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

No. 23-373

================================================================================================================

In The

Supreme Court of the United States

---------------------------------♦--------------------------------DERAY MCKESSON,

Petitioner,

v.

JOHN DOE,

Respondent.

---------------------------------♦--------------------------------On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Fifth Circuit

---------------------------------♦--------------------------------BRIEF OF THE RUTHERFORD INSTITUTE AS

AMICUS CURIAE SUPPORTING PETITIONER

---------------------------------♦--------------------------------JOHN W. WHITEHEAD

WILLIAM E. WINTERS

THE RUTHERFORD INSTITUTE

109 Deerwood Road

Charlottesville, VA 22911

(434) 978-3888

December 15, 2023

ERIN GLENN BUSBY

Counsel of Record

LISA R. ESKOW

MICHAEL F. STURLEY

UNIVERSITY OF TEXAS

SCHOOL OF LAW

SUPREME COURT CLINIC

727 East Dean Keeton Street

Austin, TX 78705

(713) 966-0409

ebusby@law.utexas.edu

================================================================================================================

COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

i

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES .................................

ii

INTEREST OF AMICUS CURIAE ......................

1

SUMMARY OF THE ARGUMENT .....................

2

ARGUMENT ........................................................

4

SPEECH

FURTHERS

PUBLIC

PROTEST

DISCOURSE AND PROTECTS DEMOCRACY .......

4

A. The

Founders

Believed

Speech

Criticizing The Government Was

Essential To Democracy, And This

Court’s

Jurisprudence

Reaffirms

That Vital Role ....................................

5

B. To Preserve Breathing Space For

Protected Speech, This Court Has

Required A Subjective, Culpable

Mental State Beyond Negligence For

Speech-Related Crimes And Torts ......

7

I.

II.

THE FIFTH CIRCUIT’S NEGLIGENT-PROTEST

TORT COLLAPSES NECESSARY BREATHING

SPACE AND THREATENS TO CHILL SPEECH ...... 12

A. The Negligent-Protest Tort Opens The

Floodgates To Civil Liability When

Movements Seek To Amplify Messages

Through Group Protests ...................... 13

B. Expansive Tort Liability Will Chill Too

Much Protest Speech ............................. 23

CONCLUSION .......................................................

27

ii

TABLE OF AUTHORITIES

Page

CASES

Atwater v. City of Lago Vista,

532 U.S. 318 (2001) .................................................25

Boos v. Barry,

485 U.S. 312 (1988) ...................................................7

Brandenburg v. Ohio,

395 U.S. 444 (1969) (per curiam) ............ 8, 16, 24, 26

City of Houston v. Hill,

482 U.S. 451 (1987) ...................................................7

Connick v. Myers,

461 U.S. 138 (1983) ...................................................5

Counterman v. Colorado,

143 S. Ct. 2106 (2023) ................................. 2, 7-9, 12

Garrison v. Louisiana,

379 U.S. 64 (1964) .....................................................7

Hess v. Indiana,

414 U.S. 105 (1973) (per curiam) .................... 8, 9, 12

Hustler Mag., Inc. v. Falwell,

485 U.S. 46 (1988) ................................... 9, 10, 24, 26

Janus v. Am. Fed’n of State, Cnty., and Mun. Emps.,

138 S. Ct. 2448 (2018) .............................................12

Juhl v. Airington,

936 S.W.2d 640 (Tex. 1996) ....................................25

Madsen v. Women’s Health Ctr., Inc.,

512 U.S. 753 (1994) ........................................... 22-23

McCullen v. Coakley,

573 U.S. 464 (2014) .................................................22

iii

TABLE OF AUTHORITIES—Continued

Page

NAACP v. Claiborne Hardware Co.,

458 U.S. 886 (1982) .............................. 5, 8-12, 16, 24

Nieves v. Bartlett,

139 S. Ct. 1715 (2019) .............................................17

N.Y. Times Co. v. Sullivan,

376 U.S. 254 (1964) ........................5-6, 8-9, 12, 23-26

Snyder v. Phelps,

562 U.S. 443 (2011) ................................. 5, 10, 24, 26

Terminiello v. Chicago,

337 U.S. 1 (1949) .......................................................6

Thornhill v. Alabama,

310 U.S. 88 (1940) .....................................................5

CONSTITUTION AND STATUTES

U.S. CONST. amend. I ............. 1-10, 12, 15-18, 22-23, 26

D.C. CODE § 882 (1911) ...............................................20

GA. CODE ANN. § 40-6-1 ..............................................16

GA. CODE ANN. § 40-6-92 ............................................16

LA. CIV. CODE ANN. art. 2315......................................15

LA. STAT. ANN. § 14:34 ................................................15

LA. STAT. ANN. § 14:97 .....................................15-16, 25

LA. STAT. ANN. § 30:2531(A) .......................................16

LA. STAT. ANN. § 32:216 ..............................................16

MONT. CODE ANN. § 61-8-104 ......................................16

MONT. CODE ANN. § 61-8-503 ......................................16

iv

TABLE OF AUTHORITIES—Continued

Page

OKLA. STAT. tit. 47, § 11-102 .......................................16

OKLA. STAT. tit. 47, § 11-503 .......................................16

OTHER MATERIALS

RAYMOND ARSENAULT, FREEDOM RIDERS: 1961 AND

THE STRUGGLE FOR RACIAL JUSTICE (2006) .......... 18-19

Lorraine Boissoneault, The Original Women’s

March on Washington and the Suffragists Who

Paved the Way, SMITHSONIAN MAG. (Jan. 23, 2017),

https://www.smithsonianmag.com/history/

original-womens-march-washington-andsuffragists-who-paved-way-180961869/ ........ 19-20

Benjamin Franklin, On Freedom of Speech and

the Press, PA. GAZETTE (Nov. 1737), reprinted

in 2 BENJAMIN FRANKLIN ET AL., MEMOIRS OF

BENJAMIN FRANKLIN 431 (1840).................................6

Alfred H. Kelly, Constitutional Liberty and the

Law of Libel: A Historian’s View, 74 AM. HIST.

