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Editorial (N.Y) Daily News: The Supreme Court's sticky web: The First Amendment protects social media - The Daily News Online

WASHINGTON On Monday, the U.S. Supreme Court heard arguments over state governments role in dictating how Big Tech companies like Google and Meta moderate speech on their social-media platforms. The cases before the court (NetChoice, LLC v. Paxton and Moody v. NetChoice, LLC) are in response to Republican-led Texas and Florida state laws that forbid platforms from taking down or even deemphasizing any posts based on their viewpoints.

Lawyers representing the technology companies argued that these laws infringe on platforms First Amendment rights by forcing a site like Facebook to host content and users that violate the platforms terms of service, including posts that violate company rules against hate speech and election disinformation. Lawyers representing Texas and Florida countered with the novel and untested idea that platforms that serve hundreds of millions of U.S. residents should be considered common carriers. As such, the government lawyers say, they should be subject to content-moderation restrictions.

Free Press Senior Counsel and Director of Digital Justice and Civil Rights Nora Benavidez said:

In this pivotal election year, social media is already having a significant impact on our democracy. There is plenty of room to critique social-media companies failure to keep platform policies and adequate staffing in place to maintain integrity on their services, particularly at a time when dozens of countries around the world are holding elections.

While we believe that the platforms should strengthen their content-moderation policies, the First Amendment is clear: Its not the governments role to impose rules on how companies like Meta and Google should accomplish this. Getting government involved in this way would cause far more problems than it would cure. It would ratchet up the amount of hate and disinformation online instead of reducing it and would undermine both the meaning and the intent of the First Amendment.

From fanning the flames of extremism ahead of January 6, 2021, to entrenching polarization around issues like the ongoing violence in Gaza, social-media companies have a crucial role in shaping public attitudes. But regulation that places control of private companies content-moderation decisions in the hands of state officials runs afoul of the First Amendment and risks forcing platforms to keep lies and other violative content up. As we head into one of the most significant election years in recent memory, regulatory schemes to force platforms to keep false and harmful content up are not the answer, especially when those unconstitutional mandates are predicated on penalties that state actors impose for decisions concerning private speech.

One of the fundamental values underpinning the First Amendment is that our government cannot dictate the terms of public debate. Thats exactly what Texas and Florida have tried to do in bolstering state authority to intervene into private speech. The potential future we see is troubling: State officials would be able to mandate that platforms keep dangerous content online under the guise of protecting free expression. The natural byproduct wouldnt be a flourishing of free speech; the result would be more misinformation, more extremism and more hate that platforms would leave up to avoid being punished. It would offer a convenient excuse for inaction for platforms that already have a track record of negligence in leaving up harmful content. That failure to moderate sufficiently is even worse in non-English languages, and harmful content is left up longer when it targets LGBTQIA+ communities and other vulnerable user groups.

Tech companies must commit to platform integrity especially in light of how online lies and calls for violence frequently lead to real-world harms. But an unconstitutional effort to regulate platforms into becoming free-for-alls of hate and political disinformation is the wrong path forward.

Background: In December, Free Press released Big Tech Backslide: How Social-Media Rollbacks Endanger Democracy Ahead of the 2024 Elections, a report that documents the retreat of Meta, Twitter and YouTube from earlier pledges to protect election integrity.

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In Supreme Court, Texas and Florida's Argument Against Big Tech Content Moderation Runs Afoul of First Amendment - Free Press

Should the online platform Substack be allowed to ban Nazis? Not should it ban Nazis. But should it be legally allowed to ban Nazis?

Im asking on behalf of nine justices of the Supreme Court, not to mention the billions of people who use the internet. On Monday, the court heard oral arguments in two cases, NetChoice v. Paxton and Moody v. NetChoice, that could dramatically reshape online speech by determining whether the First Amendment protects the content moderation decisions of social media platforms.

At issue in the cases are two state laws one from Florida and one from Texas that constrain online content moderation decisions. Roughly speaking, the Florida law prohibits social media companies from permanently banning politicians and journalistic enterprises, while the Texas law prohibits them from banning users on the basis of viewpoint.

That means, for example, that the Florida law would prohibit a platform from permanently banning a politician running for office in the state as a literal Nazi. The Texas law would bar a platform from banning pro-Nazi speech as long as it allowed anti-Nazi speech.

