In a dissent issued on Thursday regarding the denial of a rehearing en banc, Fifth Circuit Judge Don Willett—joined by Judges Carl Stewart, James Graves, Stephen Higginson, Dana Douglas, and Irma Carrillo Ramirez—vented his disagreement with the panel’s action.
The Supreme Court has already described the constitutional issue before us as “undeniably important”: whether the First Amendment allows a negligent-protest theory that substitutes the mere foreseeability of a stranger’s violence for proof of intent. After ten years of litigation, full discovery, and an additional appeal, all threshold hurdles have been cleared. The question is now presented in a clean and straightforward way….
All of the obstacles that previously complicated Supreme Court review in 2020 have disappeared. The state-law uncertainty that prompted the Court’s vacatur has been resolved. Discovery has been completed. The pleading-stage assumptions have been tested. The district court granted final summary judgment. Counterman intervened, and the panel expressly held that this intervention changes nothing. The en banc court has declined to intervene.
The constitutional question is therefore squarely before us and unavoidable: can a political speaker be held liable under a negligence theory for violence by an unidentified stranger without proof that the speaker authorized, directed, ratified, or intentionally incited that violence? Claiborne, Counterman, and Brandenburg answer no. Our court now answers yes….
The Court should grant review and restore the constitutional boundary between advocacy and violence. Political speakers may be held accountable for violence they commit, authorize, direct, ratify, or intentionally incite. But they should not be treated as insurers of a crowd—or as stand-in defendants for an unknown assailant—simply because they were visible, prominent, and closest to the microphone.
This final paragraph is directed to the Supreme Court; the opinion, as is customary in legal writing, uses “the Court” to refer to the Supreme Court and “the court” to refer to the Fifth Circuit itself.
And here are some excerpts from the body of the opinion:
Baton Rouge Police Officer John Ford suffered grave injuries when someone hurled a rock or piece of concrete at him during a political demonstration. The identity of the assailant remains unknown. Nor is there any known link—if any—to DeRay Mckesson. Yet today the court sends Mckesson to trial—not because there is evidence tying him to the assault, but because he was a prominent activist, allegedly helped steer demonstrators onto a roadway, and could have foreseen that disorder might follow.
The First Amendment does not permit prominence to substitute for proof. Under Claiborne, liability for violence committed by another requires evidence that the defendant authorized, directed, or ratified the specific tortious activity—or that his speech was aimed at inciting or producing imminent lawless action and likely to do so under the demanding Brandenburg rule. And Counterman confirms why ordinary negligence cannot perform that role when legal penalties bear on political advocacy at the core of the First Amendment. Negligence supplies neither personal responsibility nor the culpable mental state the Constitution demands.
The panel reaches the opposite result by making four substitutions. An alleged directive to obstruct traffic becomes a directive to assault an officer; prominence in a national movement becomes command over a particular crowd; proximity becomes causation; and foreseeability becomes intent. Those substitutions evade three constitutional requirements: Claiborne demands personal responsibility and direct, proximate causation; Counterman rejects objective negligence and requires a culpable mental state tied to the conduct that triggers liability; Brandenburg requires intent to produce imminent lawless action and a likelihood that the action will occur. The panel supplies none. Taken together, these substitutions erase the constitutional boundary between advocacy and violence.
Unvarnished, the rule is stark: a freestanding tort of negligent protest—liability imposed on Mckesson not for causing Ford’s injury, but for failing to foresee that someone else might cause it.
Nor will the rule stay limited to Mckesson, Black Lives Matter, or protests against police conduct. It could govern every cause and every viewpoint. The most visible speaker might become the ready-made defendant whenever an unidentified person in the crowd—even an interloper or provocateur—engages in violence. The predictable result is self-censorship. Citizens will hesitate to organize, promote, attend, or lend their names to public causes. Civil damages can chill political expression as surely as criminal punishment—and often more effectively….
