Don’t Let the First Amendment Forget DeRay Mckesson

[Elderberry]

The Atlantic by Garrett Epps 12/14/2019

An activist is on trial for being an activist, and the Supreme Court needs to protect anti-police protesters.

The Roberts Court has repeatedly assured the nation that the First Amendment protects everyone, regardless of popularity and regardless of viewpoint. The Court has a chance to put its doctrinal money where its free-speech mouth has been. It should do that as soon as possible by summarily reversing a recent atrocious Fifth Circuit decision called Mckesson v. Doe—rather than waiting until a Louisiana policeman has a chance to bankrupt a civil-rights activist with enormous litigation costs.

In this decision, a conservative panel of the Fifth Circuit—without even hearing oral argument—mounted a frontal offensive on a venerable First Amendment precedent that has protected unpopular speakers for four decades. The panel’s three judges (E. Grady Jolly from Mississippi, Jennifer Walker Elrod from Texas, and Don Willett from Texas) flatly defied that precedent and allowed a punitive lawsuit to proceed against DeRay Mckesson. Mckesson is one of the founders of Black Lives Matter, a speaker whose ideas are not merely unpopular among conservative, southern whites like the judges, but are seen to be truly “fraught with death,” as Justice Oliver Wendell Holmes Jr. once described speech that, though abhorrent, deserves protection.

Mckesson’s case goes back to July 5, 2016, when police in Baton Rouge, Louisiana, shot and killed a street vendor named Alton Sterling under unclear circumstances (Sterling was carrying a gun, but witnesses denied police accounts that he had been aggressive; no charges were brought against the officers). On the night of July 9, Black Lives Matter activists, including Mckesson, took part in a protest outside the police headquarters and blocked the highway. Police responded in force, arresting about 70 people or more, including Mckesson. (This protest is where the Reuters photographer Jonathan Bachman took the iconic photo “Taking a Stand in Baton Rouge,” depicting the Pennsylvania nurse Ieshia Evans facing down a line of armored police.)  During the demonstration, someone threw a hard object that injured Officer Doe.

More: https://www.theatlantic.com/ideas/archive/2019/12/dont-let-the-first-amendment-forget-deray-mckesson/603580/