

injured Police Officer Doe stepped outside the

boundaries of constitutional protection by engaging in

violence. But until now, centuries of precedent would

have shielded protest organizer McKesson’s

purportedly illegal yet unquestionably nonviolent

conduct from punishment or civil damages for

another’s separate act of violence. Impassioned

crowds, angry at perceived abuses of governmental

power, are frequently disruptive, yet they have

consistently received constitutional protection as

peaceable assemblies, even when the protest

transgresses some municipal restriction. Properly

understood, the Fifth Circuit’s decision is a sharp

departure from both this Court’s precedent and the

Founding-era understanding of the right of peaceable

assembly, as reflected in the Constitution’s text and

state court decisions from the nineteenth century

onward.

A.

The Right to Peaceable Assembly

Has Long Been Understood to

Protect Participation in Even

Unruly

Assemblies,

Absent

Significant Violence.

Discordant “[p]olitical uprisings, from peaceful

picketing to lawless riots, have marked our history

from the beginning—indeed, from before the

beginning.” Pet. App. 52a (Willett, J., dissenting).

When “[t]he Sons of Liberty . . . dump[ed] tea into

Boston Harbor almost two centuries [ago],” id., the

Americans saw the act as falling within their protected

liberties, despite their trespass and defacement of

6

private property. See generally JOHN PHILLIP REID, IN

A DEFIANT STANCE: THE CONDITIONS OF LAW IN

MASSACHUSETTS BAY, THE IRISH COMPARISON, AND THE

COMING OF THE AMERICAN REVOLUTION 90 (1977)

(noting that during the Revolutionary period in

Boston, the Riot Act was never read by magistrates,

who understood the political aims of the revolutionary

crowds).

Given the historical importance of public

protests, the First Amendment singles out this

particular form of expressive conduct for explicit

constitutional protection. Moreover, its text draws a

sharp divide between violent and nonviolent

assemblies by providing for “the right of the people

peaceably to assemble,” U.S. CONST. amend. I; see

Claiborne Hardware, 458 U.S. at 916 (“The First

Amendment does not protect violence.”). That right

had a well-understood meaning of excluding violent

acts, but otherwise covering unruly and unlawful acts.

The First Amendment sought generally to

expand the customary constitutional rights of British

citizens to freedom of expression and conscience.

Bridges v. California, 314 U.S. 252, 265 (1941) (“No

purpose in ratifying the Bill of Rights was clearer than

that of securing for the people of the United States

much greater freedom of religion, expression,

assembly, and petition than the people of Great

Britain had ever enjoyed.”). And the right to peaceably

assemble was intended to be broader than the British

customary right in three important respects.

First, the First Amendment ensured that the

right of peaceable assembly included a right to “use . . .

the streets and public places” for “purposes of assembly

7

. . . and discussing public questions,” as “a part of the

privileges, immunities, rights, and liberties of

citizens.” Hague v. CIO, 307 U.S. 496, 515–16 (1939)

(Roberts, J., concurring). This “declaration of a

freedom of assembly was a break from [English]

history,” because in Britain, “the people were not free

to assemble in the streets and parks without official

permission.” Michael McConnell, Freedom by

Association,

FIRST

THINGS

(Aug.

2012),

https://tinyurl.com/w3ebodt.

Second, in “its original meaning” the term

“peaceable” was not “to be confused with ‘legal’ or

‘permissible.’” LEON WHIPPLE, OUR ANCIENT

LIBERTIES: THE STORY OF THE ORIGIN AND MEANING OF

CIVIL AND RELIGIOUS LIBERTY IN THE UNITED STATES

104 (1927). Merely illegal acts did not necessarily

deprive one of constitutional protection. Instead,

violent acts were the constitutional deal-breaker.