REV. 429 (1968) ..........................................................9

MARTIN LUTHER KING, JR., Letter from

Birmingham Jail, in WHY WE CAN’T WAIT 76

(1964) .......................................................................13

Mark Kittle, Wisconsin High School Threatens

Students with Truancy and Fines for

Protesting Mask Rules, THE FEDERALIST (May

14, 2021), https://thefederalist.com/2021/05/14/

wisconsin-high-school-threatens-students-withtruancy-and-fines-for-protesting-mask-rules/ ........21

v

TABLE OF AUTHORITIES—Continued

Page

James Madison, Virginia Report of 1799,

reprinted in THE VIRGINIA REPORT OF 17991800, TOUCHING THE ALIEN AND SEDITION LAWS

189 (Leonard W. Levy ed., Da Capo Press

1970) (1850) ........................................................... 5-6

Melinda Meza, 5 Stockton High School Students

Arrested During Protests, KCRA 3 (Feb. 23,

2018), https://www.kcra.com/article/5-stocktonhigh-school-students-arrested-during-protests/

18705070 .................................................................21

Tasnim Motala, “Foreseeable Violence” & Black

Lives Matter: How Mckesson Can Stifle a

Movement, 73 STAN. L. REV. ONLINE 61 (2020) ......18

Alexandra Natapoff, Misdemeanors, 85 S. CAL.

L. REV. 1313 (2012) .................................................17

Nick Robinson & Elly Page, Protecting Dissent:

The Freedom of Peaceful Assembly, Civil

Disobedience, and Partial First Amendment

Protection, 107 CORNELL L. REV. 229 (2021) ..........17

Christopher W. Schmidt, Divided by Law: The

Sit-ins and the Role of the Courts in the Civil

Rights Movement, 33 LAW & HIST. REV. 93

(2015) .......................................................................14

Jason Scronic, Take Your Seats: A Student’s

Ability to Protest Immigration Reform at

Odds with State Truancy and Compulsory

Education Laws, 2 FLA. A&M U. L. REV. 185

(2007) .......................................................................21

vi

TABLE OF AUTHORITIES—Continued

Page

Somini Sengupta, Protesting Climate Change,

Young People Take to Streets in a Global

Strike, N.Y. TIMES (Sept. 21, 2019),

https://www.nytimes.com/2019/09/20/climate/

global-climate-strike-html ......................................21

Liam Stack, A Brief History of Deadly Attacks on

Abortion Providers, N.Y. TIMES (Nov. 29, 2015),

https://www.nytimes.com/interactive/2015/11/

29/us/30abortion-clinic-violence.html ....................23

Alan Taylor, The 1913 Women’s Suffrage

Parade, ATLANTIC (Mar. 1, 2013), https://www.

theatlantic.com/photo/2013/03/100-years-agothe-1913-womens-suffrage-parade/100465/ ...........20

Timothy Zick, The Costs of Dissent: Protests and

Civil Liabilities, 89 GEO. WASH. L. REV. 233

(2021) ................................................................. 18-19

1

INTEREST OF AMICUS CURIAE1

Amicus The Rutherford Institute, a nonprofit

civil-liberties organization, is committed to protecting

the constitutional freedoms of every American and

the fundamental human rights of all people. The

Rutherford Institute advocates for protection of civil

liberties and human rights through pro bono legal

representation and public education on a wide

spectrum of issues affecting individual freedom in

the United States. In particular, The Rutherford

Institute advocates against government infringement

of citizens’ rights to freely express themselves.

To ensure the vitality of the First Amendment,

The Rutherford Institute urges the Court to grant the

petition and reverse the Fifth Circuit, reaffirming that

protest organizers cannot be sued for third-party

actions that cause injuries during a protest unless

allegations satisfy the stringent limitations on liability

this Court requires for speech-related torts and crimes

like incitement.

---------------------------------♦---------------------------------

1

Pursuant to Rule 37.2, counsel for amicus provided notice

to all parties of its intention to file this brief and did so at least

ten days before its due date. Pursuant to Rule 37.6, amicus

affirms that no counsel for a party authored this brief in whole or

in part and that no person other than amicus and its counsel

made a monetary contribution intended to fund the preparation

or submission of this brief.

2

SUMMARY OF THE ARGUMENT

Protest speech has shaped American democracy

throughout the Nation’s history. And to preserve the

“breathing space” required to ensure freedom of

speech, this Court has placed stringent limitations on

criminal and civil laws that directly restrict or

indirectly chill speech on matters of public concern—

especially speech that criticizes the government.

The Fifth Circuit’s negligent-protest tort strikes

at the core of protected speech, yet it includes none of

the special protections this Court’s First Amendment

jurisprudence requires.

See, e.g., Counterman v.

Colorado, 143 S. Ct. 2106, 2113-17, 2117 n.5 (2023)

(surveying

subjective-mental-state

requirements

imposed by this Court to ensure that speech-related

crimes and torts do not infringe First Amendment

protections). Instead, it creates vast exposure to civil

liability in circumstances that will be present whenever

protesters collectively occupy public spaces—and it

does so based on ordinary negligence without requiring

any showing that a protest organizer subjectively and

culpably disregarded the risk of harm from speech that

was “‘intended’ (not just likely) to produce imminent

disorder.” Id. at 2115 (citation omitted). The First

Amendment forbids that result.

The Fifth Circuit’s negligent-protest formulation

does not hinge on any allegation that petitioner was

violent or even advocated violence, but focuses instead

on the foreseeability of a third party’s violent conduct.

Pet. App. 26a. It also rests heavily on the foreseeability

3

of a police response to the protest petitioner organized,

id. at 9a, 16a—a routine occurrence because protests

often rely on unlawful conduct to amplify messages.

