"Government is not free to disregard the First Amendment in times of crisis." Those are the words of U.S. Supreme Court Justice Neil Gorsuch. Today we check in with Mike Thompson for an update on the actions of the nation's highest court and the cases that impact us all.
Mike Thompson is an associate professor of criminal justice at the University of Sioux Falls.
Lori Walsh:
Welcome to In the Moment. I'm Lori Walsh. Government is not free to disregard the First Amendment in times of crisis. Those are the words of US Supreme Court justice, Neil Gorsuch. Well, today we check in with Mike Thompson for an update on the actions of the nation's highest court, in some cases that stand to impact us all. Mike Thompson is associate professor of criminal justice at the University of Sioux Falls. Professor Thompson, welcome back. Thanks for being here.
Mike Thompson:
I'm excited to be here as usual.
Lori Walsh:
All right. This is some interesting stuff to start with and I want to start with Mckesson v Doe. John Doe is a police officer. We don't get to know his name because he is injured in a Black Lives Matter protest and he decides to sue the organizer of the protest. Give us a little bit of background on what the initial situation was and then let's talk about how it made its way into a court challenge.
Mike Thompson:
All right. This Mckesson is the one who organized the protest in front of the police department building and the protest got violent and this officer was hit in the face by a piece of cement or a large rock. They're not sure. We're not sure even who threw the rock that injured the police officer. He was significantly injured. And then, so he sues the organizer of the protest in civil court for money damages, because the organizer was negligent. He failed to abide by his duty of care, to protect people within the range of danger, which would include this police officer. Mckesson then, he defends it based on his First Amendment right to protest. He's got a couple of arguments. He's got this First Amendment right to protest plus, there's no law that requires him to protect people in the officer's position from the criminal activities of third parties.
The officer wasn't injured directly by Mckesson, he was injured by somebody else, and it is the law in most states and in South Dakota included, that you don't have a duty to protect others so Mckesson wouldn't have a duty to protect the police officer from the criminal activities of another. And that is the law in the state where this occurred, in Louisiana. There's also this First Amendment claim that Mckesson has the right to protest under the First Amendment, which is true to a certain extent. You can't use incendiary language that is imminently designed to produce violence. And the interesting thing about it is I think we might see more of these types of cases that are brought by people injured during protests. And the court did not decide the First Amendment question. The court didn't decide the substance of it at all.
The court said that the Louisiana Supreme court, which is the state court, has never decided this issue. What the federal court should do is certify the question to the Louisiana Supreme Court. It's cool in a lot of ways and then because the court sidesteps the First Amendment issue, which was probably correct because the case wasn't in a good procedural place for them to make that determination and they send it back to Louisiana, which is the best court in the first instance to decide the liability here. We might see the case again. It depends on how Louisiana decides what the liability should be on a state law basis.
Lori Walsh:
Yeah. Here's one of the fascinating things, I think, that's timely about this and worth watching in the future, the protest originates after the death of a Black man Alton Sterling. That's what they're taking to the streets for and it has to do, the police officer contends that they are blocking a highway, which of course is Black Lives Matter standard sort of procedure from the early days of the protest would be to block a road. And so he says, "If you're going to block a road, you know that the police are going to come and therefore you're negligent because you're doing something that you know law enforcement will respond to and that people will get upset with and it's all a slippery slope." And this case originates in 2016. There's a whole lot of water under this protest bridge in the last four years.
Mike Thompson:
That is true.
Lori Walsh:
What do you anticipate in the future with more people trying to look at how we protest in America? Which is one of our sacred rights and saying, "We've taken it too far when we do things like this." And then other people saying, "Nope, that's the First Amendment and that's what it does. It gives us the right to go out and do this." Say more about just this whole issue of current events and how people try to bring cases to the Supreme Court that will somehow change the way things unfold in the streets of America.
Mike Thompson:
Yeah, couple things. The interesting thing about when a person gets injured like this officer did, that's the result of an action that is a crime, but it's also a civil matter, which means it's a tort. He's been personally injured so usually tort law is a matter of state law. Those cases are probably going to come through state courts predominantly, depending on who's involved a federal court might have jurisdiction over that. But since Brandenburg versus Ohio, which is an old Supreme Court case, it's been the Supreme court has really protected, I was going to say pretty nicely, meaning that it allows a lot of activity during a protest under the auspices of the First Amendment. The standard is the speech, it has to be likely to incite or produce the use of force or violence. If it is likely to incite the use of force or violence, then it's probably not going to be protected by the First Amendment. Otherwise, it probably is going to be protected by the First Amendment in South Dakota.