Ford’s injuries are abhorrent. He deserves a remedy from the person legally responsible. But grievous harm does not erode the First Amendment’s demand for proof. The Constitution does not permit courts to resolve the mystery of an unknown assailant by turning the most recognizable speaker into a substitute defendant.
Those inclined to applaud today’s result should reflect on how the same rule will function in tomorrow’s case. Today’s defendant is connected to Black Lives Matter. Tomorrow’s might be a gun-rights advocate, a pro-life leader, a pastor protesting a government mandate, or parents addressing a school-board meeting. Constitutional rules cannot pivot on the cause, the crowd, or the speaker. The First Amendment must protect advocacy regardless of whether the cause is popular or unpopular. Otherwise, constitutional guarantees become only fair-weather guarantees….
Claiborne arose from a civil-damages judgment that involved both protected advocacy and violence. The Supreme Court reversed and identified three possible bases for liability: (1) unlawful conduct the defendant personally committed; (2) another person’s unlawful conduct, but only upon proof that the defendant “authorized, directed, or ratified specific tortious activity”; or (3) speech that satisfies the constitutional test for incitement.
These categories enforce a fundamental First Amendment principle: association may be collective, but culpability is personal. Membership in a movement, participation in a demonstration, or even leadership of a political campaign does not make a person liable for every unlawful act committed by someone connected to the cause. “Civil liability may not be imposed merely because an individual belonged to a group, some members of which committed acts of violence.”
Ford does not contend that Mckesson threw the rock. There is no evidence that he asked anyone to throw objects, approved the assault, ratified it afterward, or even knew the assailant. The negligence theory instead treats Mckesson’s alleged direction of demonstrators into a roadway as creating a foreseeable risk of violence.
That theory shifts the focus—and with it, the constitutional inquiry. The particular tort for which Ford seeks damages is the assault that shattered his jaw—not the obstruction of traffic. Claiborne’s three verbs—authorized, directed, ratified—demand a personal link between the defendant and the violence of others. They are not satisfied simply because Mckesson allegedly directed demonstrators into the road. Intent to commit one unlawful act does not establish authorization of another person’s violent felony. I previously described this maneuver as a “negligent protest” theory that allows a stranger’s foreseeable violence to stand in for the speaker’s own wrongdoing.
Our 2023 decision claimed to require a “sufficiently close relationship” between the leader’s conduct and the third party’s tort, yet deemed that specification satisfied whenever a leader negligently created conditions in which injury was likely. That formulation provides no meaningful boundary. The gulf is laid bare by Claiborne itself. Charles Evers led the boycott, and his speeches carried threats, and violence did occur. Yet the Court declined to hold him liable without proof that he had authorized, directed, or ratified the particular violence at issue. Mckesson’s connection to the Baton Rouge assault is markedly weaker: the assailant is unknown, and no evidence ties that person’s act to anything Mckesson said or did….
Counterman identifies a second constitutional flaw: Ford’s theory rests on objective negligence not tethered to the actual assault. The panel dismisses Counterman as a distant civil-true-threat case. While the Supreme Court’s ruling concerned true threats, its reasoning speaks directly to the constitutional issue here.
Counterman rejected objective negligence for threatening speech and required at least subjective recklessness. More crucial here, the Court distinguished incitement. Incitement standards demand more—because political advocacy sits “a hair’s-breadth away” from criminal incitement. Those cases require a specific intent—purpose or knowledge—to prevent legal penalties from bleeding into dissent within the First Amendment’s core. The Court cited Claiborne as part of that continuum.
A negligence action arising from a protest against government conduct sits squarely within that concern. The panel’s rule imposes liability without proof that Mckesson intended violence, knew that his words or conduct would cause it, or consciously disregarded a substantial risk that they would do so. It asks only whether a reasonable person should have foreseen some confrontation at some point.
That is precisely the objective-negligence standard Counterman rejected, applied in a setting where the Court said the Constitution requires more protection, not less. Counterman does not automatically convert every First Amendment case into a true-threat prosecution. It does, however, reject the premise underlying our 2023 decision—that protest-related speech can support liability for another person’s violence without an “intent condition.”