See, e.g., id. at 7a (describing petitioner’s breach of

duty as occurring by “organizing the protest in

such a manner where it was reasonably foreseeable

that a violent confrontation with police would result,”

i.e., “was reasonably foreseeable for police to respond

and violence to ensue”). The tort therefore imperils

civil disobedience, a hallmark of historical and

contemporary protests that violate unjust laws to call

attention to such laws’ injustice.

In endorsing the theory that petitioner could be

civilly liable for a crime committed by a third party

during a protest based on negligence principles instead

of the heightened First Amendment safeguards for

protected speech, the Fifth Circuit focused on

petitioner’s plan to have the protest block a highway:

a strategy to amplify the protest’s message and a

violation of law likely to attract a police response. See,

e.g., id. at 9a, 16a. Petitioner certainly could be

punished for blocking the highway, but punishing him

for an unknown and unencouraged third party’s

assault on an officer is an entirely different matter.

The Fifth Circuit’s “analytical lever—‘unlawful

conduct,’” id. at 58a (Willett, J., concurring in part and

dissenting in part), and police-foreseeability approach

mean the tort will loom over almost any group protest

on a matter of heated public debate, and it will

threaten to chill speakers across the political

spectrum. This Court’s intervention is essential to

4

ensure that protest speech retains the full protection

of the First Amendment.

---------------------------------♦---------------------------------

ARGUMENT

I.

PROTEST SPEECH FURTHERS PUBLIC DISCOURSE

AND PROTECTS DEMOCRACY.

Speech protesting or criticizing the government

has played a vital role throughout the Nation’s history.

The Founders believed that advocacy for political and

social change was essential to a free and fair

democracy in which power flows from the people to the

government. And this Court has emphasized that the

protection of speech—even speech that is offensive or

advocates lawbreaking—is central to democratic

government.

To further those ends, this Court has created

special rules to ensure that protected speech is given

breathing space and is not chilled by the threat of

excessive liability. From the definitions of incitement

and true threats, to the application of defamation law,

to the permissible grounds for finding malicious

interference with business, this Court’s precedent

requires subjective, culpable mental states that clearly

limit both criminal and civil laws that punish speech.

The same limiting principle should be applied to any

tort that threatens public discourse—particularly one

with the far-reaching potential of the Fifth Circuit’s

negligent-protest tort.

5

A. The

Founders

Believed

Speech

Criticizing The Government Was

Essential To Democracy, And This

Court’s Jurisprudence Reaffirms That

Vital Role.

Protest speech—and particularly speech critical of

the government—lies at the core of First Amendment

protection. Indeed, “[t]he First Amendment reflects ‘a

profound national commitment to the principle that

debate on public issues should be uninhibited, robust,

and wide-open.’” Snyder v. Phelps, 562 U.S. 443, 452

(2011) (quoting N.Y. Times Co. v. Sullivan, 376 U.S. 254,

270 (1964)). Freedom of speech is “essential to free

government” because its abridgment would “impair[ ]

those opportunities for public education that are

essential to effective exercise of the power of correcting

error through the processes of popular government.”

Thornhill v. Alabama, 310 U.S. 88, 95 (1940). And this

Court has “frequently reaffirmed that speech on public

issues occupies the ‘highest rung of the heirarchy [sic]

of First Amendment values,’ and is entitled to special

protection.” Connick v. Myers, 461 U.S. 138, 145 (1983)

(quoting NAACP v. Claiborne Hardware Co., 458 U.S.

886, 913 (1982)).

The Founders conceptualized government power

as derived solely from the people. As James Madison

wrote, popular sovereignty means the validity of

government actions ultimately depends on the

“temperate consideration and candid judgment of the

American public.” James Madison, Virginia Report of

1799, reprinted in THE VIRGINIA REPORT OF 1799-1800,

6

TOUCHING THE ALIEN AND SEDITION LAWS 189, 196

(Leonard W. Levy ed., Da Capo Press 1970) (1850).

That principle of popular sovereignty thus requires—

and the First Amendment at its core protects—the

right of the people to speak openly against the

government.

Benjamin Franklin agreed, noting that it is

necessary to vest the right to free speech with the

people because “[r]epublics and limited monarchies

derive their strength and vigour from a popular

examination into the actions of the magistrates.”

Benjamin Franklin, On Freedom of Speech and the

Press, PA. GAZETTE (Nov. 1737), reprinted in 2 BENJAMIN

FRANKLIN ET AL., MEMOIRS OF BENJAMIN FRANKLIN 431,

431 (1840). Franklin worried that “[a]n evil magistrate

intrusted with power to punish for words, would be

armed with a weapon the most destructive and

terrible.” Id. In short, “[f ]reedom of speech is a

principal pillar of a free government: when this

support is taken away, the constitution of a free society

is dissolved, and tyranny is erected on its ruins.” Id.

It is essential, then, that speech related to public

discourse “be uninhibited, robust, and wide-open,”

even if it includes “vehement, caustic, and sometimes

unpleasantly sharp attacks on government and public

officials.” Sullivan, 376 U.S. at 270. By its very

nature, speech critical of the government “invite[s]

dispute” and “best serve[s] its high purpose when it

induces a condition of unrest, creates dissatisfaction

with conditions as they are, or even stirs people to

anger.” Terminiello v. Chicago, 337 U.S. 1, 4 (1949). As

7

this Court noted in City of Houston v. Hill, “the First

Amendment recognizes, wisely we think, that a certain

amount of expressive disorder not only is inevitable in

a society committed to individual freedom, but must

itself be protected if that freedom would survive.” 482

U.S. 451, 472 (1987).

B. To Preserve Breathing Space For

Protected Speech, This Court Has

Required A Subjective, Culpable

Mental State Beyond Negligence For

Speech-Related Crimes And Torts.