In addition to impacting online speech, the NetChoice cases could reshape First Amendment law in ways that matter to the press. Based on Mondays argument, journalists should watch the courts decisions for two things: First, to see if the court limits the ability to challenge laws that violate First Amendment rights as facially invalid, that is, unconstitutional in all circumstances; and second, how it treats a landmark press freedom decision, Miami Herald v. Tornillo.

First Amendment faceoff

Several justices unexpectedly raised a legal issue during Mondays arguments about the plaintiffs facial challenge to the Florida law that could have implications for the press.

In a facial challenge, a plaintiff argues that a law can never be applied in a way that is constitutional. But the justices asked whether the Florida law might have some applications that are actually constitutional. If so, the justices asked, should the court reject the plaintiffs claim and require it to bring an as-applied challenge, arguing that the law is unconstitutional in more specific ways?

The problem with that is that its easy to think of potential constitutional applications of broad and ambiguous laws, precisely because no one understands exactly what they mean.

A decision rewarding bad statutory drafting by allowing otherwise unconstitutional laws to survive based on hypothetical scenarios could, as the lawyer for the platforms argued, be the worst First Amendment case in this Court's history. It would allow legislatures to put one constitutional provision in an otherwise totally unconstitutional law and avoid having the law struck down wholesale.

For example, an Oklahoma lawmaker recently proposed a totally unconstitutional law that would require journalists to be licensed and subjected to criminal background tests and drug tests. Theres nothing constitutional about this bill. But a more shrewd lawmaker in a state intent on harming the press could cause mischief by writing ambiguous and possibly constitutional provisions into an otherwise completely unconstitutional bill, just to make it harder for courts to strike it down. Imagine, for instance, that the Oklahoma law required drug testing not just for reporters and editors, but also for delivery truck drivers.

Its not clear if the court plans to go down this road in its decisions in NetChoice. But based on the questions at oral argument, journalists should at least be concerned that the court may be thinking about creating barriers to First Amendment facial challenges that could impact cases involving the press in the future.

Press precedent holds up

In contrast, journalists can be reassured by the courts treatment during Mondays argument of Miami Herald v. Tornillo. In Tornillo, the court held that the First Amendment protects newspapers choices about what to publish or not publish, also known as the exercise of editorial discretion or judgment. In the NetChoice cases, the social media platforms argue that their content moderation decisions are the exercise of editorial discretion and therefore protected by the First Amendment.

It may seem odd for the platforms to rely on a press freedom decision to make their case before a Supreme Court that talks about the news media in increasingly hostile terms. But thankfully, most discussion of Tornillo during Mondays oral argument was positive. Justices Kavanaugh and Barrett, in particular, returned again and again to the First Amendments protections for the editorial discretion exercised by news outlets. Even justices that seemed hostile to the social media companies, like Justice Alito, seemed to accept that the First Amendment protects newspapers editorial judgments.

However, the devil may be in the details of whatever opinion the court ultimately writes. Even if the court applies Tornillo to content moderation, theres a risk that it could weaken the First Amendment protection for editorial discretion by saying that the government has to meet only a low or middling burden to overcome it. Theres no specific indication from the oral argument that the court plans to do that, but journalists should watch out for any tinkering with Tornillo in the courts decisions here.

Whatever the outcome of the NetChoice cases, states will almost certainly persist in trying to punish social media companies for hosting content that lawmakers dislike. Journalists should be wary. While social media is the political punching bag for now, there are plenty of politicians who want to go after the press using similar legal theories and complaints. If First Amendment precedent falls in social media cases, it will make it easier for lawmakers to target journalists next.

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Supreme Court social media cases could put some First Amendment claims in the firing line - Freedom of the Press Foundation

Americans have a constitutional right to express themselves freely, but a newpoll finds that many want to limit that freedom to those who offend them.

The Foundation for Individual Rights and Expression and Dartmouth Colleges Polarization Research Lab reported Tuesday that 31% of adults surveyed said the First Amendment goes too far in the rights it guarantees.

Nearly a third of Republicans and a third of Democrats said they completely or mostly agreed with the statement.

The survey also found that most respondents wanted to ban public speeches and college professors from expressing the ideas that most offend them.

