The Erickson Report, Page 6: Two Weeks of Stupid: Clowns and Outrages [the Outrages]

Two Weeks of Stupid: Clowns and Outrages [the Outrages]

Finally we have the Outrages and there are three of them, all related to court decisions.

I'll do this first because I can do it quickly. Last month, I discussed the morally depraved ruling by the Supreme Court to allow the "public charge" rule to go into effect while appeals against it continue. This is the one that allows denying green cards to potential immigrants if some official thinks they might at some point in the future need any one of a variety of types of public support.

The rule is expected to cut legal immigration by up to two-thirds and obviously it will be the "tired, the poor, the huddled masses" who will be affected.

The Outrage this time is that there was a second suit related to the public charge rule, which as the result of a stay had resulted in the rule not being in effect in Illinois.

On February 21, SCOTUS doubled down on its xenophobic depravity and lifted that stay, meaning the rule is now in place nationwide.

Which is a sickening Outrage.

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Next is that on February 28, we continued our march toward centralized authoritarian rule as the Court of Appeals for Washington, DC, agreed with the Tweetie-pie gang that the courts can't force former White House Counsel Don McGahn to testify before the House Judiciary Committee because in the absence of proof of damage to some entity beyond the federal government, then quoting the decision, "any dispute remains an intramural disagreement about the ‘operations of government’ that we lack power to resolve."

In other words, for all practical purposes the executive branch can simply and with impunity refuse to provide information or testimony to Congress even if the specific letter or the law says it must - remember the thing about how Treasury "shall" provide requested tax information to Congressional tax committees - because there is no legal mechanism to force them to do so.

It's a dubious position given the court system's traditional role of arbiter of disputes but it does show how easy it is to let more and more power and control to flow to the Executive. That is not only an Outrage, it's frightening.

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But the big Outrage this time is yet another court action.

The ACLU is asking the Supreme Court to take up the case of DeRay Mckesson, who is being sued by a Baton Rouge cop.

What happened, in brief, is that there were protests in the city after two white police officers shot and killed Alton Sterling, a black man, in July 2016. Police responded, as you would expect, with riot gear, excessive force, and illegitimate arrests.

At some point during one protest outside police headquarters, someone (it's not known who) threw something (it's not clear what) that hit some cop (whose name is unknown). That cop sued DeRay Mckesson, who was one of the organizers of the protest, on the grounds that as an organizer, he was liable for anything done by anyone present if violence was "forseeable."

A district court threw out the suit as clearly violating a core tenet of the First Amendment: In the context of a protest, individuals cannot be held liable for the unlawful, unintended acts of others. 

The Supreme Court

Then the Fifth Circuit Court of Appeals - the same one that upheld the Texas and Louisiana abortion laws - took it up. The court concluded that Mckesson was not the person who threw the object, which indeed no one, not even the cop, had suggested he was, that he had no control over the individual who threw the object, and that he had not intended for the object to be thrown. Despite that, the judges concluded that Mckesson could be liable for the officer's injuries and overturned the district court ruling.

Huh? How? Because, the court said, during the protest, Mckesson (according to the cop) directed others onto the street in front of police headquarters, which supposedly violated some Louisiana law. Therefore, it was foreseeable that police would get involved and therefore foreseeable that violence could occur and therefore Mckesson could be liable for any harm that followed.

This is insane and insanely dangerous. Not only for the not unreasonable but still disturbing assumption that any time police are involved you can expect violence, but also that it literally could destroy the right of public protest by laying the risk of personal or organizational bankruptcy over any protest.

Quoting the ACLU:

Under the Fifth Circuit's theory, a police officer - or, equally, a counter-protester - need only allege that a protest organizer directed or enabled other protesters to do any illegal thing, from overstaying a permit in order to pack up, to pumping the volume up a little too loud, to conducting a sit-in that obstructs access on a sidewalk or constitutes a trespass. Countless potential plaintiffs could argue that their injuries - sprained ankles, broken windows, extreme stress - probably would not have occurred had the protest not been at that place at that time, or had police or counter-protesters not responded as they did.

With these costly risks, who would be willing to lead a protest?

In fact, it's even worse than that, because by the 5th Circuit's logic, the likelihood of police presence is itself enough to make violence "foreseeable" and therefore make protesters liable for any violence that occurs.

But police presence at protests is routine, especially in the case of large crowds or a focus on issues of public controversy. So essentially any organizer of any protest is running the risk of financial ruin for what some fool - or agent provocateur - does even in the absence of any illegal act.

Happily the Supreme Court dealt with this back in 1982 in NAACP v. Claiborne Hardware Co., making it clear that the Constitution limits the government's ability to place responsibility for violence onto peaceful protesters. Interestingly, one of its recent uses was to protect Donald Trump against a suit over violence at one of his campaign rallies and another was to protect protesters of the Dakota Access Pipeline.

But it looks like this battle is going to have to be fought all over again. Since 1982, the composition of the Supreme Court has changed for the worse, but at least we can, indeed must, hope the members still believe in the First amendment.

Because if they uphold this insanely outrageous ruling, we are completely screwed.