“[S]peech concerning public affairs is more than

self-expression; it is the essence of self-government.”

Garrison v. Louisiana, 379 U.S. 64, 74-75 (1964).

Accordingly, it must be given “breathing space” from

regulation and government-enforced consequences,

even when the speech is unpleasant or unpopular.

Boos v. Barry, 485 U.S. 312, 322 (1988). And to ensure

that breathing space, this Court has required

subjective, culpable mental states beyond negligence

that strictly limit the scope of laws—civil and

criminal—that may restrict or burden speech.

Just last term in Counterman, this Court

reaffirmed the importance of heightened mental

states as a “tool” to “reduce[ ] the prospect of chilling

fully protected expression.” 143 S. Ct. at 2115; id. at

2113-17 (surveying speech-related crimes and torts).

An objective standard like negligence is insufficiently

protective of First Amendment rights, a conclusion

8

that applies to civil laws as surely as it does to

criminal laws. See id. at 2115-17, 2117 n.5. “The test

is not the form in which state power has been applied

but, whatever the form, whether such power has in fact

been exercised.” Sullivan, 376 U.S. at 265. And civil

damages not only involve the use of state power, but

also may be an even greater deterrent than criminal

punishment. In Sullivan, the possible fine for criminal

libel was $500, but the jury awarded $500,000 for civil

defamation. Id. at 256, 277. In Claiborne, a state court

had held defendants liable for a judgment exceeding a

million dollars for tortious interference with business.

458 U.S. at 893. Such crushing potential liability could

certainly dissuade a speaker from undertaking

controversial but important speech.

Civil and criminal laws directly restricting speech

are the most obvious danger to speech protected by the

First Amendment. State restrictions on unprotected

speech are permissible, but only if strictly cabined.

For example, laws that forbid incitement of violence or

other unlawful action—a legitimate exercise of police

power—must be limited to apply only “where such

advocacy is directed to inciting or producing imminent

lawless action and is likely to incite or produce such

action.” Brandenburg v. Ohio, 395 U.S. 444, 447 (1969)

(per curiam). Intent to cause unlawful action at an

“indefinite future time” is not sufficient to impose

liability. Hess v. Indiana, 414 U.S. 105, 108 (1973) (per

curiam). Instead, “the First Amendment precludes

punishment, whether civil or criminal, unless the

speaker’s words were ‘intended’ (not just likely) to

9

produce imminent disorder.” Counterman, 143 S. Ct.

at 2115 (quoting Hess, 414 U.S. at 109).

Similarly, despite the long history of criminal and

civil defamation laws in America, their permissible

scope narrows when the alleged defamation implicates

matters of public concern. See Sullivan, 376 U.S. at

279-82; Alfred H. Kelly, Constitutional Liberty and the

Law of Libel: A Historian’s View, 74 AM. HIST. REV. 429,

429-30 (1968). Because a strict-liability speech tort

would “dampen[ ] the vigor and limit[ ] the variety of

public debate” on matters of public concern, a

heightened scienter standard applies: Plaintiffs must

prove “actual malice”—the speaker’s knowledge or

reckless disregard of a statement’s falsity. Sullivan,

376 U.S. at 279-80. That standard allows some false

statements to go unpunished but is necessary to avoid

chilling vigorous debate on important issues. See id.

at 271-72.

In addition to laws that directly regulate speech,

other torts may sweep speech into actionable conduct.

When that occurs, “the presence of activity protected

by the First Amendment imposes restraints on the

grounds that may give rise to damages liability and

on the persons who may be held accountable for

those damages.” Claiborne, 458 U.S. at 916-17. These

restraints apply to the tort of intentional infliction of

emotional distress, which ordinarily requires a

plaintiff to show that injurious conduct was

“sufficiently ‘outrageous.’” Hustler Mag., Inc. v.

Falwell, 485 U.S. 46, 53 (1988). But if a public figure

brings suit based on a defendant’s speech, the public

10

figure must show actual malice. Id. at 56. As with

defamation, “such a standard is necessary to give

adequate ‘breathing space’ to the freedoms protected

by the First Amendment.” Id.

The limits on imposing liability for intentional

infliction of emotional distress are even tighter if the

action causing harm was a protest on matters of

“public concern at a public place adjacent to a public

street.” Snyder, 562 U.S. at 456. “Time out of

mind[,] public streets and sidewalks have been used

for public assembly and debate,” so a tort cannot

be allowed to effectively prohibit such protest. Id.

(internal quotation marks omitted). Protest speech

can be subject to reasonable time, place, and manner

restrictions, but it cannot give rise to liability for

being “outrageous” or causing emotional distress, even

though that standard applies to non-speech infliction

of emotional distress. Id. at 456-58. Extra limitations

on tort liability are necessary to prevent such laws

from chilling public debate. Id. at 458.

This Court has applied the same reasoning to the

tort of malicious interference with business. In

Claiborne, Charles Evers, Field Secretary of the

NAACP, helped organize and carry out a boycott of

white merchants in Claiborne County, Mississippi, to

protest racial segregation and inequality. 458 U.S. at

898-900. Throughout the protest, Evers addressed

large crowds and made provocative statements,

including a warning that, if the protestors caught

people “going in any of them racist stores, we’re gonna

break your damn neck.” Id. at 902. Although the

11

boycott and protests were generally peaceful, there

were some incidents of violence perpetrated by

protestors against Black residents who did not observe

the boycott. Id. at 903, 905-06. Business owners who

suffered losses from the boycott sued defendants

including Evers and the NAACP, obtaining a large

judgment for malicious interference with business.

Id. at 889-91, 893-94.