Third, the bar for the requisite level of violence to

render an assembly non-peaceable was high. The First

Amendment’s shield disappeared only when an

assembly had descended into a “riot” or “unlawful

assembly,” common law crimes that, as explained

below, were narrowly construed by American courts

and generally applied only to personally violent

participants. 2 See Riots, Routs, and Unlawful

2 Historically, the only significant departure from this rule

occurred in cases where an individual, who had heretofore

undertaken no violence, refused to disperse after an order to

disperse under a Riot Act had been read. See FRANCIS WHARTON,

A TREATISE ON THE CRIMINAL LAW OF THE UNITED STATES 827 (3d

ed. 1855) (noting that after the command to disperse an unlawful

8

Assemblies, 3 AM. L. MAG. 350, 357 (1844) (arguing

that American law preserved the common law of riot

and unlawful assembly because gatherings “which

look to violence and not to reason and the influence of

a strong expression of public opinion, do not fall within

the protection of the constitutional guarantees”). As

summarized in an 1899 treatise, although “the right of

the people peaceably to assemble . . . does not prevent

interference with the riotous assemblages of the

people; where there is no riotous conduct the

government cannot interfere.” 2 JOHN RANDOLPH

TUCKER, THE CONSTITUTION OF THE UNITED STATES

§ 326 (Henry St. George Tucker ed., 1899) (emphasis

added).

B.

State Court Common Law Decisions

Confirm That Unruly Assemblies,

Including Those Engaged in Illegal

Activity,

Were

Considered

Peaceable in the Absence of a

Conspiracy to Commit Violence.

Early American courts are notorious for having

routinely held individuals criminally and civilly

responsible for their libelous, indecent, obscene, and

blasphemous speech. But in stark contrast to their

narrow intuitions about individual free speech, these

same courts routinely vindicated an expansive

assembly, “[t]hose who continue looking on while the active

rioters are resisting public authorities . . . ; who refuse to join with

authorities . . . are just as much rioters as those most active in

the work of violence”); see also id. at 822–23, 826–27.

9

conception of the people’s right of assembly, especially

for political purposes.

Nineteenth-century state court decisions before

the incorporation of the First Amendment against the

states, see Gitlow v. New York, 268 U.S. 652, 666

(1925), reinforce that the relevant line for purposes of

constitutional protection of street crowds is violence,

not unlawfulness. The widespread refusal by

nineteenth-century state courts to countenance

advance-approval requirements for protests confirms

that the right of peaceable assembly was understood

to sweep broadly, covering unruly and even unlawful

crowds except for the few participants who personally

engaged in violence.3

1. In the early years, constitutional protection

was understood to extend to all assemblies that did not

fit the common law crimes of riot and unlawful

assembly, crimes that early American courts

construed narrowly. See Riots, Routs, and Unlawful

Assemblies, 3 AM. L. MAG. 350, 354 (1844) (American

“courts of justice will require the characters of an

unlawful assembly to be more distinctly marked” as

compared to England).

3 The

Court has since accepted the constitutionality of

reasonable time, place, and manner restrictions. Nineteenthcentury cities did not impose such restrictions on activities

associated with the right of assembly, including parades,

marches, and outdoor public meetings, however, and when such

restrictions were first imposed, courts generally rejected them.

See Tabatha Abu El-Haj, The Neglected Right of Assembly, 56

UCLA L. REV. 543, 545 (2009).

10

While English common law authorities divided on

the scope and breadth of these crimes, 4 American

courts, both before and after incorporation, narrowly

construed the crimes of unlawful assembly and riot,

elevating the importance of proof of imminent

violence. See, e.g., Taylor v. State, 68 S.E. 945, 946 (Ga.

Ct. App. 1910) (Georgia statute was an “extension of

the offense of riot . . . beyond its common-law

definition, so that the commission . . . of a lawful act

in a violent and tumultuous manner is made a crime”)

(emphasis added). These state courts interpreted the

common law crime of riot as applying to either a lawful

or unlawful act so long as the act was undertaken

violently. See Commonwealth v. Kahn, 176 A. 242, 243

(Pa. Super. Ct. 1935) (construing the crime of riot as

“a tumultuous disturbance of the peace by three or

more persons assembled and acting with a common

intent; either in executing a lawful private enterprise

in a violent and turbulent manner, to the terror of the

people, or in executing an unlawful enterprise in a

violent and turbulent manner.”) (emphasis added); see

also FRANCIS WHARTON, A TREATISE ON THE CRIMINAL

LAW OF THE UNITED STATES 825 (3d ed. 1855)

(clarifying that “[a] riot is a tumultuous disturbance of

the public peace by three persons or more assembling

together . . . with an intent mutually to assist one

another against any who shall oppose them . . . and

afterwards executing the same in a violent and

4 See generally John Inazu, Unlawful Assembly As Social

Control, 64 UCLA L. REV. 2, 10-11 (2017) (noting that William

Blackstone embraced a narrower conception that required

violence while William Hawkins appeared to countenance

nonviolent lawbreaking as falling withing the crime).