The panel asserts Counterman is satisfied because a jury could find that Mckesson intended “disorder” when he allegedly directed people into a public street. The panel invokes the mens rea concept but attaches it to the wrong act.
The requisite mental state must attach to the violence Ford seeks to compensate for—a rock hurled at his face, not delayed traffic. Intent to block traffic is not the same as intent to shatter a officer’s jaw. Proving that Mckesson intended civil disobedience does not show that he intended, knew of, or consciously disregarded a substantial risk of this particular assault by an unknown person. Otherwise, any intent to violate a minor rule during a protest would expose the speaker to liability for every foreseeable crime that followed….
Judge James Ho disagreed, and authored a concise concurrence in the denial of rehearing en banc:
The dissent advocates for principled protection of the First Amendment: … “The First Amendment must protect advocacy regardless of whether the cause is popular or unpopular.” I certainly agree: “Popular speech doesn’t need protection. It is only when speech is unpopular that you need the First Amendment.” … So our rulings must be carefully viewpoint-neutral….
Where I diverge from my esteemed dissenting colleague is in seeing no violation of viewpoint neutrality here—only the faithful application of a straightforward rule: “The First Amendment protects protest, not trespass.” This rule “applies with equal force to pro-police demonstrators” (or to pro-life and pro-choice demonstrators alike) who unlawfully obstruct a public highway. And the plaintiff has produced ample evidence for a jury to classify this case as trespass, not protest—an assessment our court has already reached more than once.
And an excerpt from the 2023 panel majority in the case, authored by Judge Jennifer Walker Elrod and joined by Judge Grady Jolly, which laid out the First Amendment rule later addressed in the en banc call:
[T]he negligence theory pursued by Doe fits neatly within two theories of protest-leader liability identified in Claiborne.
First, Doe plausibly alleges that Mckesson “directed … specific tortious activity” insofar as he claims that his injuries resulted from Mckesson’s own tortious conduct in directing an illegal and foreseeably violent protest. Claiborne reaffirmed that the First Amendment does not bar States from imposing tort liability even when the tort occurs in the context of expressive activity. The conduct at issue here—creating unreasonably dangerous conditions—is a quintessential tort. It clearly falls within the scope of “tortious activity” envisioned by the Claiborne Court
The only other requirement for this theory to align with the First Amendment is that it be sufficiently tailored to target the tortious activity without sweeping in legitimate expressive conduct…. [W]e are confident that Doe’s negligence theory satisfies that constraint.
Begin with the “breach” element. The State of Louisiana does not expose ordinary protest leaders to risk by acknowledging that Mckesson’s actions fell below an acceptable standard of care. On the contrary, Doe has alleged that Mckesson created unreasonably dangerous conditions in at least three significant ways. First, he organized the protest to commence in front of the police station, obstructing access to the building. Second, he personally took charge of the protest’s movements, yet failed to intervene to prevent or discourage fellow demonstrators from looting a grocery and throwing objects at assembled officers. And third, Mckesson purposely directed the demonstrators onto a public highway, in violation of Louisiana criminal law.
Obviously, the State has a strong interest in preventing unreasonably dangerous conduct such as this. But that standard does not sweep in all expressive activity. Protest leaders who run their demonstrations with even a minimal level of care will not be held responsible for every misdeed by rogue participants.
Then comes the cause-in-fact requirement. It is not enough for Doe to prove that Mckesson breached his duty of care; he must also show that Mckesson’s actions were a necessary antecedent to Doe’s injuries. In other words, Doe must prove that he would not have been harmed but for the manner in which Mckesson organized and directed the protest. That is a tall order, and it will only be satisfied in exceptional cases where the well-pleaded allegations support the inference that the leader’s specific actions caused the plaintiff’s injuries.
To recap, when a defendant creates unreasonably dangerous conditions, and those conditions lead to a plaintiff’s injuries, that defendant has “directed” his own “tortious activity” for purposes of Claiborne. In such circumstances, imposing liability serves more to deter tortious conduct than to suppress legitimate expressive activity. The cause of action thus satisfies Claiborne‘s demand for “precision of regulation.”