Evers’s speech was not incitement because it did

not result in imminent violence—any violence

occurred much later. Id. at 928. Absent direct

incitement, this Court held that Evers could not be

liable for damages from the boycott because “there is

no evidence—apart from the speeches themselves—

that Evers authorized, ratified, or directly threatened

acts of violence.” Id. at 929. “An advocate must be free

to stimulate his audience with spontaneous and

emotional appeals for unity and action in a common

cause,” this Court explained. Id. at 928. “When such

appeals do not incite lawless action, they must be

regarded as protected speech.” Id. And protected

speech is shielded from tort liability as well as from

criminal punishment.

Id. at 916-17, 916 n.51.

Therefore, the malicious-interference-with-business

award based on Evers’s speeches could not stand. Id.

at 921.

The constraints on liability resulting from

speech vary according to the tort and surrounding

circumstances—in some cases requiring malice, in

others incitement of violence, meaning “the speaker’s

words were ‘intended’ (not just likely) to produce

12

imminent disorder.” Counterman, 143 S. Ct. at 2115

(quoting Hess, 414 U.S. at 109); Sullivan, 376 U.S. at

279-80; Claiborne, 458 U.S. at 928-29. All restrictions,

however, share a common purpose: giving breathing

space to speech crucial to self-governance.

II.

THE FIFTH CIRCUIT’S NEGLIGENT-PROTEST

TORT COLLAPSES NECESSARY BREATHING SPACE

AND THREATENS TO CHILL SPEECH.

By increasing the risks faced by leaders whose

speech mobilizes protesters to visibly, audibly, and

often provocatively occupy public spaces, the Fifth

Circuit’s negligent-protest tort threatens to chill

public discourse, as organizers must balance First

Amendment rights to protest against potential

liability for third parties’ torts that organizers did not

encourage, much less commit. That result cannot be

squared with this Court’s recognition that free speech

“is essential to our democratic form of government, and

it furthers the search for truth.” Janus v. Am. Fed’n of

State, Cnty., and Mun. Emps., 138 S. Ct. 2448, 2464

(2018) (citations omitted).

The threat of this new form of civil liability is

certainly grave for the protest leader.

But for

democracy, even graver is the threat that such

individuals will cease to speak in furtherance of

organized protest. Their silence would imperil the

types of vital protests that drove the historical

movements that shaped America into the democracy

it is today and that continue to fuel contemporary

13

movements. The negligent-protest tort therefore

inflicts unjustifiable costs not only on protest

organizers, but also on democracy itself.

A. The Negligent-Protest Tort Opens The

Floodgates To Civil Liability When

Movements Seek To Amplify Messages

Through Group Protests.

Two features of the negligent-protest theory of

liability render it insufficiently protective of speech.

First, the Fifth Circuit’s adoption of an objective

negligence standard marks a dramatic departure from

this Court’s longstanding insistence on subjective,

culpable mental states for speech-related crimes and

torts. See supra Part I.B. Second, the Fifth Circuit’s

“analytical lever” for foreseeability of a third-party

crime—“unlawful conduct” likely to elicit a police

response and heighten the risk of violence2—will be

the norm because protests, by nature, often involve

unlawful conduct. Acts of civil disobedience have been

a hallmark of many protest movements and may

include organized resistance to the very laws the

protesters challenge. See, e.g., MARTIN LUTHER KING,

JR., Letter From Birmingham Jail, in WHY WE CAN’T

WAIT 76, 82 (1964) (“[T]here are two types of laws: just

and unjust . . . . I would agree with Saint Augustine

that ‘an unjust law is no law at all.’”). And even when

2

See Pet. App. 58a (Willett, J., concurring in part and

dissenting in part). Moreover, any organizational choice alleged

to be “unsafe,” id. at 26a (majority), could trigger liability for

third-party violence, id. at 17a.

14

protesters are not directly breaking the laws they

protest, they frequently gather, march, or otherwise

occupy public spaces in ways that not only garner

attention for the protest but also violate state or local

laws.

Regardless of form, protests historically have

relied on organizers to mobilize collective action and

amplify movements’ messages. “Political uprisings,

from peaceful picketing to lawless riots, have marked

our history from the beginning—indeed, from

before the beginning.” Pet. App. 69a-70a (Willett, J.,

concurring in part and dissenting in part). “The Sons

of Liberty were dumping tea into Boston Harbor

almost two centuries before Dr. King’s Selma-toMontgomery march occupied the full width of the

bloodied Edmund Pettus Bridge.” Id. at 70a.

When group protests result in participants’

arrests for their own violations of law while protesting,

that is to be expected. Indeed, arrests can help

expose the injustice that compelled the protest,

thereby promoting real social change. The 1960s

sit-ins organized by groups such as the Student

Nonviolent Coordinating Committee (SNCC), for

example, were credited with desegregating restaurants

in 27 Southern cities within 6 months of the protests

and “transformed the agenda of the national civil

rights debate.” See Christopher W. Schmidt, Divided

by Law: The Sit-ins and the Role of the Courts in the

Civil Rights Movement, 33 LAW & HIST. REV. 93, 97-102

(2015).

15

But what if protest organizers throughout history

faced not only punishment for their own civil

disobedience, but also civil liability for third parties’

torts that the organizers never encouraged or

committed? With that increased threat of civil

liability, some of American history’s most iconic

protest movements—including the Women’s Suffrage

and modern Civil Rights Movements—might have

unfolded differently.

The July 2016 Baton Rouge Black Lives Matter

protest mirrored the form of protests throughout

American history. See Pet. App. 69a-71a (Willett, J.,

concurring in part and dissenting in part). Petitioner

organized and led the event to protest police practices,

blocking a public highway in front of the Baton Rouge

Police Department Headquarters in violation of state

law. LA. STAT. ANN. § 14:97; Pet. App. 4a-5a. During

the protest, an unidentified individual threw a rocklike object at respondent. Pet. App. 5a.

The unidentified rock-thrower could face liability

under Louisiana criminal and civil law. See LA. STAT.