11

turbulent manner, to the terror of the people, whether

the act intended is lawful or unlawful”) (emphasis

added).

Violence to persons or property was an

irreducible minimum requirement of the offense of

riot. See, e.g., Taylor, 68 S.E. at 946 (holding crime of

riot extended only to jointly executed lawful acts

“involving violence, and in the execution of which

violence was actually employed”); JOHN WILDER MAY,

THE LAW OF CRIMES §§ 165–166 (Harry Augustus

Bigelow, ed., 3d ed. 1905) (emphasizing that the crime

turned on the element of violence, not lawfulness, and

that “[t]he Violence Necessary to constitute a riot need

not actually be inflicted upon any person” so long as

the threat of violence is present through weaponry or

context). As an 1855 treatise writer elaborated:

It must be shown that the assembling was

accompanied with . . . circumstances, either of

actual force or violence, or at least of an apparent

tendency thereto, as were calculated to inspire

people with terror, such as being armed, using

threatening speeches, turbulent gestures, or the

like. If an assembly of persons be not accompanied

with such circumstances as these, it can never be

deemed a riot, however unlawful their intent, or

however unlawful the acts which they commit.

WHARTON, supra, at 825–826 (emphasis added).

The common law crime of unlawful assembly

likewise required violence on the part of the

individuals involved. In Rollins v. Shannons, 292 F.

Supp. 580 (E.D. Mo. 1968) (per curiam), vacated and

remanded on other grounds, 401 U.S. 988 (1971), a

federal district court upheld the constitutionality of

12

Missouri’s unlawful assembly statute after finding it

was “basically a codification of the common law offense

of unlawful assembly,” which was “[h]istorically . . . a

lesser included offense in the riot laws.” 292 F. Supp.

at 589. The statute proscribed the assembly of three or

more persons “to do any unlawful act, with force or

violence, against the person or property of another, or

against the peace or to the terror of the people.” Id.

As the Rollins court noted, the “essential fault” of

the breach-of-the-peace statutes held unconstitutional

in Edwards v. South Carolina, 372 U.S. 229 (1963),

and Cox. v. Louisiana, 379 U.S. 536 (1965), was “their

ability to be applied to prohibit peaceful conduct.” 292

F. Supp. at 591. Missouri’s unlawful assembly statute,

by contrast—like the common law of unlawful

assembly—only encompassed acts which violated the

state’s criminal law and which were “intended to be

done with force or violence, thus removing [them] from

the ambit of peaceful conduct protected by the First

Amendment.” Id.; see also Owens v. Commonwealth,

179 S.E.2d 477, 480–81 (Va. 1971) (striking down

Virginia’s

unlawful

assembly

statute

as

“unconstitutionally overbroad” in part because it

rendered any unpermitted assembly an “unlawful

assembly,” while contrasting it to “the common law

definition [that] expressly requires clear and present

danger of violent conduct”); accord WHARTON, supra,

at 825 (“Any tumultuous disturbance of the public

peace by three persons or more” could not be charged

with unlawful assembly where the group had a

“avowed, ostensible, legal or constitutional object”).

The scope of liability for common law riot and

unlawful assembly was limited, moreover, to the

13

specific individuals who actually and intentionally

joined with others to commit violence. See, e.g.,

Carmichael v. Allen, 267 F. Supp. 985, 996 n.10a (N.D.

Ga. 1967) (per curiam) (recognizing that Georgia’s riot

act applied “solely to acts of violence by two or more

persons acting in concert”); Schlamp v. State, 891 A.2d

327, 330–333 (Md. 2006) (reversing conviction for

uncodified crime of riot after an exhaustive analysis of

the requisite level of culpability, as well as violence,

under the common law); United States v. Matthews,

419 F.2d 1177, 1191 (D.C. Cir. 1969) (Skelly Wright,

J., dissenting) (refusing to join a decision upholding

the constitutionality of the District of Columbia’s riot

statute because it “remove[d] any requirement that a

defendant personally engage in violent or tumultuous

conduct,” a significant departure from the common

law).

2. Despite being congested and routinely plagued

by the inconvenience associated with public parades

and processions, nineteenth-century cities did not

require people assembling outdoors to obtain permits

to access the city streets. “As late as 1881, Chicago,

Denver, Detroit, St. Paul, and San Francisco had no

permit requirements for assemblies in their streets.”