Lori Walsh:
Let's talk about that word immediately though. Because it has to immediately, so yeah.
Mike Thompson:
There's a lot of immediately and a lot of imminently in that definition. It would be a problem of proof, definitely.
Lori Walsh:
President Trump can be at a rally and reporters from CNN or another national organization, there could be the press box and he can say, "They're fake news. They don't deserve to be alive." I'm not saying he said that, but certainly he said many things about journalists. The crowd could start hassling them. He still is not violating the First Amendment because he doesn't say what? "Go get them?" Where is that line between the same thing with the Black Lives Matter protest, you can see any video of a protest where water bottles are thrown at the police officers with shields. At what point does that become, this is a standard protest activity and we are now encouraging it. Leaf blowers, water bottles, umbrellas, this is, this is we're at battle. When does it become more than just rhetoric and become inciting immediate violence?
Mike Thompson:
Well, those situations are getting very close to not being protected by the First Amendment. Again, I'm going back to the Brandenburg, the old case. You can orally or in writing advocate or express beliefs, but those beliefs cannot urge the commission of imminent force or violence. When Donald Trump says, "They're fake news, go hassle them," it is very arguable that that is not First Amendment protected speech and that there might be liability. I don't know that there'd be liability on behalf of the Trump campaign or President Trump, that brings up a whole bunch of issues, but certainly there would be liability on the part of the protestor who actually followed that direction. I think in those situations where things get thrown, that the throwing is not protected speech I don't think in most circumstances. Yeah.
Lori Walsh:
But if you're organizing a protest and you say, "We're going to block a highway, bring water bottles, cops hate that." Now you're in that realm where what are you encouraging people to do with a water bottle, with a rock, with pepper spray, what have you?
Mike Thompson:
You're out of that area. You're out of that area for discretionary belief.
Lori Walsh:
You were saying in South Dakota there's a law you said.
Mike Thompson:
Yeah. We have a statute that allows people to recover from a person who incites a riot. You got to engage in conduct that are just three or more people to use force or violence. Under that statute, you can recover from the person who actually incites the riot. That could be the speaker, like in Mckesson versus Doe, that could be Mckesson, the person who is inciting the riot, who is urging people to violence. South Dakota would allow a monetary recovery against him.
Lori Walsh:
But Mckesson didn't urge anyone to throw a rock.
Mike Thompson:
No, he didn't.
Lori Walsh:
Mckesson urged people to block a highway. If that happens in South Dakota, what is different? You can do that, right?
Mike Thompson:
Right, you can do that.
Lori Walsh:
Blocking a highway is not a riot.
Mike Thompson:
Right, it's not an incitement to riot, but if he gets there and he says, "Hey, the cops are coming now would be a good time to throw your water bottles." That's a little bit clearer. But if they just express beliefs or advocate ideas without a call to violence, then that's still permissible under the First Amendment.
Lori Walsh:
Interesting. All right, let's talk about another one that really explores the First Amendment. And this is the Roman Catholic diocese versus Cuomo. I think a lot of people heard about this one, because it's a fairly recent and this is Governor Andrew, I'm sorry, Andrew? Yes. Andrew Cuomo in New York, pandemic, public health, he has this phased, you're in a yellow zone or red zone kind of approach to the number of people that can gather. But there are also essential businesses like grocery stores that don't have the same sort of regulations. And he puts churches and synagogues and gathering places for faith based reasons underneath this. And the Catholic diocese says, "Not so fast." Help us understand what exactly was unfolding in this case and how the US Supreme Court responds.
Mike Thompson:
Governor Cuomo imposed an executive order like you said, that limited visitors to churches between 10 and 25, depending on, like you said, the color of zone in which the church was located. And the thing thing that was blatant is probably too strong of a word, but the thing that showed that it was a sure violation of the First Amendment was he allowed other secular institutions not to be subject to those limitations. Normally when the US Supreme Court looks at what is a constitutional violation, it will look at okay, does the government have a compelling reason to impose this restriction? And if the government has a compelling reason to impose the restriction is the restriction so narrowly tailored that it just deals with that interest? It's called a strict scrutiny review and most of the time governmental action does not survive that review.
