On July 8, 2016, Alton Sterling was murdered by the police of Baton Rouge, Louisiana. On July 9, the following day, Black Lives Matter organizers, including DeRay Mckesson, organized a protest in front of the Baton Rouge police department where the highway was blocked by organizers. We all know what makes an effective protest — challenge to money and property. The police in Baton Rouge know it too, which is why they deployed their armored sturmabteilung, their terror garrison, to confront the protest. At some point during this action, a protester allegedly threw a chunk of concrete that struck an officer in the head, earning him much-deserved brain trauma and disfigurement. Seeking to make some hay out of this, the officer sued DeRay Mckesson for “negligently causing a third party to commit a crime.”
Last year, the Supreme Court of the United States decided Counterman v. Colorado, 600 U.S. (2023), which held that negligence could never be the standard for First Amendment cases. Essentially, SCOTUS said that, in order to hold someone accountable for their speech, malicious intent must be proved. Under Anglo-American law, there is a differentiation between general intent (intent to do an action) and specific intent (intent to bring about a result). Under the standard decided in Counterman, speech-related acts must have the specific intent of bringing about the complained-of result.
What does that mean in the case of DeRay Mckesson? If the fascist Court of Appeals of the Fifth Circuit had followed this decision, it would have meant that Mckesson could not be found liable to Officer Braindamage unless the officer could prove that Mckesson had organized the protest specifically with the intent of hurting him, or had otherwise directly urged the protestor who threw the concrete to do so. In fact, the District Court did hold that, and dismissed the suit, but Officer Shatterface appealed to the Fifth Circuit Court of Appeals, which issued a ruinous decision. The Fifth Circuit covers the states of Texas, Louisiana, and Mississippi, and in their 2022 decision they held that protest organizers owe a duty not to “negligently cause a third party to commit a crime that is a foreseeable consequence of negligence.” This means, as far as federal law is concerned in those three states, protest organizers are civilly liable for any damage caused by a protest.
Furthermore, it is possible that this will establish the basis for criminal liability. It is an echo of the RICO prosecutions in Georgia. It is not impossible that prosecutors’ offices throughout the South now possess the weapons to indict and charge any participant in a protest as part of a domestic terror plot.
This Monday, the nine robed fascists on the SCOTUS declined to review Mckesson’s case, denying certiorari, and permitting this Fifth Circuit decision to stand. The entire swathe of the U.S. South, the stronghold of the most powerful elements of right-fascistic reaction, will now treat all of its citizens the way it has long treated its Black and Indigenous citizens. The age of the settler-compromise is coming to an end, and the age of open warfare between the proletarian class and the state has returned.
Solidarity to all in the fortresses of fascism — we urge all aid in this hour of war to be sent to them. We will defy the tools of the enemy state, spit in the face of its bourgeois masters, and the masses will have no choice but look into the eye of their propertied enemy, and decide: Whose side are you on?