Tabatha Abu El-Haj, The Neglected Right of Assembly,

56 UCLA L. REV. 543, 545 (2009). Even New York City,

did not require permits for street processions until

July 7, 1914 or for street meetings until after 1931. Id.

Although reasonable permit requirements are

accepted today as constitutional, when the first permit

requirements for street meetings and parades were

adopted, they met with significant judicial skepticism.

The widespread reluctance of early courts to allow

14

authorities to regulate peaceable crowds in advance

confirms that the American tradition of peaceable

assembly encompassed unruly and even unlawful

public gatherings.

The near universal view, among state courts, was

that these types of ordinances were void. “All but one

of the first state supreme courts asked to review

ordinances that required advance permission to

gather in public places found them void,” the sole

outlier being the Massachusetts Supreme Judicial

Court. Id. at 570.5

Anderson v. City of Wellington, 19 P. 719 (Kan.

1888), is illustrative. The precise legal question before

the Supreme Court of Kansas was whether a

municipal ordinance requiring advance permission to

access public streets for parades was “reasonable, not

inconsistent with the laws of the state, not repugnant

to the fundamental rights, . . . not . . . oppressive, . . .

not . . . partial or unfair, . . . and . . . not [in]

contraven[tion of] common right.” Id. at 721. In

rejecting the reasonableness of the ordinance, the

court stressed how it would “prevent[] a public address

upon any subject being made on the streets[,]” or “an

unusual congregation of people on the streets, under

5 These same courts evidenced no similar skepticism when

they were asked to approve regulations of individual expression

in the streets. Abu El-Haj, supra, at 577 (explaining that

nineteenth-century state courts upheld analogous time, place,

and manner regulations of street music because music did not

directly implicate their understanding of the people’s right to

assemble in public).

15

any circumstances, without permission.” Id. This

would be “an abridgement of the rights of the people”

because it “[took] from the people of a city and the

surrounding country a privilege exercised by them in

every locality throughout the land—to form their

processions and parade the streets with banners,

music, songs, and shouts.” Id. at 721–22.

Equally important, the court rejected the

suggestion that the ordinance could be justified on the

grounds of preserving order, because “the laws upon

the subject of riots, mobs, unlawful assemblies, and

nuisances . . . already afford ample protection to the

public, and ready processes to prohibit, repress and

arrest offenders” who violate those laws. Id. at 722.

Many other nineteenth-century courts agreed.

The Michigan Supreme Court invalidated an

ordinance requiring permission from officials to march

through city streets, rejecting the city’s proffer that

the ordinance was justified by either its authority “to

prevent . . . riots, disturbances, and disorderly

assemblages” or its power “to control, prescribe, and

regulate the manner in which highways, streets, . . .

[and] public grounds . . . [are used] within [the] city.”

Frazee’s Case, 30 N.W. 72, 74 (Mich. 1886). The court

acknowledged the foreseeability that such assemblies

were “capable of perversion to bad uses” and

“sometimes very great dangers.” Id. at 75. Yet it

emphasized that constitutional protection for such

crowds only ceased “[w]hen people assemble in riotous

mobs.” Id.

Likewise, even as an Illinois appellate court

acknowledged that a public gathering “may be so

conducted . . . as to invite a breach of the peace, or to

16

render itself a nuisance”—i.e., in modern tort-speak,

that some protests have a foreseeable risk of negative

consequences—the court emphasized that these are

“exceptional” occurrences, and laws governing riot and

unlawful assembly already provide sufficient

“restraint of law.” Trotter v. City of Chi., 33 Ill. App.

206, 208 (Ill. App. Ct. 1889), aff’d, 26 N.E. 359 (Ill.

1891).

These early cases show how far the Fifth Circuit’s

ruling departs not just from this Court’s precedent,

but from long-established customary constitutional

law—embodied in the First Amendment’s reference to

peaceable assembly—of protecting the right to

assemble while policing only those individuals who

encourage or engage in riotous violence. The Fifth

Circuit’s view that stepping into the street in violation

of Baton Rouge’s municipal laws makes a protest

organizer liable for violence that he did not direct,

incite, or ratify cannot be squared with the First

Amendment and cries out for this Court’s review.

II.

The Fifth Circuit’s Rule Virtually

Guarantees Tort Liability for Protest

Organizers, Stifling Critically Important

Political Dissent.

