BLUE SNOWFLAKES:

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 Reuters photographer Jonathan Bachman took the iconic photo, "Taking a Stand in Baton Rouge," depicting Pennsylvania nurse Ieshia Evans facing down a line of armored police.)  During the demonstration, someone threw a hard object that injured Officer Doe.

The arrested protesters sued city and county law enforcement for excessive force, and received a settlement totaling around $100,000 and an agreement that their arrest records would be expunged. Then Officer Doe (he received court permission to proceed under a false name) brought a suit against Mckesson and the entire Black Lives Matter movement, arguing that "Black Lives Matter leadership ratified all action taken during the protest. DeRay Mckesson ratified all action taken during the Baton Rouge protest." Mckesson "incited the violence," the suit alleged. But it offered no specific evidence--Mckesson's alleged "incitement" was, the suit said, telling The New York Times that "The police want protestors to be too afraid to protest."

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