Racial activist Deray Mckesson led a Black Lives Matter demonstration in Baton Rouge, Louisiana that illegally occupied a roadway; in the ensuing confrontations, an unidentified person threw a missile that seriously injured a police officer. Can the officer sue Mckesson for lawbreaking acts that foreseeably created dangerous conditions that led to his injury?

In August a panel of the Fifth Circuit ruled unanimously that the First Amendment did not block such a suit; earlier this month the panel reissued an altered opinion after one of its members, Judge Don Willett, changed his mind and wrote a partial dissent finding Mckesson to have a First Amendment defense. [Jonathan Adler, Volokh Conspiracy] Central to the constitutional issues at play here is the 1982 case of NAACP v. Claiborne Hardware, in which a unanimous Supreme Court held that the First Amendment can bar the imposition of civil liability on organizers of protests even when some participants commit, or threaten, acts of violence.

Eugene Volokh has now written a series of posts on the case. Part I asks: why didn’t Mckesson’s lawyers invoke doctrines precluding recovery by rescue professionals (“firefighters’ rule”) to bar the officer’s claim? Part II is on the tort law side of the case (independent of the First Amendment angle), and so far as I can see Volokh and Willett reach different conclusions. In Part III, Volokh addresses the First Amendment issues, in the light of precedents like Claiborne Hardware. While the analysis is not a simple one, Volokh is “inclined to say that the First Amendment doesn’t require” immunity for foreseeable civil harms resulting from unlawful blocking of public roads as a protest.

Filed under: Fifth Circuit, firefighters rule, First Amendment