Everything is Not (Legally) As It Seems

An examination of McKesson v. Doe, and a discussion on the 

importance of critical and legal ability for the United States populace.

Walker Wambsganss

29 May 2024

Introduction

One night in mid-April, I turned on my phone and started looking through my instagram. This is not unlike me – my daily routine has, for better or worse, made it a staple. The practices necessary for catching up on people’s lives, going through their thoughts on their stories, and looking through Reels have become a mainstay for me. I was consummately scouring when I came across a story of a friend who I went to highschool with. It contained a post from a popular sensationalist instagram account, with a caption of his that said “bye first amendment rights.” I was intrigued. 

The post cited a Vox article, which read:

“The Supreme Court effectively abolishes the right to mass protest in three US states”

Now, this was news to me. I was aware of recent rulings that nobody expected to occur, with some being subjectively questionable in the realm of legal scholarship. But alas, the right to protest as outlined in the freedom of speech clause is a fundamental part of the American tradition. To do away with it would be to punish what we were founded upon! So I read on:

“The Supreme Court announced on Monday that it will not hear Mckesson v. Doe. The decision not to hear Mckesson leaves in place a lower court decision that effectively eliminated the right to organize a mass protest in the states of Louisiana, Mississippi, and Texas.”

“Okay, so we have a case, and we have a denial of certiorari. I’ll look at this later.” I said to myself. I read on:

“Under that lower court decision, a protest organizer faces potentially ruinous financial consequences if a single attendee at a mass protest commits an illegal act. It is possible that this outcome will be temporary. The Court did not embrace the United States Court of Appeals for the Fifth Circuit’s decision attacking the First Amendment right to protest, but it did not reverse it either. That means that, at least for now, the Fifth Circuit’s decision is the law in much of the American South.”

Okay okay, I’ve read enough. 

Looking at an instagram post itself for news is easy. Social mediae are meant to disseminate information at lightning speeds, but they also can spread division and patently untrue ideas, as we’ve written about before in prior CCE articles. (Causes and Consequences, Rat Park) In this paper, I aim to examine the ideas that this post, and the commensurate article, are purporting in consultation with Supreme and trial court documents. I will then discuss how ideas like this can become dangerous without a logically equipped American populace. 

Examining McKesson v. Doe

It’s important to examine the background of any issue we see on the news or face ourselves. Given this, I would like to go through the case that this outcry has focused on. Enter: McKesson v. Doe.

The Facts and the District Court’s Opinion

Deray McKesson is a civil-rights activist and leading voice in the Black Lives Matter movement. (CCJ) As an activist, he advocates and protests “to confront the systems and structures that have led to mass incarceration and police killings of Black and other minority populations.” (ibid) In 2016, he organized a protest in Baton Rouge near a Baton Rouge police station “to protest a shooting by a local police officer.” (SCOTUS)

This was all well and good, and everything was civil and peaceful. That is, until it wasn’t. During the protest, police at the station were making arrests to clear the highway next to the station that the protesters were blocking. Blocking a highway like that is illegal under Louisiana law, and officers were making arrests in order to both keep them from being injured by oncoming traffic and keep the roadway clear and safe for motorists. Unfortunately, during these arrests, one of the protesters in attendance went rogue. This protester, which police still cannot pin down to this day, ended up throwing a rock at a police officer in their furor. This rock hit an officer in the face, and, according to the court, caused “devastating injuries in the line of duty, including loss of teeth and brain trauma.” 

This officer is called John Doe in the case. This is likely to shield his identity, as police officers can be targeted by malicious parties if their true identities are known. After physical recovery, Doe sought to recover damages for the injuries he sustained. For this, he decided to sue the organizer of the protest, McKesson, as he thought that this would give him the highest chance of success in litigation. Consequently, Doe filed a civil suit in the Western District Court of Louisiana. 

Doe sued McKesson for negligence. His theory stated that McKesson “negligently staged the protest in a manner that caused the assault.” (Justia ¶ 1) Fortunately for McKesson, the district trial court dismissed this claim, stating that the charge was “barred by the First Amendment.” (ibid ¶ 2) However, when Doe appealed to the Fifth Circuit Court of Appeals, the circuit court reversed… but why?

The Fifth Circuit’s Reasoning

The Fifth Circuit went back to 1998 and cited Boykin v. Louisiana Transit Co., where it quoted that there is a “universal duty on the part of the defendant in negligence cases to use reasonable care so as to avoid injury to another.” (Boykin, “Duty-Risk” (2)) There is no Louisiana law that directly imparts a duty of care upon citizens; however, Louisiana Civil Code states that “[e]very act whatever of man that causes damage to another obliges him by whose fault it happened to repair it.” (State of Louisiana) With this in mind, the Fifth Circuit found that, “a jury could plausibly find that a violent confrontation with a police officer was a foreseeable effect of negligently directing a protest.” (Doe 1) Subsequently, the Fifth Circuit sided with Doe. McKesson appealed to the Supreme Court of the United States. 

