Extended Thoughts on the Police Officer’s Suit Against Black Lives Matter

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Commentary, Free Speech

Last week a Baton Rouge police officer wounded in an ambush that killed three officers and wounded two others filed a lawsuit, Officer John Doe Smith v. Black Lives Matter, et al., claiming that Black Lives Matter, and several of its most prominent activists, should be held liable for the injuries he suffered.  Over the weekend a journalist asked Dave for comment on the lawsuit, which has resulted in his being quoted by PBS NewsHour (twice), the Washington Post, and the Atlantic.  By necessity, most media quotes give just a tiny glimpse of the broader conversation that took place between the reporter and the interviewee, and we wanted to offer a more extensive understanding of why this particular lawsuit is so unusual, and so unusually dangerous for the freedoms of speech and association.

The plaintiff’s complaint points to the long line of protests and civil disobedience that have taken place in the past couple of years as Black Lives Matter (which is more of a decentralized social movement than it is a cohesive, defined organization) was rising to prominence.  It asserts that Black Lives Matter and specific activists claiming to represent that movement fostered an atmosphere of hate and distrust for police officers nationwide, and the lawsuit points out that some of the people involved in Black Lives Matter protests engaged in violence directed at police officers.  The complaint argues not that Black Lives Matter called for or encouraged specific acts of violence, but rather that calling for civil disobedience (for example, the planned violation of traffic laws in order to raise awareness of their cause) constituted a general encouragement of all forms of lawbreaking, and that a failure to explicitly disavow violence functionally “ratified” the violence to which some had resorted.  Put another way, the legal theory is that when some people – even people who are not directly involved with Black Lives Matter communications or protests – chose to become violent towards police officers, Black Lives Matter had a duty to publicly disavow that violence, and failing to disavow it makes Black Lives Matter legally responsible for that violence.  That’s the legal theory being advanced in the Officer John Doe Smith lawsuit.

Most cases involving freedom of speech begin with a criminal charge, an accusation that a particular speaker has violated a law.  In a case like that, the defendant will be at risk of fines and imprisonment, but there will also be a hard limit on the extent of punishment they might face, they have constitutional guarantees of legal representation and a speedy trial, and the party accusing them of wrongdoing must prove beyond a reasonable doubt that the speaker committed a crime.  But there are no criminal charges made in Officer John Doe Smith.  Instead, the officer is arguing that Black Lives Matter behaved negligently in making public statements and organizing public protests that were critical of police, and that this negligence so directly led to the officer’s injury that the activists should have to pay damages to the officer.  In a civil case such as this, there is rarely a hard limit on the financial damages a court might assess, the defendant is not guaranteed legal representation or a speedy trial, and the plaintiff only needs to persuade a jury that it is more likely than not that the defendant contributed to the plaintiff’s injuries.  In that sense, it is more difficult and costly to defend oneself against a civil suit than it is to defend oneself against a criminal accusation.

The fact that Officer John Doe Smith is a civil case also makes a First Amendment defense more challenging.  The First Amendment was intended, first and foremost, to protect citizens against government actions.  If accused of violating a statute or ordinance, a defendant can argue that the statute or ordinance is unconstitutional.  But a lawsuit for negligence depends on common law principles, not on statutes, and it is almost always a private citizen who brings such a lawsuit, not the government.  So rather than arguing, in straightforward fashion, that there is some law that is unconstitutional, a defendant in a negligence case that attacks a person’s public statements must show that it would violate the First Amendment for a court to award the requested damages. That is, in fact, the position in which Black Lives Matter and the individual activist defendants find themselves.

Fortunately for them, the facts of Officer John Doe Smith do not appear to support the officer’s negligence claim.  The complaint painstakingly details a number of incidents of civil disobedience across the country that were either organized by Black Lives Matter or were inspired by that movement.  It hones in on a specific Black Lives Matter protest in Baton Rouge held on July 9, 2016, to protest the killing of Alton Sterling, an unarmed black man, by Baton Rouge police officers and also the killing of Philando Castile, an unarmed black man, by a police officer in Minnesota.  The complaint asserts that the protest turned violent and that one of the named defendants, DeRay McKesson, “incited violence on behalf of Black Lives Matter,” but it does not explain what McKesson might have (allegedly) said or done to “incite violence.”  The lawsuit seems to suggest that this event, more than any of the others, is what led to the plaintiff’s injuries.