Responding to a list of controversial statements that the First Amendment protects, 19% of respondents described All whites are racist oppressors as the most offensive, making it the one they most wished to censor.

Several other expressions followed close behind this one on the most offensive list: 18% named America got what it deserved on 9/11, 12% flagged January 6th was a peaceful protest and 11% chose Abortion should be completely illegal.

Farther down the list, 4% picked From the river to the sea Palestine will be free a slogan in recent pro-Palestinian protests against Israel that some Jewish groups have condemned as antisemitic.

The survey found that 52% of respondents said their community should ban public speeches promoting the statement they deemed most offensive. Another 69% said their local college should not allow a professor who promoted the idea to teach classes.

Those results were disappointing, but not exactly surprising, said Sean Stevens, FIREs chief research adviser. Here at FIRE, weve long observed that many people who say theyre concerned about free speech waver when it comes to beliefs they personally find offensive. But the best way to protect your speech in the future is to defend the right to controversial and offensive speech today.

Mr. Stevens said the Philadelphia advocacy group could not explain what drove respondents to favor censoring offensive views. He noted its the first time FIRE and Dartmouth have administered the survey.

Other key findings:

Asked whether people are able to freely express their views, 69% said free speech in America is heading in the wrong direction, compared to 31% who believe it is on the right track.

Just 25% of adults described the right to free speech today as either very or completely secure, compared to 29% who said it is not at all secure.

Nearly half of Democrats and 26% of Republicans described free speech as heading in the right direction. More than a third of Republicans said free speech is already secure, compared to 17% of Democrats.

However, respondents expressed greater hesitation about suppressing written expression and livelihood.

The survey found that 59% of respondents opposed removing public library books containing the idea they found most offensive. Another 72% said employers should not fire people who express such beliefs from their jobs.

According to researchers who conducted the survey, partisan animosity toward free speech threatens the stability of the U.S. political system.

Polarization not only divides Americans on policy, but it fractures our assessments of the stability of the bedrock features of our democracy, said Sean Westwood, the director of Dartmouths Polarization Research Lab.

Dartmouths lab and FIRE conducted the poll online Jan. 12-19, surveying 1,000 members of a YouGov panel. The margin of error was plus or minus 3 percentage points.

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One-third of adults say the First Amendment 'goes too far' - Washington Times

The Supreme Court on Monday waded into the thorny intersection of social media companies and free speech, struggling to figure out whether state laws seeking to stop the tech giants censorship is worse than the censorship itself.

Justices seemed skeptical of the states cases that they can control how Facebook and YouTube police their pages, but they were troubled by the tech companies claims that they should be able to censor emails sent through Gmail or direct messages and WhatsApp based on the political beliefs of users.

The companies said they would have to rethink their operations, depending on how the justices rule.

Paul Clement, arguing on behalf of NetChoice, a group of internet firms challenging the state laws, said companies might have to err on the side of more suppression.

That could mean companies would take down pro-Israel speech because they dont want to allow antisemitic speech and would have to take down suicide prevention messages because they dont want to carry self-harm messages.

Wed basically have to eliminate certain areas of speech entirely, he said.

Many of the justices were sympathetic to those arguments, particularly to the point that its better to have the companies policing their forums with their own rules than to have government agencies step in.

Do you want to leave it with the government, with the state, or do you want to leave it with the platforms? said Chief Justice John G. Roberts Jr. The First Amendment has a thumb on the scale when that questions asked.

The battle involves laws Florida and Texas enacted in 2021 in the wake of the 2020 election and amid the censorship battles of the pandemics early years when Twitter, Facebook and YouTube were scouring their sites for content they deemed inappropriate, inaccurate or harmful.

Egged on by the federal government, the social media giants limited the reach of posts questioning the push for COVID-19 vaccination and wondered whether the coronavirus had escaped from a Chinese lab. Twitter blocked access to a New York Post article revealing the Hunter Biden laptop, wrongly claiming it was Russian disinformation.

Texas law prohibits social media companies from removing and moderating content some might find offensive or hateful. It also requires disclosure of some business practices, such as algorithms used to promote content.

Floridas law calls for fines of up to $250,000 per day for large social media companies that deplatform political candidates.

