A judge on the 5th Circuit Court of Appeals has changed his mind in a very important free speech case while the Supreme Court considers whether to hear the appeal. The case involves one of the founders of Black Lives Matter, DeRay Mckesson, and whether he can be held liable for someone throwing an object that hit an unnamed police officer, who filed the suit.
There are several aspects of this that make it pretty remarkable. First, the judge, Don Willet. is very conservative. Second, he initially voted that McKesson can be held liable and has now suddenly changed his mind and filed a dissenting opinion in the case. Third, the ACLU attorneys representing McKesson have already filed a cert petition with the Supreme Court and is awaiting a decision on whether they’ll hear the appeal. Willet’s change of mind does not change the outcome of the case, but it does add a dissent, making it more likely that the Supreme Court will accept the case.
I think they would have accepted it anyway because the conclusion flatly contradicts nearly a century of judicial precedent. The key case here is Brandenburg v. Ohio, in 1969. It established the limit of free speech regarding incitement to violence and established a three prong test. In order to punish a speaker or hold them liable for someone else’s violent action, they must prove that the speaker intended to spark violence, and that there was a likelihood of imminent lawless action. This standard is very difficult to meet and that is intentional on the part of the court.
In this case, neither of those elements are present and the appeals court really screwed this up. I can’t imagine even the current court upholding the appeals court ruling. And you know who really shouldn’t want it upheld? Trump. Unlike McKesson, Trump has encouraged security guards and his fans at campaign rallies to rough up protesters several times. And they have sometimes taken him seriously and done exactly that. If the Supreme Court either denies cert or takes it and upholds the decision, he would be legally liable for a number of violent incidents at his rallies.