ANN. § 14:34 (aggravated battery); LA. CIV. CODE ANN.

art. 2315 (tort liability). And petitioner, like any

protester, could face liability if he were to commit any

such unlawful acts. But the negligent-protest tort

endorsed by the Fifth Circuit threatens a new and very

different form of liability stemming from petitioner’s

organizing and participating in the protest itself. In

that advocacy context, Judge Willett explained, “[t]he

First Amendment ‘imposes restraints’ on what (and

whom) state tort law may punish.” Pet. App. 43a

16

(Willett, J., concurring in part and dissenting in part)

(quoting Claiborne, 458 U.S. at 916-17). The negligentprotest tort ignores those restraints, threatening the

core of the First Amendment where “the constitutional

guarantees of free speech and free press do not permit

a State to forbid or proscribe advocacy” except in

narrow circumstances that the negligent-protest tort

does not require. See Brandenburg, 395 U.S. at 447; see

also infra Part II.B.

The negligent-protest tort is particularly

dangerous to free speech because it takes very little to

trigger a protest leader’s exposure, given that protests

are inherently disruptive. The ease of invoking the

tort and establishing foreseeability is too likely to chill

organizational choices such as amplifying protest

messages through advocacy of collective action. And a

police response will be even more foreseeable when

organizers use a classic tool of civil disobedience—

unlawful conduct—such as the crime of blocking a

public highway, Pet. App. 2a, 16a, or perhaps even

jaywalking, a misdemeanor in some states.3 See infra

pp. 18-22. In the context of the Baton Rouge Black

Lives Matter protest, for example, state-law violations

beyond directing protesters to block the highway

(LA. STAT. ANN. § 14:97) arguably could have included

allegations that petitioner condoned protesters’

littering (see id. § 30:2531(A)) or urged walking in the

street where a sidewalk was available (id. § 32:216).

And even if limited by a required criminal predicate

3

E.g., GA. CODE ANN. §§ 40-6-1, 40-6-92; MONT. CODE ANN.

§§ 61-8-104, 61-8-503; OKLA. STAT. tit. 47, §§ 11-102, 11-503.

17

act, that bar is far too low, as “criminal laws have

grown so exuberantly . . . that almost anyone can be

arrested for something.” Nieves v. Bartlett, 139 S. Ct.

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

and dissenting in part); see Alexandra Natapoff,

Misdemeanors, 85 S. CAL. L. REV. 1313, 1314-15 (2012)

(estimating ten million misdemeanor cases filed

annually).

If laws can be used “not for their intended

purposes but to silence those who voice unpopular

ideas, little would be left of our First Amendment

liberties, and little would separate us from the

tyrannies of the past or the malignant fiefdoms of our

own age.” Nieves, 139 S. Ct. at 1730 (Gorsuch, J.,

concurring in part and dissenting in part). Indeed, “in

reaction to protest movements, some states have taken

steps to increase penalties” for “historically minor

violations of the law” like trespass and blocking traffic.

Nick Robinson & Elly Page, Protecting Dissent: The

Freedom of Peaceful Assembly, Civil Disobedience, and

Partial First Amendment Protection, 107 CORNELL L.

REV. 229, 244-47 (2021) (documenting increased

penalties as seeming attempts to deter protests and

civil disobedience). As Judge Willett observed, Fifth

Circuit law now suggests that First Amendment

protection for protest leaders is a “phantasm, almost

incapable of real-world effect” because leaders can

be liable “anytime the protest-leader’s conduct is

‘unlawful’ or ‘wrongful.’” Pet. App. 56a (Willett, J.,

concurring in part and dissenting in part). And this

would apply even when the organizer had no

18

awareness of, much less control over, the act that

injured the plaintiff.

The burden of organizers’ responsibility for

potentially staggering adverse judgments, not to

mention increased insurance and litigation costs,

could smother the grassroots organizing and advocacy

that have defined America. See Tasnim Motala,

“Foreseeable Violence” & Black Lives Matter: How

Mckesson Can Stifle a Movement, 73 STAN. L. REV.

ONLINE 61, 76 (2020); Timothy Zick, The Costs of

Dissent: Protests and Civil Liabilities, 89 GEO. WASH.

L. REV. 233, 235 (2021). And the Fifth Circuit’s “exotic

theory” of negligent-protest liability, had it existed

historically, “would have enfeebled America’s streetblocking civil rights movement, imposing ruinous

financial liability against citizens for exercising core

First Amendment freedoms.” Pet. App. 69a (Willett, J.,

concurring in part and dissenting in part).

Due to the dynamics of large groups converging to

protest politically and emotionally charged topics,

violence looms as a possibility even within peaceful

movements. “You might even say that violence is

nearly always foreseeable when an organizer takes

specific action by putting together a large-enough

event,” Judge Willett observed. Id. at 68a. For

example, student activists organized SNCC’s Freedom

Ride of 1961 as an act of nonviolent civil disobedience,

traveling through the South on integrated buses to

protest state statutes prohibiting integration in

interstate-travel facilities. See RAYMOND ARSENAULT,

FREEDOM RIDERS: 1961 AND THE STRUGGLE FOR RACIAL

19

JUSTICE 141 (2006). Violence erupted, however, when

segregationists viciously attacked the Freedom Riders

in Alabama, resulting in injuries not only to protesters,

but also to bystanders, journalists, and Klansmen.

See id. at 156-58. Under the Fifth Circuit’s theory, it

could be argued that those injuries were foreseeable

consequences of the unlawful integration of the buses

at the direction of SNCC organizers. See Zick, supra,

at 273 (arguing that the negligent-protest theory

“authorizes holding leaders accountable for the

violence even of those opposed to the protest”).

Similarly, although Dr. King was a committed

proponent of nonviolent protest, his 1968 Memphis

march to support striking sanitation workers turned

violent when some young men began breaking

storefront windows. See Pet. App. 70a (Willett, J.,

concurring in part and dissenting in part). “Had Dr.