One federal appeals court upheld Texas law, and another ruled against Floridas legislation. Both laws are on hold pending Supreme Court action.

The case underscored the central role of the internet in the 21st century and poked at several areas where the law is struggling for answers.

What do you do with the fact that now, today, the internet is the public square? said Justice Ketanji Brown Jackson.

The Biden administrations attorney and the attorney for the internet companies told the justices during lengthy arguments that if the government did what the companies are doing, it would be censorship.

When its done by private actors, its not censorship because the companies have their own First Amendment speech rights that the state laws trample.

When I think of Orwellian, I think of the state. Not private sector, not private individuals, said Justice Brett M. Kavanaugh.

The problem, said Justice Clarence Thomas, is that Congress in Section 230 of the Communications Decency Act gave the tech companies special liability protections over what people post on their sites, but with the understanding that the companies werent policing those posts over viewpoints.

Now you are saying that you are engaged in editorial discretion and expressive conduct. Doesnt that seem to undermine your Section 230 argument? Justice Thomas prodded.

Mr. Clement said Congress wanted freedom from liability but also robust experimentation, which includes setting rules for companies forums.

Justice Samuel A. Alito Jr. said that sounded like a heads-I-win, tails-you-lose proposition.

Its your message when you want to escape state regulation, but its not your message when you want to escape liability under tort law, Justice Alito said.

The states attorneys pushed the justices to recognize the tech platforms as common carriers, akin to delivery or telephone companies, which are not allowed to alter service based on a customers viewpoint.

Henry Whitaker, solicitor general of Florida, said the companies dont have a message, so theres no First Amendment violation for the platforms.

Internet platforms today control the way millions of Americans today communicate with each other and the world, he said.

Chief Justice Roberts was skeptical, saying the other businesses operated as monopolies and users didnt have alternatives.

I am not sure the same thing applies with respect to social platforms, he said.

Justice Elena Kagan noted that the companies have their own rules for monitoring speech.

They do seem to take them seriously, she said. They are making content judgments about the kind of speech they think they want on the site.

Part of the problem was the way the cases came to the high court.

Both state laws were challenged on their face, which means the internet companies were saying they were unconstitutional in nearly every application. That also meant many key questions werent answered, including which companies and platforms are covered.

I think thats a problem in this case, Justice Jackson said. Were not all aware of the facts of whats happening.

The cases are Moody v. NetChoice and NetChoice v. Paxton. Ashley Moody is Floridas attorney general, and Ken Paxton is Texas attorney general.

Decisions are expected by the end of June.

Link:
Supreme Court digs into Big Tech censorship and First Amendment - Washington Times

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The Supreme Court's sticky web: The First Amendment protects social media - Shelbynews

WASHINGTON - The most important First Amendment cases of the internet era, to be heard by the Supreme Court on Monday, may turn on a single question: Do platforms like Facebook, YouTube, TikTok and X, formerly Twitter, most closely resemble newspapers or shopping centers or phone companies?

The two cases arrive at the court garbed in politics, as they concern laws in Florida and Texas aimed at protecting conservative speech by forbidding leading social media sites from removing posts based on the views they express.

But the outsize question the cases present transcends ideology. It is whether tech platforms have free speech rights to make editorial judgments. Picking the apt analogy from the court's precedents could decide the matter, but none of the available ones is a perfect fit.

https://www.startribune.com/supreme-court-to-decide-how-the-first-amendment-applies-to-social-media/600346014/?refresh=true

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Supreme Court to decide how the First Amendment applies to social media - redlakenationnews.com

Washington, DC, Feb. 08, 2024 (GLOBE NEWSWIRE) -- The United States Mint (Mint) announced today that it is releasing the fourth coin in the five-year First Amendment to the United States Constitution Platinum Proof Coin Series on February 15, 2024, at noon (EST). Mintage is limited to 12,000 coins. Orders are limited to three units per household for the first 24 hours.

Launched in 2021 and continuing through 2025, the First Amendment to the United States Constitution Platinum Proof Coin Series reflects the five freedoms enumerated in the First Amendment to the United States Constitution: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

This series uses the lifecycle of the oak tree from seedling to a mighty oak as a metaphor for our countrys growth as a Nation that values freedom. Liberty grows to a thing of strength and beauty from a seedour Bill of Rights. Each of the freedoms enumerated in the First Amendment contributes to the growth and development of the Nation.