The weird thing about the case is that it was just a request for an injunction. The church was asking the court to stop the lower courts from enforcing or stop New York from enforcing that order. And the court granted that injunction. It said, "New York, you can't enforce that order." And then that means the merits of the case will be litigated in the lower federal courts, may come back up to the Supreme Court and Justice Barrett didn't write an opinion here, but a lot of the other justices wrote opinions about the case, which really just indicate they don't have any precedential value, but they indicate kind of what the court is thinking about this.
Interestingly, as the injunction was being considered, Cuomo changed the color designation of the areas in which the churches were located, which meant that there was no longer a violation. Some of the justices said, "Hey, there's nothing left here to adjudicate. It's been solved on its way up." Other justices disagreed. But the main thing is the enforcement of that order was stopped by the Supreme Court pending litigation in the lower courts. One more interesting thing to me anyway, the court said that surely the COVID pandemic is a compelling governmental interest, which indicates that, okay, government you can, that is a compelling interest. You can address it in certain ways, but you got to make sure that the way you address it is just enough to satisfy your interest. And in this case, his order was way too broad.
Lori Walsh:
Yeah. And likewise, tying it in with the previous idea of protests during the pandemic, a government could try to limit people's ability to take to the streets for public health reasons and that would probably be challenged as well. This whole notion of government public interest in a global pandemic is significant.
Mike Thompson:
It is. It is significant. Yeah. It's fun. It's not fun. It's fun to watch.
Lori Walsh:
Yeah, if you're not living through it, yeah.
Mike Thompson:
From a purely legal standpoint. Yeah.
Lori Walsh:
You're not living through it, it's a great academic exercise. But Gorsuch said, "Government is not free to disregard the First Amendment in times of crisis." And that will probably stand as something that in the future is really held to and brought up again and again. In just a remaining couple of minutes, let's take this last one, Edwards v Vannoy, which is broadly about this idea of non-unanimous jury rule. And it's called a Jim Crow jury, wherein and this is a Louisiana case where the opponents of it say, "It was intended to support the supremacy of the white race by making sure that you could overrule Black jurors." There's lots of allegations about what this was, it's been declared unconstitutional and now the question is, is it retroactive? Tell us a little bit about Jim Crow jury laws and this case with the US Supreme Court.
Mike Thompson:
Back in 1972, the court decided a case that involved an Oregon conviction of upfront a less than unanimous verdict. That was in 1972 and then a year or so ago, and in that 72 case, the Supreme Court said it was okay to have non-unanimous verdicts in a criminal case. And I should say a non-capital case. It's different in a death penalty case, but then in the Ramos case, which was a year or so ago, the Supreme Court said, "No, non-unanimous verdicts are unconstitutional. That's part of the Sixth Amendment protection so they're unconstitutional." That rule works from the date of that Ramos decision forward. The question in Vannoy is whether the court is going to make that rule go backward and apply to all cases in which a person was convicted on a non-unanimous verdict.
It's a procedural thing, but if the court does that and makes that rule retroactive, then Louisiana is going to have to go back and look at all of the cases where we had a non-unanimous verdict and those people are going to be entitled to a new trial under the new rule. I read the arguments on it. It doesn't look to me like the court is willing to make that rule retroactive. That's the constitutional question, whether we're going to make it retroactive. There are a number of other issues that the court might jump on to avoid that issue. But it looks to me, the courts faced a number of criminal justice issues that they have not made retroactive. A significant one is Batson versus Kentucky, which really dealt with the substance of the jury and the discriminatory jury selection. The Supreme Court did not make that rule retroactive and that seems to be a more substantive rule than this rule about unanimous verdicts. Something to watch.
Lori Walsh:
Meanwhile in Louisiana, 80% of people who have been convicted on those juries are Black. In the meantime, there are a lot of people who are serving time. Yeah.
Mike Thompson:
Right. Edwards was convicted. The only Black juror on his jury voted to acquit him. And he's still convicted on the non-unanimous verdict. It's a significant issue. Yes.
Lori Walsh:
Mike Thompson is associate professor of criminal justice at the University of Sioux Falls. We'll have you back when we hear more from the US Supreme Court on that and other cases of interest. Thanks for being here. We appreciate your time.
Mike Thompson:
Sounds good. Thank you.