Freedom of Association and Assembly / Protests
Vajnai v. Hungary
Decision Pending Mixed Outcome
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The Supreme Court of the United States held in a per curiam decision that the Court of Appeals for the Fifth Circuit should not have adopted a novel “theory of personal liability” with First Amendment implications without seeking a “certified question” from the Louisiana Supreme Court in a case where the organizer of a protest was successfully sued for damages caused by an unknown third party to whom he was related only by mere participation in the protest. Petitioner Deray Mckesson appealed to the Supreme Court of the United States the decision of the Court of Appeals for the Fifth Circuit which had rejected his argument that he could not be liable under the First Amendment for damages made in the context of a social protest by an unknown third party when he led protesters to occupy the highway. The Court of Appeals for the Fifth Circuit held that Mckesson was not protected by the First Amendment for the “downstream consequences” of the unlawful obstruction of a highway that he allegedly directed. The Supreme Court of the United States held that under the unusual circumstances of this case, the Court of Appeals for the Fifth Circuit should not have ventured into such a novel and uncertain area of tort liability with First Amendment repercussions without seeking guidance on the issue from the Louisiana Supreme Court. Accordingly, the Supreme Court of the United States vacated the decision of the Court of Appeals for the Fifth Circuit and ordered it to decide the case after making certified questions to the Louisiana Supreme Court.
Petitioner DeRay Mckesson organized a protest against the shooting of a local police officer in Baton Rouge, Louisiana. Participants of the protest occupied the highway in front of police headquarters. Security forces began to make arrests in order to clear the highway. In that context, an unknown person threw a piece of rock that struck the face of (unnamed) police officer “John Doe,” who suffered serious injuries, including brain trauma and loss of teeth. The perpetrator was not identified.
Officer Doe sued DeRay Mckesson for damages seeking redress for the injuries he sustained “on the theory that he negligently staged the protest in a manner that caused the assault” [para. 2].
The District Court dismissed the case on the ground that the activity undertaken by DeRay Mckesson was protected by the First Amendment of the United States Constitution.
The Court of Appeals for the Fifth Circuit reversed the District Court’s judgment. The Court conceded that Louisiana law does not -in principle- impose a general duty to protect others from the criminal activities of third parties, citing the case Posecai v. Wal-Mart Stores, Inc. (La. 11/30/99), 752 So. 2d at 752 So. 2d. However, the majority of the court held “that a jury could plausibly find that Mckesson breached his ‘duty not to negligently precipitate the crime of a third party’ because ‘a violent confrontation with a police officer was a foreseeable effect of negligently directing a protest’ onto the highway” [para. 3].
The majority of the Court of Appeals for the Fifth Circuit also rejected DeRay Mckesson’s argument that NAACP v. Claiborne Hardware Co, 458 U. S. 886 (1982), prohibits liability for speech-related activities that negligently cause a violent act unless the defendant specifically intended the violent act to occur. The court held that “the First Amendment imposes no barrier to tort liability so long as the rock-throwing incident was ‘one of the consequences of tortious activity, which itself was authorized, directed, or ratified by Mckesson in violation of his duty of care’” [para. 4]. According to the Court of Appeals for the Fifth Circuit, Mckesson was not protected by the First Amendment for the “downstream consequences” of the illegal obstruction of a highway that he allegedly directed.
Mckesson appealed this decision before the Supreme Court of the United States.
The Supreme Court of the United States had to decide whether the theory of personal liability adopted by the Court of Appeals for the Fifth Circuit violated the First Amendment of the United States Constitution. In a Per Curiam decision, the Supreme Court held that, given the unusual circumstances of the case, the Court of Appeals for the Fifth Circuit should not have ventured into such a novel and uncertain area of tort liability with First Amendment implications without seeking guidance from the Louisiana Supreme Court on the issue.
Petitioner Mckesson argued that he could not be personally liable for the violent act of an unknown individual whose only relationship to him was attendance at the protest.
To begin with, the Supreme Court of the United States — citing Claiborne Hardware 458 U. S.— stated that “when violence occurs during activity protected by the First Amendment, that provision mandates ‘precision of regulation’ with respect to ‘the grounds that may give rise to damages liability’ as well as ‘the persons who may be held accountable for those damages’” [para. 6].
The Supreme Court of the United States held that “the Fifth Circuit’s interpretation of state law is too uncertain a premise on which to address the question presented” [para. 7]. According to the Court, while the constitutional issue submitted is undeniably important, it would only be implicated if Louisiana law permits reparations or damages in circumstances such as those in this case.
The Court held that “the dispute thus could be ‘greatly simplifie[d]’ by guidance from the Louisiana Supreme Court on the meaning of Louisiana law” [para. 7]. Then, the Court stated that the Rules of the Louisiana Supreme Court contain a rule that such “guidance” may be obtained through “certified questions” on dispositive issues of Louisiana law.
According to the Supreme Court of the United States, certified questions are not mandatory, but, in exceptional cases, certification is advisable before addressing a constitutional question. On this point, the Court held that the United States legal system can be defined as a system of cooperative judicial federalism. Under these premises, the Court held that there are two aspects of this case that demonstrate that the Court of Appeals for the Fifth Circuit “should have certified to the Louisiana Supreme Court the questions (1) whether Mckesson could have breached a duty of care in organizing and leading the protest and (2) whether Officer Doe has alleged a particular risk within the scope of protection afforded by the duty, provided one exists” [para. 9].
Furthermore, the Court explained two additional reasons why certification by the Louisiana Supreme Court is necessary in this case.
First, the Court stated that “the dispute presents novel issues of state law peculiarly calling for the exercise of judgment by the state courts” [para. 10]. According to the Court, for a federal court to impose a duty under Louisiana law, various factors must be considered (e.g., moral, social, and economic factors) and that may be properly addressed by state court certification to avoid speculation.
Second, the Court held that certification could ensure that any conflict in this case between state law and the First Amendment is not hypothetical.
For these reasons, the Supreme Court of the United States held that “under the unusual circumstances we confront here, we conclude that the Fifth Circuit should not have ventured into so uncertain an area of tort law -one laden with value judgments and fraught with implications for First Amendment rights- without first seeking guidance on potentially controlling Louisiana law from the Louisiana Supreme Court” [para. 11].
Finally, the Court granted the petition for writ of certiorari, vacated the judgment of the Court of Appeals for the Fifth Circuit, and remanded the case for a new decision consistent with this opinion.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The Supreme Court of the United States’s decision protects free speech by vacating the Court of Appeals for the Fifth Circuit’s decision that established a novel theory of personal tort liability for the acts of third parties in the context of public protests. While the Supreme Court refrained from deciding the merits of the case, i.e., whether the Court of Appeals for the Fifth Circuit decision violated the First Amendment of the United States Constitution, leaving uncertainty about a novel tort liability regime that could have a deterrent effect on free speech, it did require further clarification of Louisiana tort law by requiring some certified questions from the Louisiana Supreme Court on the novel and uncertain issues in the case.
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