Artistic Infusion Program (AIP) Designer Donna Weaver created all obverse (heads) designs in this series, and United States Mint Chief Engraver Joseph Menna sculpted them.

The 2024 obverse design showcases several types of oak leaves assembled between the inscription WITH THE RIGHT TO ASSEMBLE LIBERTY SPREADS. Additional inscriptions are IN GOD WE TRUST, E PLURIBUS UNUM, and 2024.

The common reverse design for this series, by AIP Designer Patricia Lucas-Morris, depicts an eagle in flight, an olive branch in its talons. Inscriptions are UNITED STATES OF AMERICA, $100, 1 OZ., and .9995 PLATINUM. United States Mint Medallic Artist Don Everhart sculpted the reverse.

Each coin is encapsulated then placed in a stylish clamshell and presentation box. An image of the obverse design is incorporated on the outer packaging sleeve and on the Certificate of Authenticity.

As with all Mint products containing a precious metal, this coin will be priced according to the range in which it appears on the Pricing of Numismatic Gold, Commemorative Gold, and Platinum and Palladium Products table. Current pricing information is available online at https://catalog.usmint.gov/on/demandware.static/-/Sites-USM-Library/default/dw2021515f/images/PDFs/2023-Pricing-Grid.pdf

To sign up for Remind Me alerts for the 2024 First Amendment to the United States Constitution Platinum Proof Coin Right to Assemble, visithttps://catalog.usmint.gov/first-amendment-to-the-united-states-constitution-2024-platinum-proof-coin-right-to-assemble-24EJ.html/

Previous releases in this series include coins with designs recognizing Freedom of Religion (2021), Freedom of Speech (2022), and Freedom of the Press (2023). The final coin in the seriesRight to Petitionwill be released in 2025.

Additional products in the Mints collection of American Eagle Platinum Proof Coins are available athttps://catalog.usmint.gov/coins/precious-metal-coins/platinum/

Note: To ensure that all members of the public have fair and equal access to United States Mint products, the United States Mint will not accept and will not honor orders placed prior to the official on-sale date of February 15, 2024, at noon EST.

About the United States Mint

Congress created the United States Mint in 1792, and the Mint became part of the Department of the Treasury in 1873. As the Nations sole manufacturer of legal tender coinage, the Mint is responsible for producing circulating coinage for the Nation to conduct its trade and commerce. The Mint also produces numismatic products, including proof, uncirculated, and commemorative coins; Congressional Gold Medals; silver and bronze medals; and silver and gold bullion coins. Its numismatic programs are self-sustaining and operate at no cost to taxpayers.

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United States Mint Announces Release of Fourth Coin in Platinum Proof Series Celebrating Five Freedoms of the First ... - GlobeNewswire

The United States Supreme Court will hear arguments this week on whether to uphold the Colorado Supreme Court decision barring Trump from the 2024 Colorado primary ballot. A UNM Law professor is among a group of First Amendment scholars arguing the decision should be upheld.

Maryam Ahranjani

Maryam Ahranjani, the Ron and Susan Friedman Professor of Law and an expert in constitutional rights, criminal law and procedure, and education law, joined First Amendment scholars and attorneys from around the country in filing an amicus brief last week.

The brief asserts two main points: that the Supreme Court should reject Trumps argument that excluding him from the Colorado primary ballot violates his free speech rights, and it should also reject the political-party-related amici James Madison Centers argument that Trumps disqualification violates its right of association.

The scholars argued that the First Amendments speech protections do not supersede the narrow scope of Section 3 of the Fourteenth Amendment, which states that people who have taken a Constitutional oath and then participated in an insurrection cannot hold office again, and that arguing that it does will strip courts of their ability to view speech in context when determining whether that speech amounts to engagement in insurrection.

Section 3 of the Fourteenth Amendment: No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

When provisions of the Constitution potentially conflict with one another, traditional constitutional analysis involves harmonization; in other words, no one provision automatically supersedes another.

