Supreme Court vacates First Amendment decision, tells lower court to certify negligence question to Louisiana

Mckesson
(HimmelrichPR CC BY-SA 2.0)

A negligence lawsuit blaming Black Lives Matter organizer DeRay Mckesson for injury to a police officer is on hold since the U.S. Supreme Court ordered the Fifth Circuit to certify the problem in tort law to the Louisiana Supreme Court.

I wrote about this case in April.  Unidentified police officer John Doe suffered severe physical injury and brain trauma after being struck in the face by a rocky projectile while responding to a protest-occupation of a Louisiana highway.  Mckesson did not throw the rock; the officer sued in negligence, accusing Mckesson of having created a violent climate as a protest organizer.  Mckesson raised a First Amendment defense, which a divided Fifth Circuit court rejected.

On appeal, the U.S. Supreme Court invoked, if not by name, the doctrine of constitutional avoidance.  The Court vacated the Fifth Circuit decision and remanded.  The Court opined that the Fifth Circuit should have asked the Louisiana Supreme Court whether state negligence law could support liability at all, before engaging with the thorny constitutional problem under the First Amendment.

Both Doe's negligence theory and Mckesson's First Amendment defense are close questions.  Mckesson never countenanced a violent attack on police.  Under conventional tort analysis, it is possible, but not easy, to show that a chain of proximate causation runs intact from a careless defendant, through an intentional, criminal act, to injury to the plaintiff, such that the careless defendant may be held liable for the violence inflicted by the intermediary criminal actor.  Imposing liability in that way obviously raises First Amendment problems when the alleged negligence is part and parcel of free speech and assembly.

Cases of such "negligent incitement" have long been problematic in First Amendment doctrine.  The "Soldier of Fortune cases" over "gun for hire" ads, e.g., Braun, Eimann, are loosely analogous.  Results have varied, and no clear rule has emerged.  Now, in the internet era, the problem has been amplified, because universal access to mass communication has exaggerated the potential for incitement.

I suggest that the Louisiana Supreme Court solve the problem through analysis of duty (or perhaps "scope of liability," if the court wishes to embrace the approach of the Third Restatement of Torts).  Duty is all about public policy, so there is no need to whisper about the First Amendment as a thumb on the scale.  It's no stretch to conclude that the organizer of a protest, even one predicated on civil disobedience, but without specific knowledge of impending violence, does not owe a duty to protect a responding police officer.  Though the Supreme Court wished to avoid the broad constitutional question of a First Amendment defense, the state court may prioritize free speech and assembly in a public policy analysis.

The case is Mckesson v. Doe, No. 19-1108, 592 U.S. ___ (Nov. 2, 2020) (SCOTUSblog).  The opinion was per curiam.  Justice Thomas dissented without opinion, and Justice Barrett took no part.

Who Dat lawsuit for 'negligence,' 'emotional anguish' is really a desperate mandamus plea

Controverted play in Rams vs. Saints conference championship game
(NFL image via GMA and Daily Show: fair use).

Full disclosure: I'm not a football (NFL) fan—rather a football (association) follower—but if I were, I would have a soft spot for the Saints, because I love New Orleans and married into a proud Louisiana family.

So it caught my attention when Roy Wood Jr. on The Daily Show with Trevor Noah (Comedy Central, YouTube) asked whether in fact the "Saints Were Robbed," and then quoted from a lawsuit against Roger Goodell and the NFL claiming negligence and "emotional anguish."  I'm always intrigued by the scent of negligent infliction of emotional distress, which is a kind of chimera in American tort law.

The lawsuit, which can be downloaded from its attorney-author's website and was first reported by WDSU, is really a petition for mandamus, not a tort suit.  It does allege negligence on the part of Goodell and the NFL and asserts that they have the power under NFL rules to remedy the bad call of the Saints-Rams game.  As Roy Wood Jr. observed on The Daily Show, the petition dramatically alleges "emotional anguish" and "loss of enjoyment of life" by Saints fans.  It does not, however, assert any legal basis to order Goodell or the NFL to comply with their own rule book, even if that is what they would be doing by replaying all or part of the game.

On an SB Nation blog, an L.A. attorney and confessed Rams fan fairly if spitefully described the Who Dat petition as "one of the most frivolous lawsuits to be filed. Ever." Of course, Americans have a long tradition of working out sport frustrations in litigation—that I'm today a soccer fan is evidence of the struggle—so maybe professionalism should allow some latitude for that.