SCOTUS Misses a Chance to Protect Peaceful Protesters

In his last protest march, Martin Luther King Jr. led a parade of demonstrators down Beale Street in Memphis, Tennessee, lending his support to striking sanitation workers. After a few young Black men started breaking storefront windows, the indiscriminate police response killed one suspected looter and injured dozens of protesters.

Under a legal theory blessed by the U.S. Court of Appeals for the 5th Circuit, King could have been held liable for the unanticipated harm that ensued from that March 1968 protest, even though he neither directed nor advocated vandalism or violence. On Monday, the U.S. Supreme Court declined to review that decision, which threatens to chill the exercise of First Amendment rights by exposing protest leaders to crushing civil liability based on conduct beyond their control.

The case involves a lawsuit that blames Black Lives Matter leader DeRay Mckesson for injuries a police officer suffered during a 2016 demonstration in Baton Rouge, Louisiana, after someone hurled “a piece of concrete or a similar rocklike object” that struck him in the head. Last June, a divided 5th Circuit panel allowed that lawsuit to proceed on the theory that Mckesson “negligently” organized a protest on the street outside police headquarters when it was “reasonably foreseeable for the police to respond, and violence to ensue.”

That ruling flies in the face of First Amendment principles the Supreme Court reaffirmed less than two weeks later. In Counterman v. Colorado, which involved a man who had sent hundreds of alarming Facebook messages to a local musician, the court held that mere negligence was not enough to hold him criminally liable for “true threats.”

In this context, Justice Elena Kagan said in the majority opinion, the appropriate standard is recklessness, meaning “the defendant consciously disregarded a substantial risk that his communications would be viewed as threatening violence.” That more demanding standard is necessary, she explained, because a negligence test, which does not require an awareness of risk, was apt to “chill protected, non-threatening speech.”

Kagan noted that “our incitement decisions demand more” than recklessness. “When incitement is at issue, we have spoken in terms of specific intent,” she wrote, recognizing that “incitement to disorder is commonly a hair’s breadth away from political ‘advocacy.’”

Even when someone endorses unlawful conduct, the court held in 1969, the person’s speech is constitutionally protected unless it is both “directed” at inciting “imminent lawless action” and “likely” to do so. The court applied that principle in a 1982 case involving a largely peaceful but sometimes violent boycott of white merchants in Claiborne County, Mississippi, that the NAACP launched in 1966.

Unlike Mckesson, boycott leader Charles Evers had endorsed violence, saying, “If we catch any of you going in any of them racist stores, we’re gonna break your damn neck.” The court nevertheless ruled that Evers could not be sued for damages suffered by white business owners.

Under these precedents, dissenting 5th Circuit Judge Don Willett thought, it is clear that Mckesson cannot be held responsible for someone else’s violence. He warned that the majority’s “novel ‘negligent protest’ theory of liability” would “reduce First Amendment protections for protest leaders to a phantasm, almost incapable of real-world effect.”

Such a rule, Willett said, “would have enfeebled America’s street-blocking civil rights movement, imposing ruinous financial liability against citizens for exercising core First Amendment freedoms.” He cited King’s 1968 march in Memphis as an example.

There is still time to heed Willett’s warning. As Justice Sonia Sotomayor noted when the Supreme Court turned away Mckesson’s appeal, that decision “expresses no view about the merits” of his First Amendment claim, which the lower courts can now consider in light of Counterman.

“It is disappointing that the Court did not take the opportunity to bring this case to an end,” said David Goldberg, Mckesson’s lawyer. “But I am confident that the Court eventually will consider and repudiate this dangerous rule of law.”

Jacob Sullum is a senior editor at Reason magazine. Follow him on Twitter: @ jacobsullum. To find out more about Jacob Sullum and read features by other Creators Syndicate writers and cartoonists, visit the Creators Syndicate webpage at www.creators.com.

If a belligerent state launched 185 explosive drones, 36 cruise missiles and 110 surface-to-surface missiles from three fronts against civilian targets within the United States, would President Joe Biden call it a “win”?

Would the president tell us that the best thing we can do now is show “restraint”? What if that same terror state’s proxy armies had recently helped murder, rape and kidnap more than 1,000 American men, women and children? What if this terror state were trying to obtain nuclear weapons so it could continue to agitate without any consequences?