An Inconsistent History

Now, this case is littered with procedural history that is weird enough in and of itself. While the recent decision that the Supreme Court just rendered is not the first time that this case has been before them, I would be remiss if I didn’t inform you about what happened before the case that we’re talking about today. Therefore, I will attempt to summarize how the appeals and history of the case went down:

• In 2021, SCOTUS granted a writ of certiorari to McKesson, but only to tell the parties that it was not the right court to hear this case. SCOTUS remanded the case to the Fifth Circuit and instructed the court to send certified questions to the Supreme Court of Louisiana (SCOL) for review. SCOTUS reasoned that “certification [to SCOL] would ensure that any conflict in this case between state law and the First Amendment is not purely hypothetical.” (McKesson 1)

• After the Fifth Circuit's submission of the certified questions, SCOL answered that it “respectfully concur[s], adopting a slightly different analytical approach to the questions posed.”

• Upon certification and answering from SCOL, the Fifth Circuit again took up Doe v. McKesson and reaffirmed its prior holding, saying that McKesson “personally conducted tortious actions: negligently organizing and directing a protest in an unsafe manner, such that it was reasonably foreseeable for the police to respond, and violence to ensue.” After this 2023 ruling, McKesson once again appealed to the Supreme Court of the United States.

So, as they say, if at first you don’t succeed, try try again. Why don’t we see what this second bout revealed?

What SCOTUS Said

After appealing to SCOTUS in 2023, it took nearly a year for our dear justices to respond; however, when they did, the reaction was something akin to that scene from “The Shining” where Wendy Torrance screams when Jack breaks down the door and yells “here’s Johnny!” But what could have been so bad to elicit such a reaction? Well, let’s look back at our little Vox article, shall we? 

The article alleges that the Fifth Circuit’s decision has “effectively eliminated the right to organize a mass protest in the states of Louisiana, Mississippi, and Texas.” Well… that’s bad, but what about dramatic? If we are to be informed readers, then we can’t trust just one source for determinant truth on everything – and certainly can’t trust a Vox article. If there’s a leaky pipe, you don’t just concentrate your efforts on what the water is pouring onto. You investigate the source. So, with that in mind, we should look at the pipe itself. What did SCOTUS say?

First off, let’s address the elephant in the room: the Supreme Court is not hearing the case. 

Second off, let’s look at why. In her opinion for SCOTUS’s denial of writ, Justice Sotomayor noted that “[w]hen [SCOL] took up the question and concluded that state law did allow the claim, the Fifth Circuit once again had to answer the constitutional question.” She then cited the Fifth Circuit’s primetime dissenter, Judge Willett, as saying that “under [the Fifth Circuit’s] decision in NAACP v. Claiborne Hardware Co., 458 U. S. 886 (1982), “a protest leader’s simple negligence is far too low a threshold for imposing liability for a third party’s violence.” (supra SCOTUS pg. 2) This points out an interesting little hypocrisy in the appellate court. It’s nothing particularly dramatic, as courts can and do rule differently with cases with disparate facts yet similar questions; however, this is usually not the case for questions which are so fundamental as constitutional rights. In such cases, the supreme litmus, besides being substantive law, is literally the rulings of the Supreme Court. All other rulings are smaller fish that feed this behemoth. 

The astute reader will notice that I’m not explaining why the Supreme Court denied writ. Why wouldn’t the preeminent American judicial body refuse to hear a case which could “effectively [eliminate] the right to organize a mass protest[?]” (supra Vox) Well, the thing with important questions is that they deserve serious consideration. As such, they deserve serious and wise answers. Just like a mom and a dad don’t want to explain the importance of not biting classmates to a five year old a hundred times because the child wasn’t listening, SCOTUS doesn’t want to take the time to hear a case that it has already answered. That’s right. The reason that the case was denied was because the constitutional question had already been answered in another case. I therefore introduce to you: Colorado v. Counterman. 

Counterman v. Colorado, 600 U.S. ___ (2023)

From 2014 to 2016, Billy Counterman sent “hundreds of Facebook messages” to a local Colorado singer and musician called C.W. (Counterman pg. 4) The decision notes that Counterman’s messages allegedly put C.W. “in fear and upended her daily existence[.]” (ibid pg. 5 ¶ 2) The singer “eventually contacted the authorities[,]” (ibid pg. 1) and Counterman was charged by the State of Colorado. 

