Professor Timothy Zick Co-authors Amicus Brief in First Amendment Case on Negligent Protest

Professors Timothy Zick of William & Mary Law School and Tabatha Abu El-Haj of the Thomas R. Kline School of Law at Drexel University have co-authored a “Brief of First Amendment Scholars as Amici Curiae in Support of Petitioner,” which has just been filed at the U.S. Supreme Court.

The brief urges the Court to accept review in Mckesson v. Doe, which raises the question whether the First Amendment bars a Black Lives Matters protest organizer from being held civilly liable for “negligent protest.” Doe, a Louisiana police officer, was injured by a protest participant in July 2016, but not at the direction or request of Mckesson. The Fifth Circuit denied a motion to dismiss the “negligent protest” claim, and the case is on appeal at the U.S. Supreme Court. Read the brief here (opens pdf).

As maintained in the brief, “the Fifth Circuit flatly contradicted the Supreme Court’s precedents when it green-lit tort damages against a protest organizer simply because a protest participant—on his own accord and absent direction from the protest organizer—committed a violent act.”

The brief argues that the Fifth Circuit’s “crabbed view of the First Amendment” represents “a sharp break with the robust protection of political assemblies and broad conception of ‘peaceable’ that prevailed for centuries, going back to the early Republic.”

It also argues that the Fifth Circuit’s rule virtually guarantees tort liability for protest organizers, stifling critically important political dissent.

Professors Zick and Abu El-Haj were quoted in a Washington Post story covering the lawsuit in December 2019.

Timothy Zick is the John Marshall Professor of Government and Citizenship and Cabell Research Professor at William & Mary Law School. He has written on a variety of constitutional issues, with a special focus on the First Amendment. He is the author of four university press books on the subject: Speech Out of Doors: Preserving First Amendment Liberties in Public Places (Cambridge UP, 2009); The Cosmopolitan First Amendment: Protecting Transborder Expressive and Religious Liberties (Cambridge UP, 2013); The Dynamic Free Speech Clause: Free Speech and Its Relation to Other Constitutional Rights (Oxford UP, 2018); and The First Amendment in the Trump Era (Oxford UP, 2019).

Tabatha Abu El-Haj, an Associate Professor of Law at the Thomas R. Kline School of Law at Drexel University, is a leading expert on the First Amendment and the right of peaceable assembly. Her prior publications include “The Neglected Right of Assembly,” UCLA Law Review (2009) and “Beyond Campaign Finance Reform, Boston College Law Review (2016). Shorter pieces include “Public Unions Under First Amendment Fire,” Washington University Law Review (2018); “‘Live Free or Die’ – Liberty and the First Amendment,” Ohio State Law Journal (2017); and “Defining Peaceably: Policing the Line Between Constitutionally Protected Protest and Unlawful Assembly,” Missouri Law Review (2015).

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