First Amendment News 249.1: All-star lineup of lawyers and scholars file amicus brief in protest liability case

The right to protest and the dangers of civil liability 

This Court has recognized that the right to protest may be stifled “not only [by] heavy-handed frontal attack” but also “more subtle governmental interference.” Bates v. City of Little Rick. The imposition of civil liability on protest organizers can be such an interference. Courts have a “special obligation ... to examine critically the basis on which liability was imposed” to ensure that potential liability does not unduly impede the right to organize and petition the government. . . .

The imposition of severe civil liability for the exercise of First Amendment rights demands more than plausible allegations of simple negligence. Political expression “has always rested on the highest rung of the hierarchy of First Amendment values.” NAACP v. Claiborne Hardware. . . . The decision below converts Claiborne Hardware—with its repeated insistence on the importance of public association and protest and the corollary limitation on government interference with such activities—into precedent for the imposition of broad liability on those who organize them. . . .

The First Amendment’s protection of protest activity from liability is not the exception to the administration of state tort liability; it is the rule governing these casses.

The specter of violence 

Protests necessarily cause disruption and public inconvenience, and some protests will undoubtedly attract potentially aggressive actors on both sides. Violence or destruction of property is a recurrent possibility, particularly at larger protests. Such conduct is highly likely, even in situations where a protest organizer does not advocate violence, because protests involving political issues create strong feelings in participants. This Court has recognized this reality, but it has nonetheless consistently found that protest must still be protected.

Chilling effect 

The negligence liability the decision below licenses will substantially deter individuals from organizing protests related to politically fraught issues. If organizers are vulnerable to liability for the undirected actions of others, they are likely to stop organizing protests altogether. Recently, this Court has reiterated the reality that financial liability has the potential to chill protected speech. Timbs v. Indiana (2019)

Alternative avenues

There is also a governmental interest in preventing protests that interfere unduly with the freedom and safety of others, but, again, this interest is furthered by criminal law, not tort law. State and local law regularly includes time, place, and manner restrictions that regulate protest activities, and those who violate valid regulations may be penalized. Allowing in addition private citizens to sue organizers for the actions of their protestors adds little; it would neither effectively nor consistently deter illegal protests. Organizer negligence liability completely fails as a deterrent of violent activity because it does not address the violent actors themselves. The practical effect of organizer liability will not be to deter violence, but to deter protests.