The Fifth Circuit’s repudiation of the historical

understanding of peaceable assembly poses an

especially daunting threat, given the expanse of

modern protest management regulation. With today’s

detailed time, place, and manner requirements and

open-ended “disturbing the peace”-type misdemeanors

(measures that nineteenth-century courts would not

have countenanced), the Fifth Circuit’s purported

17

limiting principle—premising civil liability for entirely

distinct violent acts by third parties on violations of

unrelated laws—is no limit at all. Hereinafter, any

protest organizer—however careful—will be exposed

to the possibility of tort liability on the grounds of

foreseeability, and will face the certainty of costly

litigation. The Fifth Circuit’s decision, if left standing,

will stifle important speech on matters of public

concern.

A.

The Fifth Circuit’s Negligence

Theory Threatens to Transform

Every Minor “Unlawful” Act into a

Potentially Ruinous Civil Lawsuit.

In contrast to the nineteenth century, when

courts shunned permit requirements for protests and

other public gatherings, modern protest organizers

face a dizzying array of restrictions and limitations on

public speech and assembly. These restrictions consist

of detailed permit schemes, spatial tactics such as

“free speech zones,” various limits on the time, place,

and manner of public protest, and public order

regulations that police enforce with considerable

discretion. See generally Timothy Zick, Speech and

Spatial Tactics, 84 TEX. L. REV. 581 (2006).

Municipalities today typically regulate all public

assemblies before they occur, through detailed permit

requirements. Tabatha Abu El-Haj, The Neglected

Right of Assembly, 56 UCLA L. REV. 543, 548 (2009)

(survey of twenty large American municipalities

reveals

extensive

public-gathering

permit

requirements). Those who wish to assemble to protest

special events such as the Democratic National

18

Convention or meetings of the WTO must also

navigate complicated temporary restrictions. E.g.

Citizens for Peace in Space v. City of Colo. Springs, 477

F.3d 1212 (10th Cir. 2007) (upholding a city’s security

zone around a NATO conference that was “completely

closed to all persons except conference attendees,”

media, hotel employees, and local residents). See

generally TIMOTHY ZICK, SPEECH OUT OF DOORS (2009).

Beyond such time, place, and manner

regulations—generally criminally enforceable in

themselves—local governments use a panoply of

misdemeanor offenses to regulate public crowds. So

even protesters who are exercising their rights in an

unquestionably lawful manner face the risk of being

charged with an array of public order offenses.

Catchall offenses such as “disorderly conduct” or

“breach of the peace” are enforced with considerable

discretion. Even though such charges are routinely

dropped or dismissed by courts, these arrests impact

and chill the exercise of First Amendment rights. See,

e.g., Powers v. City of Ferguson, 229 F. Supp. 3d 894,

897 (E.D. Mo. 2017) (reporting Department of Justice

“found that City of Ferguson police officers frequently

relied on the failure-to-comply ordinance to arrest

individuals without probable cause and to infringe on

or retaliate against free expression”); Vodak v. City of

Chi., 639 F.3d 738, 740, 744 (7th Cir. 2011) (noting

that 900 people swept up in mass arrest were released

without charges).

In this heavily regulated and highly charged

environment, if technical misdemeanor violations

mean a protest organizer “should have known” that a

protest will result in some “confrontation between

19

police and the mass of demonstrators,” Pet. App. 12a,

then it is effectively always reasonably foreseeable

that such a confrontation will occur. Allowing the

victim of a violent act at a protest to recover damages

from the protest organizer based on the allegedly

foreseeable consequences of even minor legal

infractions provides no boundary for tort liability,

forcefully chilling contemporary protest organization

and participation.

The breathtaking sweep of the Fifth Circuit’s

rule, even if limited to criminal acts, can be illustrated

by just a few examples where “criminal” acts could

justify the imposition of civil liability on a gathering’s

organizer for the unconnected, unauthorized acts of

third parties:



Failure to abide by the terms of a protest

permit by, for example, playing music too

loudly;



Refusal to use a designated “free speech

zone”;



Unauthorized use of a street or sidewalk

by protest participants; or



Citation for taking too long to pack up.

Today, “governments . . . regulate our lives finely,

acutely, thoroughly, and exhaustively” and “criminal

laws have grown . . . to cover so much previously

innocent conduct that almost anyone can be arrested

for something. If the state could use these laws not for

their intended purposes but to silence those who voice

unpopular ideas, little would be left of our First

Amendment liberties.” Nieves v. Bartlett, 139 S. Ct.