The Fourteenth Amendment was ratified after the Civil War to prevent similar conflicts in the future from reaching the political arena, according to the brief. The amici encourage the Court to harmonize Section 3 of the Fourteenth Amendment with the First Amendment and give effect to each whenever possible, rather than allow the First Amendment to supersede or obliterate Section 3, and that a newer, more specific amendment should be given precedence when harmony is not possible.

The amici cited the 1969 Brandenburg v. Ohio decision, which states that speech directed to inciting or producing imminent lawless action is not protected by the First Amendment, and argued that speech should be reviewed in the context of how it was delivered, surrounding events and the intended audience.

Led by Counsel for Amici Steven A. Hirsch, in addition to Ahranjani, the team of luminary scholars includes Floyd Abrams, Bruce Ackerman, Erwin Chemerinsky, Alan Chen, Kent Greenfield, Martha Minow and Geoffrey R. Stone. The same team filed an amicus brief in the related Colorado Supreme Court case, Anderson v. Griswold, in November.

Ahranjanis involvement in these constitutional law cases began when she was approached by Citizens for Responsibility and Ethics in Washington (CREW) to participate in an amicus brief in the Couy Griffin case last summer. In that case, a New Mexico judge ruled the then-Otero County Commissioner must be removed from office for his involvement in the insurrection. She has co-authored two Op-eds about the Disqualification Clause with Donald K. Sherman, CREWs Executive Vice President and Chief Counsel.

The brief cited 32 court cases along with several Constitutional amendments and articles, U.S. statutes, Supreme Court rulings and other authorities.

Read the amicus brief here. Oral arguments in the Supreme Court case are scheduled for Feb. 8.

Original post:
UNM Law professor joins amicus brief in Trump v. Anderson Supreme Court Case - UNM Newsroom

A renegade federal appeals court one dominated by MAGA-aligned judges who routinely read the law in ways that even the current, very conservative Supreme Court finds untenable has spent the last half-decade harassing DeRay Mckesson, a prominent civil rights activist and an organizer within the Black Lives Matter movement

As part of this crusade, two of the Fifth Circuits judges effectively eliminated the First Amendment right to organize a protest in a case known as Doe v. Mckesson.

Mckessons case has already been up to the Supreme Court once, and the justices strongly hinted in a 2020 opinion that the Fifth Circuits attacks on Mckessons First Amendment rights should end labeling this case fraught with implications for First Amendment rights. But the Fifth Circuit did not take the hint, issuing a new opinion last July reaffirming its attack on First Amendment-protected political protests.

Now the case is before the Supreme Court again, and Mckessons lawyers want the justices to restore the First Amendment as fast as they possibly can.

In 2016, Mckesson helped organize a protest near Baton Rouges police department building, following the fatal police shooting of Alton Sterling in that same Louisiana city. At some point during that protest, an unknown individual threw a rock or some other hard object at a police officer, identified in court documents by the pseudonym Officer John Doe.

Sadly, the object hit Doe and allegedly caused injuries to his teeth, jaw, brain, and head, along with other compensable losses.

There is no excuse for throwing a rock at another human being, and whoever did so should be held responsible for their illegal act, including serious criminal charges. But even Judge Jennifer Elrod, the author of the Fifth Circuits most recent opinion targeting Mckesson, admits that it is clear that Mckesson did not throw the heavy object that injured Doe.

Nevertheless, Doe sued Mckesson, claiming that, as the organizer of the protest where this injury occurred, Mckesson should be liable for the illegal action of an unidentified protest attendee. But that is simply not how the First Amendment works. The Supreme Court held in NAACP v. Claiborne Hardware (1982) that civil liability may not be imposed merely because an individual belonged to a group, some members of which committed acts of violence.

It should be obvious why protest leaders must not be held legally responsible for the actions of random protest attendees. No one will ever organize a political protest if they know that they could face financially devastating liability if a reckless or violent individual happens to show up.

Indeed, as Judge Don Willett, a Fifth Circuit judge who dissented from Elrods opinion, pointed out, Elrods approach could potentially force protest organizers to pay for the unlawful acts of counter-protesters and agitators who show up for the very purpose of undermining the protest organizers political goals. Under Elrods opinion, Mckesson could be held liable if the unknown rock-thrower turns out to be a member of the Ku Klux Klan who showed up for the very purpose of undermining the Black Lives Matter movement by associating them with violence.