King been sued, either by injured police or injured

protestors,” Judge Willett explained, “I cannot fathom

that the Constitution he praised as ‘magnificent’—‘a

promissory note to which every American was to fall

heir’—would countenance his personal liability.” Id.

at 70a-71a (footnote omitted) (quoting Dr. King’s 1963

“I Have a Dream” speech). Yet that is precisely the

result the Fifth Circuit’s “exotic theory” would yield.

Id. at 69a.

Violence erupted incident to other historic

protests as well, including the 1913 march on

Washington organized by leaders of the Women’s

Suffrage Movement. See Lorraine Boissoneault, The

Original Women’s March on Washington and the

20

Suffragists Who Paved the Way, SMITHSONIAN MAG. (Jan.

23, 2017), https://www.smithsonianmag.com/history/

original-womens-march-washington-and-suffragistswho-paved-way-180961869/. As thousands of women,

including Helen Keller, journalist Nellie Bly, and

activist Ida B. Wells, gathered in the Nation’s

Capital to advocate for a constitutional amendment

guaranteeing women the right to vote, they were

often “heckled and harassed by the crowd” of

onlookers. Id. Pennsylvania Avenue was “completely

choked with spectators” who “converge[d]” on

protesters and blocked their route. Alan Taylor, The

1913 Women’s Suffrage Parade, ATLANTIC (Mar. 1,

2013), https://www.theatlantic.com/photo/2013/03/100years-ago-the-1913-womens-suffrage-parade/100465/.

Dozens of marchers were injured, “shoved and tripped

by spectators.” Id. Had the negligent-protest tort

been available, anyone injured—whether protesters,

medical caregivers, or perhaps even some of the

heckling and violent onlookers—could have sued the

march’s organizers, pointing to street-blocking tactics

as the trigger for negligent-protest liability.4

Contemporary movements also would be severely

threatened by negligent-protest liability, as the

same possibility of incidental violence and police

presence looms whenever groups gather to challenge

4

Although organizers had obtained a permit for the march,

it is not difficult to imagine the possibility, given the ensuing

conflict, that an organizer nonetheless could have been charged

criminally for directing protesters “to occupy the roads” on Capitol

grounds “in such a manner as to obstruct or hinder their proper

use.” D.C. CODE § 882 (1911).

21

governmental action and clash with others on hotbutton issues. Student walkouts have become a

powerful tool for today’s youth to voice concerns

over widely debated topics, including COVID-19,

immigration, gun control, and climate change. Such

walkouts could include the same type of streetblocking features used in historical movements

and—whether because of truancy, street-blocking, or

other actions—have elicited police responses that

increase the likelihood of negligent-protest liability.

See, e.g., Mark Kittle, Wisconsin High School Threatens

Students with Truancy and Fines for Protesting

Mask Rules, THE FEDERALIST (May 14, 2021), https://

thefederalist.com/2021/05/14/wisconsin-high-schoolthreatens-students-with-truancy-and-fines-for-protestingmask-rules/; Jason Scronic, Take Your Seats: A

Student’s Ability to Protest Immigration Reform at

Odds with State Truancy and Compulsory Education

Laws, 2 FLA. A&M U. L. REV. 185, 186-87 (2007);

Melinda Meza, 5 Stockton High School Students

Arrested During Protests, KCRA 3 (Feb. 23, 2018),

https://www.kcra.com/article/5-stockton-high-schoolstudents-arrested-during-protests/18705070; Somini

Sengupta, Protesting Climate Change, Young People

Take to Streets in a Global Strike, N.Y. TIMES (Sept. 21,

2019), https://www.nytimes.com/2019/09/20/climate/

global-climate-strike-html.

If the risks of a walkout no longer peak at truancy,

but also include financially crippling civil damages

for injuries caused by a third party, student activists

may choose not to organize protests—a costly loss to

democracy. Like the student Freedom Riders and

22

SNCC organizers of lunch-counter sit-ins, the leaders

of today’s student protests have a vital role to play in

furthering public discourse and effecting meaningful

change. The negligent-protest tort imperils such

contributions, threatening to eradicate the breathing

space that enables core protected speech to flourish.

The tort’s stifling effects, moreover, will span the

political spectrum. In the pre-Dobbs abortion context,

for example, this Court struck down attempts to limit

pro-life protests outside of clinics to preserve the

breathing space needed for free speech. See, e.g.,

Madsen v. Women’s Health Ctr., Inc., 512 U.S.

753, 773-75 (1994); McCullen v. Coakley, 573 U.S.

464, 469-70, 497 (2014). These protests involved

confrontations on public streets and occupation of

public spaces, and “there is no question that this

public sidewalk area is a ‘public forum,’ where citizens

generally have a First Amendment right to speak.”

Madsen, 512 U.S. at 790 (Scalia, J., concurring in the

judgment in part and dissenting in part). The location

of these clinic protests also, however, triggered some

of the same often unlawful street-blocking that

occurred during the Baton Rouge Black Lives Matter

protest and that inhered in many landmark civilrights protests, making a police response foreseeable.

The close proximity between protesters and patients

attempting to enter the clinic, the emotionally charged

content of protesters’—and counter-protesters’—

speech,5 and the history of violence between these

5

In Madsen, Justice Scalia described exchanges between

pro-life and pro-choice proponents in front of the Florida clinic,

listing a wide range of expressive activity that was documented

23

groups6 may foreseeably “creat[e] the conditions

under which a plaintiff is likely to be injured,”

triggering negligent-protest liability. Pet. App. 37a.

The breathing space the First Amendment requires

leaves no room for the negligent-protest tort’s chilling

effects across the political spectrum.

B. Expansive Tort Liability Will Chill Too

Much Protest Speech.