1715, 1730 (2019) (Gorsuch, J., concurring in part and

20

dissenting in part); see also Arielle W. Tolman & David

M. Shapiro, From City Council to the Streets:

Protesting Police Misconduct after Lozman v. City of

Riviera Beach, 13 CHARLESTON L. REV. 49, 60–66

(2018) (noting breadth of crimes of modern statutory

unlawful assembly, failure to disperse, and disorderly

conduct, like noise ordinances, give police leeway to

stifle public expression, particularly that which is

critical of modern policing). If minor infractions of

municipal laws mean that a peaceful protest organizer

can be subject to damages liability for violent acts that

he did not direct, encourage, or ratify, the right of

peaceable assembly would be shrunk to zero.

B.

Normal Tort Principles Provide No

Limiting Principle in the Protest

Context,

Dramatically

Stifling

Dissent.

The liability regime the Fifth Circuit has created

knows no bounds. Normal tort principles of the

foreseeability of harm essentially guarantee damages

in this context—or at least ruinous litigation—because

it is the rare case where a protest organizer could not

foresee some violence, however discouraged. This

Court has recognized as much. See Claiborne

Hardware, 458 U.S. at 918–19 (noting that nearly

every protest involves both lawful and unlawful

actions). Particularly for protests involving important

matters of public concern—where First Amendment

protection is most urgently needed—there is a higher

likelihood of drawing counter-protesters and a robust

police response, increasing the odds of generating

confrontations at the margins.

21

Despite the absence of a credible allegation that

McKesson “authorized, ratified, or directly threatened

acts of violence,” Pet. App. 41a (Willett, J., dissenting

in relevant part) (quoting Claiborne Hardware, 458

U.S. at 929), or met the threshold of incitement, id. at

42a–44a, the Fifth Circuit held that the First

Amendment did not shield McKesson from damages

for a third party’s acts because he “should have

known” that moving the protest into the street was

“likely to provoke a confrontation between police and

the mass of demonstrators,” id. at 12a (majority

opinion). But this “reasonably foreseeable harm”

standard vitiates First Amendment protection for

street protesters everywhere.

There is almost always a “foreseeable” risk of

violence associated with outdoor street protests, even

those that are predominantly nonviolent. Throughout

American history, “outdoor assemblies [have] exist[ed]

on a continuum from peaceful to disruptive, and . . .

that disruption can range from illegal acts that are

principally inconvenient to violent acts against other

individuals.” Tabatha Abu El-Haj, Defining Peaceably:

Policing the Line Between Constitutionally Protected

Protest and Unlawful Assembly, 80 MO. L. REV. 961,

965 (2015).

The risk is most foreseeable for organizers of

larger, more politically salient demonstrations where

police are more likely to be present. Police not only

enforce regulations (triggering the Fifth Circuit’s

“limit”) but also a larger police presence makes

confrontations between police and protesters (or

counter-protesters) more likely. Foreseeability of

harm often relates as much or more to the protest

22

policing methods than to any act or instruction of the

protest organizer. Accord John D. McCarthy & Clark

McPhail, Places of Protest: The Public Forum in

Principle and Practice, 11 MOBILIZATION 229, 232–34

(2006) (describing police willingness to engage in

escalation at protests through the use of

less᠆than᠆lethal policing tactics). That risk is equally

predictable any time there is reason to believe

“outsiders” or counter-protesters, whose aim is to coopt or disrupt the protest event, will show up. This

scenario has played out at a number of recent protest

events, including the “Unite the Right” rallies in

Charlottesville, Virginia, in 2017.

The Fifth Circuit’s loose approach to civil liability

thus creates nearly endless opportunities for plaintiffs

(including injured counter-protesters seeking to chill

speech on the other side) to sue protest organizers for

money damages resulting from violent actions that the

protest organizers did not direct, incite, or authorize—

acts they likely were unaware of. Such tort liability

raises a host of problems for expressive activity. As the

Court has long recognized, tort liability can

significantly chill constitutionally protected speech.

See Claiborne Hardware, 458 U.S. at 916–17; New

York Times Co. v. Sullivan, 376 U.S. 254, 277 (1964).

