One of the police officers who was grievously wounded last July in Baton Rouge, Louisiana, in a brutal attack by Gavin Long, a black, 29-year-old former Marine, filed an action on Friday for damages against the Black Lives Matter movement and several of its leading activists, including DeRay Mckesson and Johnetta Elzie, alleging that they negligently caused the attack.
The complaint alleges that the defendants “used the internet and social media to organize, stage and orchestrate protests,” that they “knew or should have known” that some of these “protests had in the past become violent” and that “police officers had been injured,” and that they did nothing to condemn or to discourage such violence.
Although I am deeply sympathetic to the plaintiff, an officer who was innocent of any wrongdoing, the trial judge should dismiss the complaint. The essential claim set forth by the plaintiff is that the defendants should have known that their speech condemning the attacks by police officers across the country against African-Americans might at some point lead some individual – in this instance an individual with serious emotional issues – to viciously attack police officers somewhere in the country.
The reason the judge should dismiss the complaint is not because it was inconceivable that of the millions of individuals exposed to the Black Lives Matter movement’s expression someone might have done what Long did, but because that is not the test for restricting speech in our democracy.
The First Amendment prohibits government from “abridging the freedom of speech, or of the press.” But what does that mean?
In the Supreme Court’s first decisions on the meaning of the First Amendment, during World War I, the Court held that any person whose speech had a “bad tendency” could be held civilly or criminally liable. Under this approach, an individual could be held liable if he could reasonably have foreseen that his expression might contribute to unlawful conduct. Under this approach, some 2,000 individuals during World War I were imprisoned for terms ranging up to twenty years in prison merely for criticizing the war or the draft, on the theory that such speech might turn people against the war and thus have the effect of discouraging enlistment or encouraging insubordination.
Justices Oliver Wendell Holmes and Louis Brandeis vehemently dissented from this understanding of the First Amendment. Holmes maintained, for example, that we
should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death, unless they so imminently threaten immediate interference with the lawful and pressing purposes of the law that an immediate check is required to save the country.
Several years later, Justice Brandeis added that “those who won our independence . . . knew that order cannot be secured merely through fear of punishment,” that “fear of serious injury cannot alone justify suppression of free speech and assembly,” and that
even advocacy of law breaking... is not a justification for denying free speech where the advocacy falls short of incitement and there is nothing to indicate that the advocacy would be immediately acted on.
In 1969, in a unanimous opinion in Brandenburg v. Ohio, the Supreme Court fully embraced the Holmes-Brandeis approach. The case involved the prosecution of a member of the Ku Klux Klan who declared at a Klan rally that it might be necessary for members of the Klan to take “revengence” if the government “continues to suppress the white, Caucasian race.” The Supreme Court held that the defendant’s speech could not constitutionally be punished and that the First Amendment forbade the government to restrict even speech that expressly advocates unlawful behavior “except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”
That has been the governing law ever since. But, you might ask, “Why?” Why shouldn’t the First Amendment permit the Black Lives Matter defendants to be held liable because they allegedly should have known that their speech condemning police attacks on African Americans might conceivably have led someone at some time in the future to shoot six policeman? In short, why did the Supreme Court come around to embracing the Holmes-Brandeis approach?
There are many reasons, but here are two of the most obvious. First, experience teaches that individuals are easily deterred from exercising their freedom of speech. This is so because individual speakers usually gain very little personally from speaking out – they know that whether they speak or not is not likely to have any significant impact on society. If they fear that they might go to jail or be held liable for damages for their speech, they will often forego their right to speak. This is known as the “chilling effect.” The net effect of this chilling effect when many individuals react the same way is to mutilate the thought process of the community. If those who endorse the Black Lives Matter movement could potentially be held liable for criticizing police misconduct because their speech might indirectly lead someone to kill a policeman, then our public discourse will be seriously crippled.
Second, experiences also teaches that if government can penalize speakers for their speech under a low standard for liability, it is likely to use that power selectively. It will pursue civil or criminal liability against those who convey views those in authority dislike, while at the same time shielding those whose views they want to encourage. In this way, government would be well placed to manipulate public discourse in a dangerous manner.
Thus, as Holmes and Brandeis consistently maintained, except in emergencies, the proper remedy for speech that might conceivably lead to bad consequences is not to punish the speaker, but to engage in counter-speech, to use other measures to avoid the danger, and to punish the person who actually commits the crime.
In this particular case, the outcome is crystal clear. Indeed, every significant factor needed to hold speakers accountable for the acts of others is missing. These defendants did not expressly advocate the shooting of police officers, there is no reason to believe that they ever specifically intended to encourage such behavior, and there is no reason to believe that their speech had anything directly to do with the heinous actions of Gavin Long.
The judge should quickly and decisively dismiss this complaint to make clear that the First Amendment wholly protects the speech of the Black Lives Matter movement . . . and the freedom of all Americans.