The Lawsuit Against Black Lives Matter And The Central Meaning Of The First Amendment

Andrew Kelly / Reuters One of the police officers who was grievously wounded last July in Baton Rouge, Louisiana, in a brutal attack by Gavin Long, a black, 29-year-old former Marine, filed an action on Friday for damages against the Black Lives Matter movement and several of its leading activists, including DeRay Mckesson and Johnetta Elzie, alleging that they negligently caused the attack. In the Supreme Court’s first decisions on the meaning of the First Amendment, during World War I, the Court held that any person whose speech had a “bad tendency” could be held civilly or criminally liable. The case involved the prosecution of a member of the Ku Klux Klan who declared at a Klan rally that it might be necessary for members of the Klan to take “revengence” if the government “continues to suppress the white, Caucasian race.” The Supreme Court held that the defendant’s speech could not constitutionally be punished and that the First Amendment forbade the government to restrict even speech that expressly advocates unlawful behavior “except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” That has been the governing law ever since. But, you might ask, “Why?” Why shouldn’t the First Amendment permit the Black Lives Matter defendants to be held liable because they allegedly should have known that their speech condemning police attacks on African Americans might conceivably have led someone at some time in the future to shoot six policeman? If those who endorse the Black Lives Matter movement could potentially be held liable for criticizing police misconduct because their speech might indirectly lead someone to kill a policeman, then our public discourse will be seriously crippled.