But here’s the thing – the plaintiff was not injured at that protest. He was injured more than a week later on July 17, 2016, in an ambush planned by Gavin Long, a lone gunman who had not been at that July 9 protest, had not been involved with Black Lives Matter, and who shortly before perpetrating his ambush of the Baton Rouge police offices had stated that he was acting on his own and not at the prompting of any other group.  The plaintiff’s theory of the case is that, Long’s own statement notwithstanding, because Black Lives Matter had failed to expressly disavow violence on the part of protesters, the movement and its leaders caused Long to undertake his attack on the plaintiff.  That is a very, very weak argument, and it seems highly unlikely to succeed in court.

But the weakness of the case raises a different question.  The attorney who filed the case has to know how weak this argument is – it is unlikely that she really believes the claim will succeed.  So why file the case?

Two possible reasons jump immediately to mind.  The first is that the prospect of getting sued is scary – especially for people who lack the financial resources to mount a vigorous legal defense.  If someone knows that behaving a certain way raises a serious possibility of getting them sued, they will have a strong incentive to avoid that behavior.  So what is the behavior that this lawsuit targets?  Civil disobedience.  Criticism of police officers.  Silence when someone who may share your point of view does something violent.  This lawsuit suggests that if someone engages in activism and fails to disavow certain actions undertaken by other possibly like-minded activists, you might get sued and held vicariously liable for their actions.  In other words, this lawsuit is a warning shot across the bow of activists critical of police officers, warning them to limit their protests to forms and methods that are generally inoffensive to others and to publicly disavow any despicable actions taken by others who might be trying to promote the same issues, lest the activists be accused of guilt-by-association for those others’ actions.

The second possible motivation for the lawsuit is more sinister.  In litigation the parties get to engage in discovery, forcing their opponents to reveal all sorts of documents, statements, and conversations that might otherwise be private.  Sometimes lawsuits are less about getting the relief that lawsuit is asking for than they are about gaining access to all sorts of information held by an opponent.  And certain law enforcement officers would surely be interested in gaining access to the vast amount of information and communications exchanged among Black Lives Matter activists – information that they might force the defendants to produce during this litigation.  So it is possible that gaining access to that information is the real focus of the Officer John Doe Smith lawsuit.  If so, that would make this case somewhat similar to NAACP v. Alabama, in which the state of Alabama had demanded that the NAACP must turn over to the government a trove of confidential information about the organization and its members.  The U.S. Supreme Court unanimously held that requiring the NAACP to provide that private information to the state of Alabama violated the First and Fourteenth Amendments by improperly burdening citizens’ freedom to associate and their right to keep their associations private.

Dave also pointed out in his interview with the journalist the danger to the First Amendment if courts came to endorse the legal theory the Plaintiff is asserting.  It has become more and more common of late for people of all political stripes to demand that their political opponents must publicly “condemn” statements made or actions taken by others who have in one way or another expressed support for them. Failure to issue a sufficient condemnation results in cries that the political opponent actually agrees with – and perhaps is responsible for – whatever presumably awful thing this other person may have said or done.  Sadly, there are plenty of recent, real-world examples: “Donald Trump failed to condemn anti-Semitism – he is responsible for assaults on Jews!”  “Barack Obama failed to condemn violence by anti-Trump protesters – he is responsible for assaults on police and businesses!” “That professor failed to participate in or endorse our chosen form of protest – he must be a racist/sexist/homophobic bigot!”

It is one thing for these disputes to take place solely at the rhetorical level, where citizens may choose either to be deeply offended by the public figure’s choice to condemn or not to condemn, or to dismiss either side’s statements (or non-statements) as inconsequential political theater.  It is an entirely different matter if real, legal consequences attach to a person’s statements – or non-statements, as the case may be – regarding someone else’s actions.  That is what is at stake in the Officer John Doe Smith case.

In Missouri, we have concrete historical examples of the danger this approach poses.  In the wake of the Civil War the new state constitution prohibited citizens to vote, to hold office, to serve as a juror, or to earn a living in a number of prominent professions if they had been accused of so much as ever harboring or expressing sympathy for those fighting against the Union or of attempting to avoid military service to the United States.  Before being permitted to vote, every citizen was compelled to swear that they had “always been truly and loyally on the side of the United States against all enemies, foreign and domestic[.]” If a person swore the oath and was later accused of swearing falsely – in other words, if they were accused of at some point having harbored or expressed sympathy for those fighting against the Union or of attempting to avoid military service to the United States – they could be convicted of perjury and thrown in the state penitentiary for two years.  The theory behind these draconian provisions is that if a person does not actively disavow persons, organizations, or ideas that some find abhorrent, they may be presumed to be complicit in any actions undertaken by persons who share those ideas.

After just a few years of experience with this policy that is fiercely contrary to free expression, independent thought, and notions of due process, Missourians removed the Ironclad Oath from their constitution.  We would all be wise enough to learn from their experience and avoid any new iterations of “thoughtcrime.”