In their petition to the Supreme Court, Mckessons attorneys make an audacious ask claiming that Elrods decision is so flatly contrary to this Courts controlling precedent to be appropriate for summary reversal.

A summary reversal is the judicial equivalent of a spanking. It means that the lower courts decision was so erroneous that the justices decided to skip a full briefing or an oral argument in a case, and issue a permanent order overturning that lower courts decision.

This process is rarely used, and it is distinct from the temporary orders the Court frequently hands down on its so-called shadow docket. The Supreme Court typically requires six justices to agree before summarily reversing another courts decision.

Nevertheless, such a spanking is warranted in this case. Elrods opinion flouts exceedingly well-established First Amendment law. And it does so in a way that would make organized mass protests impossible, because anyone who tried to organize one would risk bankruptcy.

To understand just how ridiculous Elrods decision is, and how egregiously she defies the Supreme Courts caselaw, its helpful to start with the facts of the Claiborne case.

Like Mckesson, Claiborne involved a civil rights activist who organized a protest that allegedly included some violent individuals. In 1966, Charles Evers was the field secretary of the Mississippi chapter of the NAACP. In that role, he was the principal organizer of a boycott against white merchants in Claiborne County.

The Mississippi Supreme Court claimed that some of the individuals who joined this boycott also engaged in acts of physical force and violence against the persons and property of certain customers and prospective customers of these white businesses. Evers, meanwhile, allegedly did far more to encourage violence than DeRay Mckesson is accused of in his case. He allegedly gave a speech to potential customers at these stores, where he said that if we catch any of you going in any of them racist stores, were gonna break your damn neck.

The Supreme Court nonetheless held that this emotionally charged rhetoric ... did not transcend the bounds of protected speech. Claiborne also warned that courts must show extreme care before imposing liability on a political figure of any kind.

That said, the Courts decision also listed three limited circumstances when a protest leader may be held liable for the violent actions of a protest participant:

There are three separate theories that might justify holding Evers liable for the unlawful conduct of others. First, a finding that he authorized, directed, or ratified specific tortious activity would justify holding him responsible for the consequences of that activity. Second, a finding that his public speeches were likely to incite lawless action could justify holding him liable for unlawful conduct that in fact followed within a reasonable period. Third, the speeches might be taken as evidence that Evers gave other specific instructions to carry out violent acts or threats.

None of these circumstances are present Mckesson. To the contrary, the Fifth Circuit admitted in an earlier decision in this very case that Officer Doe has not pled facts that would allow a jury to conclude that Mckesson colluded with the unknown assailant to attack Officer Doe, knew of the attack and ratified it, or agreed with other named persons that attacking the police was one of the goals of the demonstration.

So how on earth did Elrod arrive at the conclusion that Mckesson could be held liable for the actions of an unknown protest attendee? For starters, she claimed that her court could just add new items to the list of three circumstances that could justify such liability in her Mckesson opinion. According to Elrod, nothing in Claiborne suggests that the three theories identified above are the only proper bases for imposing tort liability on a protest leader.

This is, to put it mildly, a very unusual way to read a Supreme Court opinion that held that threats to break someones neck can be First Amendment-protected speech, which calls for extreme care before targeting protest organizers, and which laid out only three very specific circumstances that might justify an exception. Elrod cites no other court decision that has ever read Claiborne in such a counterintuitive way.

Then, after giving herself the power to invent new exceptions to the First Amendment, Elrod writes that this amendment does not apply where a defendant creates unreasonably dangerous conditions, and where his creation of those conditions causes a plaintiff to sustain injuries.

And what are the dangerous conditions created by Mckesson? Mckesson organized the protest to begin in front of the police station, obstructing access to the building. He did not dissuade protesters who allegedly stole water bottles from a grocery store. And he led the assembled protest onto a public highway, in violation of Louisiana criminal law.

Seriously, she said that the First Amendment begins to fade the minute a protest occupies a street.

Its hard to imagine a more lawless, unpersuasive, and historically ignorant decision than the one Elrod put her name on in the Mckesson case. And if the Supreme Court cant find the votes to reverse that decision, the right to engage in mass protest will become meaningless.

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A new Supreme Court case threatens to take away your right to protest - Vox.com