Moreover, as Petitioner explains (Pet. at 33), the

unbounded nature of the tort inquiry invites juries to

make decisions based on content bias. And under the

Fifth Circuit’s approach, tort liability effectively—and

impermissibly—shifts responsibility for costs and

harms that protest organizers cannot control to

protest organizers. See Forsyth Cty. v. Nationalist

Movement, 505 U.S. 123, 134–35 (1992) (protesters

23

cannot be charged for the costs created by counterprotesters that voice their opposition, even counterprotesters whose appearance heightens the risk of

violence).

The Fifth Circuit’s expansive theory of tort

liability, if left to stand, will suppress expression by a

diverse array of protesters and protest groups. Prolife, pro-gun, environmental, social justice, and other

protest groups may find themselves defendants in

costly negligence suits, based on the unauthorized and

un-ratified unlawful acts of participants or

counter᠆protesters. Every organizer of a significant

march will face substantial and, in many cases,

crippling civil liability. Organizers of the Women’s

March, the annual protesters of the Court’s decision in

Roe v. Wade, and the youth organizers promoting

sensible gun control would all be at risk. Damages in

such suits would extend beyond personal injury, to any

“foreseeable” property damage or other harm. This

would return us to a time when courts routinely

imposed stifling civil liability judgments on public

protesters. And it would facilitate abuse of negligence

law, including suits aimed at silencing protest

messages and political movements.

The Court should grant certiorari to prevent tort

liability from once again becoming a weapon of

suppression. “The rights of political association are

fragile enough without adding the additional threat of

destruction by lawsuit.” Claiborne Hardware, 458 U.S

at 931–32 (quoting NAACP v. Overstreet, 384 U.S. 118,

122 (1966) (Douglas, J., dissenting from dismissal of

certiorari)).

24

*****

“First Amendment freedoms need breathing

space to survive.” FEC v. Wis. Right to Life, Inc., 551

U.S. 449, 468–69, (2007) (op. of Roberts, C.J.) (quoting

NAACP v. Button, 371 U.S. 415, 433 (1963)). This

includes the freedom of assembly. This nation owes a

“huge debt . . . to its ‘troublemakers.’” Garcia v.

Bloomberg, 865 F. Supp. 2d 478, 482 (S.D.N.Y 2012),

rev’d on other grounds sub nom., Garcia v. Does, 779

F.3d 84 (2d Cir. 2015). “Prudence and respect for the

constitutional rights to free speech and free

association, . . . dictate that the legal system cut all

non-violent protesters a fair amount of slack.” Id.

Permitting nearly universal liability “for the violent

act of a rogue assailant” would “impos[e] ruinous

financial liability against citizens for exercising core

First Amendment freedoms.” Pet. App. 53a (Willett, J.,

dissenting in relevant part). By ignoring the realities

of modern protest in which it is exceptionally easy to

run afoul of some legal regulation, the Fifth Circuit’s

novel theory of negligence chills not only

“troublemakers,” but anyone seeking to take to the

streets to peacefully voice their grievances. This is a

grave error and an unprecedented departure from the

long-standing American tradition of protecting

peaceable assembly.

25

CONCLUSION

The Court should grant the petition for writ of

certiorari.

Respectfully submitted.

Tabatha Abu El-Haj

Hyland Hunt

Thomas R. Kline School of Counsel of Record

Law, Drexel University Ruthanne M. Deutsch

DEUTSCH HUNT PLLC

Timothy Zick

William & Mary

Law School

April 9, 2020

APPENDIX

Tabatha Abu El-Haj, Associate Professor of Law,

Thomas R. Kline School of Law, Drexel University.

Ashutosh Bhagwat, Martin Luther King, Jr. Professor

of Law and the Boochever and Bird Endowed Chair for

the Study and Teaching of Freedom and Equality,

University of California, Davis School of Law.

John Inazu, Sally D. Danforth Distinguished Professor

of Law and Religion, Washington University in St.

Louis School of Law.

Ronald J. Krotoszynski, Jr., John S. Stone Chair,

Director of Faculty Research, and Professor of Law,

University of Alabama School of Law.

Gregory P. Magarian, Thomas and Karole Green

Professor of Law, Washington University in St. Louis

School of Law.

Rodney A. Smolla, Dean and Professor of Law,

Delaware Law School at Widener University.

Timothy Zick, John Marshall Professor of Government

and Citizenship and Cabell Research Professor,

William & Mary Law School.

(1a)