By imposing liability on protest leaders for

negligently directing a protest, the Fifth Circuit’s

approach negates the First Amendment protections

this Court requires. See supra Part I.B. As discussed

above, the threat of civil liability restricts freedom of

speech just as much as, if not more than, criminal

prosecution. See, e.g., Sullivan, 376 U.S. at 277. And

the negligent-protest tort exposes protest leaders

to the possibility of almost limitless liability, which

contravenes a robust First Amendment. See Pet.

App. 15a-18a; see also Sullivan, 376 U.S. at 277-78.

on film without violent encounters. 512 U.S. at 787-90 (Scalia, J.,

concurring in the judgment in part and dissenting in part). But

with one protester yelling, “You are responsible for the deaths

of children . . . . You are a murderer,” id. at 789, and another

shouting, “Right to life is a lie, you don’t care if women die,” id.

at 787, things could have gone another way.

6

See, e.g., Liam Stack, A Brief History of Deadly Attacks

on Abortion Providers, N.Y. TIMES (Nov. 29, 2015),

https://www.nytimes.com/interactive/2015/11/29/us/30abortionclinic-violence.html.

24

This Court’s constraints on outlawing incitement

arose from the principle that “the constitutional

guarantees of free speech and free press do not permit

a State to forbid or proscribe advocacy” except in the

narrowest circumstances. Brandenburg, 395 U.S. at

447. And this same principle animated this Court’s

protection of speakers from tort liability in Hustler,

485 U.S. at 56, and protest leaders from tort liability in

Snyder, 562 U.S. at 458-59, and Claiborne, 458 U.S. at

912-13. In each case, general rules of causation and

liability had to be adjusted to serve an overarching

purpose: protecting free speech.

The Fifth Circuit’s negligent-protest tort cannot

be reconciled with either this Court’s tests or the

reasoning behind them. It does not cabin liability only

to incitement, because it restricts speech irrespective

of the organizer’s intent and absent a showing that

resulting harms are imminent. Pet. App. 17a, 35a-36a;

Brandenburg, 395 U.S. at 447. Contrary to the rule in

Claiborne, the tort exposes any protest organizer to

liability based on harms caused by other protestors,

with no requirement that the organizer “authorized,

ratified, or even discussed” another’s injurious act.

458 U.S. at 924; see Pet. App. 25a-26a.

And if liability under the negligent-protest tort

is limited only by common-law rules of foreseeability

and but-for causation, it presents the same dangers as

the civil liability this Court rejected in Sullivan, 376

U.S. at 277, and Claiborne, 458 U.S. at 918-20—not to

mention the chill caused by the threat of costly

litigation, successful or not. Civil-damages exposure

25

for a “negligent protest” would likely exceed any

available criminal punishment for the type of

violations the court below pointed to as justifying

petitioner’s liability. For example, in this case, the

Louisiana law that prohibited blocking highways

allowed a fine of “not more than two hundred dollars”

or “imprison[ment] for not more than six months

or both.” LA. STAT. ANN. § 14:97; Pet. App. 16a.

By contrast, respondent seeks damages for pain

and suffering, physical injuries, emotional and

mental distress, loss of employment, medical bills,

inconvenience, future lost wages, and all litigation

expenses. Complaint for Damages at 7, Doe v.

Mckesson, 272 F. Supp. 3d 841 (M.D. La. 2017)

(No. 16-00742).

Moreover, a cause of action brought by one party

does not preclude causes of action by others injured

during a protest, exposing the organizer to almost

limitless liability. See Sullivan, 376 U.S. at 278. And

plaintiffs will not always be law-enforcement officers;7

nothing in the Fifth Circuit’s approach bars suits by

fellow protesters who suffer injuries. Nor would it bar

suits by counter-protesters who allege that they were

7

Suits by law-enforcement officers may be particularly

problematic. Officers have immense discretion to decide when to

respond to a crime. See Atwater v. City of Lago Vista, 532 U.S.

318, 354 (2001). Accordingly, officers can wield great power over

the cost of protesting. See Juhl v. Airington, 936 S.W.2d 640, 648

(Tex. 1996) (Gonzalez, J., concurring) (An officer’s suit for

damages for a back injury sustained while removing abortion

protesters would be a “back-door attack by state actors on a

constitutional right—the right to political speech.”).

26

injured—a group with great incentive to burden the

protest organizer’s speech.

The fundamental flaw in the Fifth Circuit’s

negligent-protest tort is that it collapses the breathing

space essential to robust public speech and debate.

Snyder, 562 U.S. at 458; Hustler, 485 U.S. at 52;

Sullivan, 376 U.S. at 271-72. Tort regimes that impose

liability on protest leaders for mere negligence “would

have an undoubted ‘chilling’ effect on” the protests

themselves. Hustler, 485 U.S. at 52. Avoiding this

chilling effect is the underlying purpose of this Court’s

precedent restricting liability for speech, from direct

regulation of speech (as in Brandenburg) to speechbased torts (such as defamation) and more general

torts (such as intentional infliction of emotional

distress and malicious interference with business).

See supra Part I.B. Allowing a speech-related tort

that lacks any such restrictions on liability would

seriously undermine that purpose and, in the process,

gut the First Amendment guarantees on which a

thriving democracy depends.

---------------------------------♦---------------------------------

27

CONCLUSION

The Court should grant the petition and reverse

the judgment of the Fifth Circuit.

Respectfully submitted,

ERIN GLENN BUSBY

JOHN W. WHITEHEAD

WILLIAM E. WINTERS

Counsel of Record

THE RUTHERFORD INSTITUTE LISA R. ESKOW

109 Deerwood Road

MICHAEL F. STURLEY

UNIVERSITY OF TEXAS

Charlottesville, VA 22911

(434) 978-3888

SCHOOL OF LAW

SUPREME COURT CLINIC

727 East Dean Keeton Street

Austin, TX 78705

(713) 966-0409

December 15, 2023

ebusby@law.utexas.edu