Geoffrey R. Stone on Lawsuit Against Black Lives Matter and the Implications for Free Speech

A Wounded Cop's Strange, Dubious Lawsuit Against Black Lives Matter
Allie Conti
Vice
July 11, 2017

On Friday, a lawyer for one of the Baton Rouge police officers ambushed last summer by an unhinged military vet angry about police brutality filed a lawsuit against Black Lives Matter. The idea behind the suit, which also names BLM leaders, is that prominent police critics like DeRay Mckesson are legally (and financially) responsible for inciting violence against cops, even if the people who commit individual crimes against law enforcement—in this case killing three officers and wounding three more—have no connection to the broader movement.

This is the second time Mckesson has been sued by the same lawyer, Donna Grodner, and the weird pseudo-rap ads I found for her on YouTube page made me suspect the whole thing might be a stunt for attention. (How can you sue "#BlackLivesMatter," which is—seriously—named as one of the defendants in this latest suit?) But even if the complaint seems to stand little chance of success, it's fair to wonder if its very existence might augur a new normal where people weaponize the legal system to chill the speech of social movements they don't like.

The case that set the standard of when people are legally responsible for inciting violence in the United States was decided in 1969. In Brandenburg v. Ohio, the Supreme Court ruled that a Ku Klux Klansman was wrongfully prosecuted for insinuating during a rally that the KKK should take revenge against its enemies.

Given that precedent, Geoffrey Stone, a constitutional law expert at the University of Chicago, told me the new lawsuit against Black Lives Matter "sounds silly." In fact, a solid chunk of it is predicated on a right-wing conspiracy theory involving fabricated Twitter messages allegedly sent by Mckesson about his desire to bring about martial law, as VICE News reported.

Meanwhile, the few actual quotes attributed to activists like McKeeson in the suit, such as, "The police want protesters to be too afraid to protest," and "people take to the streets as a last resort," seem to fall way below the threshold of what was established in Brandenburg.

"[The quote] would have to be basically, 'You go kill this person,'" Stone told me of the standard for incitement. "It would have to be something the speaker meant to be taken seriously, and he would have to believe the person he was speaking to would go do it—and they would go do it imminently. The paradigm example is if there's a riot going on, and if somebody yells at someone holding a gun, "Shoot that son of a bitch," that would be an example of when someone's liable. Short of that, it's pretty hard to imagine."

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Faculty: 
Geoffrey R. Stone