The dissenting opinion reads Claiborne as limiting the authorize/direct/ratify theory of liability to torts committed by someone other than the defendant, but that interpretation conflicts with settled First Amendment law. It is firmly established that expressive activity is not a defense to an individual’s own unlawful conduct. It follows that a protest leader who commits a tort cannot evade liability for that tort merely by pointing to his participation in a protest. Doe may pursue claims against Mckesson even if the latter did not throw the projectile because, according to the complaint, Mckesson committed an intentional tort that caused Doe’s injuries.
Additionally, the dissenting opinion contends that Mckesson cannot be held liable for his nonviolent conduct because the Supreme Court declined to impose liability on Evers in Claiborne. But that fails to account for the substantial differences between Claiborne and this case. First, according to the pleadings, Mckesson had a closer connection to the unlawful aspects of the protest than Evers did. Mckesson personally led the protest on the ground and directed its movements. True, Evers was a protest leader who delivered various boycott-related speeches. But there is no allegation that Evers actually participated in the unlawful activities that occurred. Thus, while Evers “led the protest,” the manner in which he did so is legally distinct from how Mckesson led the protest at issue here.
Second, and relatedly, Mckesson is alleged to have caused the protest to become unlawful more directly than did Evers. Perhaps, as the dissent suggests, the Claiborne protest was foreseeably violent, but the evidence did not attribute that foreseeability to Evers. Here, by contrast, Mckesson’s organization and management of the protest in an unsafe fashion directly created foreseeable violent conduct. Contrary to the dissent’s position, there is no tension between this result and Claiborne….
The negligence claim here also fits within the second theory of protest-leader liability identified in Claiborne. The Court explained that a protest leader could be liable for his actions where it was shown that he or she “were likely to incite lawless action,” and that “unlawful conduct … in fact followed within a reasonable period.” That is precisely what Doe contends in this case—that Mckesson organized and directed the protest in an unsafe manner such that a violent clash with the police was likely, and that such a confrontation did occur. While this liability theory is more commonly invoked in the context of alleged incitement, it logically extends to other actions tending to incite unlawful behavior.
A close illustration is National Organization for Women v. Operation Rescue (D.C. Cir. 1999). The case involved protests at abortion clinics by demonstrators who obstructed access and blocked clinics, sometimes trespassing on or damaging property. Relying on a blend of Virginia state law and federal law, the district court enjoined the protesters from such behavior and from actions that would incite it. In clarifying its injunction, the district court explained that protesters were prohibited from “specifically planning and organizing unlawful blockades.” When the protesters initially refused to comply, the court held them in contempt and imposed sanctions.
Importantly for this case, the D.C. Circuit upheld the injunction and sanctions against the protesters despite their First Amendment objections under Claiborne. In doing so, the court drew a careful line between actions that encourage legitimate expressive activity, which are protected by the First Amendment, and actions that facilitate unlawful behavior, which are not. State law may not prohibit “the organization of lawful demonstrations that may ultimately include unauthorized unlawful acts.” But “incitement to specific unlawful acts may be prohibited without violating First Amendment guarantees.”
This case would differ if all Mckesson had done was organize a lawful protest, and an unidentified protester nonetheless assaulted Doe. But that is not Doe’s allegation. Instead, Doe maintains that Mckesson organized and led the protest in a manner that was likely to incite lawless action.
As explained above, these alleged actions include directing protesters to block a public highway, beginning the protest in front of the Baton Rouge police station, and failing to deter demonstrators from looting a grocery store and pelting officers with water bottles, despite Mckesson’s alleged exertion of influence and control over the protest. And as Doe’s injuries demonstrate, “unlawful conduct … in fact followed within a reasonable period.” Doe’s allegations thus fit within the “directed, authorized, or ratified” theory described by the Supreme Court in Claiborne. Additionally, for the reasons discussed here, the allegations also fit within the “likely to incite lawless action” theory….
