On Friday, a lawyer for one of the Baton Rouge police officers ambushed last summer by an unhinged military vet angry about police brutality filed a lawsuit against Black Lives Matter. The idea behind the suit, which also names BLM leaders, is that prominent police critics like DeRay Mckesson are legally (and financially) responsible for inciting violence against cops, even if the people who commit individual crimes against law enforcement—in this case killing three officers and wounding three more—have no connection to the broader movement.
This is the second time Mckesson has been sued by the same lawyer, Donna Grodner, and the weird pseudo-rap ads I found for her on her YouTube page made me suspect the whole thing might be a stunt for attention. (How can you sue "#BlackLivesMatter," which is—seriously—named as one of the defendants in this latest suit?) But even if the complaint seems to stand little chance of success, it's fair to wonder if its very existence might augur a new normal where people weaponize the legal system to chill the speech of social movements they don't like.
The case that set the standard of when people are legally responsible for inciting violence in the United States was decided in 1969. In Brandenburg v. Ohio, the Supreme Court ruled that a Ku Klux Klansman was wrongfully prosecuted for insinuating during a rally that the KKK should take revenge against its enemies.
Given that precedent, Geoffrey Stone, a constitutional law expert at the University of Chicago, told me the new lawsuit against Black Lives Matter "sounds silly." In fact, a solid chunk of it is predicated on a right-wing conspiracy theory involving fabricated Twitter messages allegedly sent by Mckesson about his desire to bring about martial law, as VICE News reported.
Meanwhile, the few actual quotes attributed to activists like Mckesson in the suit, such as, "The police want protesters to be too afraid to protest," and "people take to the streets as a last resort," seem to fall way below the threshold of what was established in Brandenburg.
"[The quote] would have to be basically, 'You go kill this person,'" Stone told me of the standard for incitement. "It would have to be something the speaker meant to be taken seriously, and he would have to believe the person he was speaking to would go do it—and they would go do it imminently. The paradigm example is if there's a riot going on, and if somebody yells at someone holding a gun, "Shoot that son of a bitch," that would be an example of when someone's liable. Short of that, it's pretty hard to imagine."
As for whether Black Lives Matter can be sued as an organization in the first place, Gabe Rottman at the PEN America Foundation told me this is, in fact, possible. The injured officer's complaint cites an incorporated entity in Delaware called "Black Lives Matter Network," and #BlackLivesMatter is used to refer to an unincorporated corporation in California. Still, Rottman said that it doesn't matter if BLM has any legal entities associated with it, since the suit so clearly doesn't meet the precedent set in Brandenburg.
"The bigger issue is they haven't alleged anything that meets the First Amendment definition of incitement, as best I can tell," he told me. "By this logic, any protest that has a violent element could be targeted by a similar suit."
Even so, Meredith Rose, a staff attorney at legal clearinghouse Public Knowledge, wasn't ready to completely dismiss the prospects for this suit. Among other things, social media stands to complicate existing case law in situations like this, and citizens' ability to organize has changed tremendously since the Brandenburg decision, which, after all, came down the same year man first landed on the moon.
Rose said the Baton Rouge officer—who is said to be permanently disabled—and his lawyer could be holding on to a damning quote they intend to argue convinced Gary Long, the shooter, to go on his rampage. In Rose's experience, some of the key evidence in cases centering on incitements claims isn't dropped into the initial complaint but instead leaks out incrementally in a series of briefs.
"They're gonna have to provide something they claim was incitement," she said. "You can't incite someone just by existing."
The attorney pointed to a Supreme Court ruling just last month that a band should be allowed to trademark their allegedly racist name as evidence of the fact that the definition of protected speech is changing with time. In the age of Twitter, figuring out what constitutes a threat versus language the courts want to protect has become a "very sticky and difficult thing to navigate," Rose added.
For his part, Mckesson, whose activism has been defined by a nonviolent approach, told CNN he's confident the suit "has no merit." Other major BLM activists named in the suit like Johnetta "Netta" Elzie have declined comment so far on the pending litigation.
Regardless of how much social media has changed the way we communicate, Stone, the constitutional lawyer, is skeptical any judge is going to completely ignore one of the most important First Amendment cases in US History. And even if President Trump—who politicized the Baton Rouge shooting almost as soon as it happened—completely reshapes the federal judiciary between now and 2021, the precedent set by Brandenburg is entrenched in part because it's a double-edged sword. If a right-wing speaker came to a college campus, they could just as easily be sued under a looser standard—surely a terrifying prospect for conservatives everywhere.
"I wouldn't worry about that," Stone said.
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