This is what Biden and the Barack Obama acolytes, Iranian dupes and Israel antagonists he’s surrounded himself with demand of the Jewish state.

And by “Iranian dupes,” I don’t only mean the Jake Sullivans and Antony Blinkens of the world, who worked to elevate the mullahs over Sunni allies and the Israelis, or even a Hamas bestie like Rob Malley or Israel hater like Maher Bitar. I mean assets of the Islamic State who promised the Iranian government to help out in any way possible.

Their worldview is a cancer that’s metastasized within the Democratic Party. To these people, Israel will always be the villain. And if the Iranian regime’s murder of more than 600 American servicemen couldn’t cool that bromance, 1,200 dead Jews certainly aren’t going to do the trick.

The Trump administration undercut Palestinian terror efforts, stifled Iranian ambitions, and created space for the Gulf states and Israel to enhance ties.

Biden immediately reversed those gains, reverting to Obama-era Iranian boosterism. We’re now experiencing the consequences of pacifying Islamic ideologues. Obama might have sent the mullahs pallets of cash in the middle of the night, but the Biden administration openly subsidized the Revolutionary Guard with a $6 billion ransom payment, at least $25 billion in sanction relief, including $10 billion via a waiver, and so on.

Let’s also remember that one of Biden’s first foreign policy decisions was to overturn Trump-era policy by releasing millions to Gaza that would be sifted off by Hamas, releasing funding to Hamas-allied United Nations Relief and Works Agency, and removing the Iranian-backed Houthis from the terror list.

It should be mind-boggling that Biden likely knew Iran was moving forward with its attack but still gave his goofy and impotent “don’t” when asked about it by the press.

Indeed, the Biden administration’s position seems to be that Israeli military and defense forces exist to allow Iran to have a hissy fit and save face. The Iranian attack is only “symbolic” because it failed.

Just because you shoot at someone and miss doesn’t mean you’re not trying to kill them. Yes, the Iranians were embarrassed. But they almost surely view this as a win. And they also crossed a red line by firing on Israel from their own territory. Yet Israel is apparently the only nation on Earth that is permitted to fully defend itself only if its enemies succeed.

Every conflict against Israel unfurls the same way: Its enemies threaten or attack the country. Israel responds and heads for a victory. Only then does the world demand “restraint.” Finally, the antagonists demand Israel rewind history to a more convenient spot. (Modern Democrats demand that Israel show restraint before it even has a chance to respond. That’s a new twist.)

Those, for instance, who contend that Israel started the conflict when it hit a “diplomatic mission” in Syria last week are engaged in restarting the historical clock when it suits them. There are no Iranian diplomatic missions in Syria. There are buildings where Islamic Revolutionary Guard Corps terror leaders coordinate attacks on civilians — against Arabs as well as Jews. Mohammad Reza Zahedi, the “general” Israel killed last week, helped plan the barbarism of Oct 7.

Recall that the United States atomized Qasem Soleimani at a neutral nation’s airport. Though, of course, Obamaites protested that killing as well.

Now, it is something of a cliche to contend that Israel must be right 100% of the time while its enemies only need to be right once. It also happens to be true. Israel, a country the size of New Jersey with a dense population area, relies on deterrence and preemption.

Democrats blamed their strawman, Benjamin Netanyahu, not Hamas or Iran, for trying to “drag” the world into war. The New York Times’ Tom Friedman, perhaps the wrongest person ever to tread on this planet, theorized that the prime minister wanted “a war to shore up his own crumbling political base.”

Axois reports that Netanyahu was reluctant to strike back, while his cabinet wanted to move immediately. The “war hawk” perception of him is a myth, created by the Left because of the prime minister’s open opposition to Obama’s mullah bootlicking.

We have no idea what Israel will do. Maybe caution is the best policy. The notion that the Jewish state simply lashes out in revenge and doesn’t rationally consider all its options is preposterous. Whatever happens, it should be on Israel’s terms, not Iran’s.

Despite what retreads demand.

Obama’s

David Harsanyi is a senior editor at The Federalist. Harsanyi is a nationally syndicated columnist and author of five books — the most recent, “Eurotrash: Why America Must Reject the Failed Ideas of a Dying Continent.” His work has appeared in National Review, the Wall Street Journal, Washington Post, Reason, New York Post and numerous other publications. Follow him on Twitter @davidharsanyi.