Specifically, Colorado charged Counterman with a violation of Colorado Revised Statute 18-3-602(1)(c), which prohibits any person in the state from "[r]epeatedly ... making] any form of communication with another person" in "a manner that would cause a reasonable person to suffer serious emotional distress and does cause that person ... to suffer serious emotional distress." (ibid pg. 5 ¶ 3)

In court, Counterman tried to “dismiss the charge on First Amendment grounds[.]” Interesting take, but let’s read on. Our Facebook Messenger aficionado justified his motion by reasoning “that his messages were not “true threats” and therefore could not form the basis of a criminal prosecution.” (Counterman pg. 6 ¶ 1) 

While our friend’s reasoning looks to be more typical of a Better Call Saul episode than of real life, it’s interesting to see where the Supreme Court, namely Justice Kagan, goes with this exposition. So let’s move onward. 

Colorado prosecuted Counterman under a ‘reasonable person standard.’ This is a standard set by justices when typically examining cases where the facts of the case make the judgment calls they make hairy, and all it really means is that the judges will ask someone, either in a court or in their head, what a reasonable and normal person would do in reaction to the facts of the case. It seems like a perfectly reasonable, detached and logical way to go about things, right? Most times yes, and its ability to give judges the logical awareness required for their duties has earned it a fitting place in the categories of standards called ‘objective standards.’ In short, objective standards only take into account what happened and see how the consequences would affect others. You broke the bowl in the shop, so you’ll buy it. That type of reasoning. It doesn’t take into account that you didn’t mean to break the bowl. 

Now, I’m going to posit an idea to you. The objective standard is an extreme on the standards scale. If we were to have an abacus of standards with two discs, then the objective standard is all the way on the left. Not because of political affiliation – as much as I feel like I know your mind went there – but because that’s how metaphors work. This implies that there is another end of the abacus that we haven’t explored yet. May I introduce to you: the very aptly named subjective standard. 

The subjective standard, as a fitting antithesis, “takes into consideration the mindset of the individual, rather than asking how a reasonable person would have acted under similar circumstances.” (Silverman) This means that instead of “you break it, you buy it,” if you accidentally broke the bowl because your child was pulling on your pants, your baby was crying, and the bowl wasn’t that expensive to begin with, the store could choose to not force you to buy the bowl. 

Now, that was a gross oversimplification, so take it with a grain of salt. That being said, the reason that I mention subjective and objective standards is to give us context for what Justice Kagan says next in the decision. Kagan wrote that “bans on speech have the potential to chill, or deter, speech outside their boundaries.” What she means by ‘bans on speech’ are standards that would governmentally bar certain forms or expression of speech because of how they could be perceived by persons around the speaker. The Supreme Court sided with Counterman because “an objective standard, turning only on how reasonable observers would construe a statement in context, would make people give threats “a wide berth.”” (supra Counterman pg. 13 ¶ 1) As such, the alternative of proving a “reckless standard,” or a process of showing that the defendant knew that their actions or words were harmful and yet proceeded anyways, instead of an objective – possibly arbitrary one was much more favorable to the justices. 

What This Means for McKesson

When Justice Sotomayor released SCOTUS’s second opinion on McKesson, she noted something important. “Two weeks after the Fifth Circuit ruled against McKesson,” SCOTUS released its ruling for Counterman. (supra McKesson pg. 2)What do these have to do with each other, you may ask? As I’m sure you’ve figured out, the connection lies with the mom, dad, and biting five year old we discussed earlier. “Less than two weeks after the Fifth Circuit issued its opinion, the Supreme Court ruled on his constitutional question with Counterman. 

Assumedly, this ruling, while a denial of writ of certiorari, will still force the Fifth Circuit to reconsider its decision. It will likely do so with the Supreme Court’s new recklessness standard in hand and might just hand McKesson the acquittal he’s been fighting for since 2020. We could very well be seeing judicial history being made right in front of us, and there is a good chance that such a new precedent will favor the party many didn’t expect to win. 

But, while we’re on the subject of people not expecting DeRay McKesson to win, let’s look back one more time at that Vox article in retrospect and see how we’ve learned. 

Conclusion

When looking at articles, especially articles from clickbait heavy websites or with headlines closely resembling yellow journalism, we need to keep one question in mind: if what you’re reading isn’t from the source, then who is it from? “Well how would we know?” you may be asking, but that’s the point. 

While it may seem like I’ve made a mountain out of a molehill, the big picture idea is this. Information is only as good as the interpretation of the person receiving it. While it is more than likely by no fault of their own, an interpretation born from ignorance of readers, thinkers, watchers, or hearers alike has a rife likelihood of the underlying information being grossly misunderstood. There are standards for credible information, yes, but it also cuts both ways. In order for us, not just as Americans, but as people to thrive in a society, we must put the information we allow to take to memory and emotion under scrutiny. Without such scrutiny, some bad ideas blossom into beautiful, emotionally fulfilling, but dangerous ideas – because we won’t think to question them. 

That is why I want to leave you with a question – which is more of a challenge: when you read something online that you feel stirred up or emotionally charged by, what are you reading? Are you reading an interpretation, a dramatization, or a direct report from a credible author? Are you looking at the water splashing on the ground, or are you examining the source of the leak?