#McKesson v. Doe

[justinspoliticalcorner]

Ian Millhiser at Vox:

The Supreme Court announced on Monday that it will not hear Mckesson v. Doe. The decision not to hear Mckesson leaves in place a lower court decision that effectively eliminated the right to organize a mass protest in the states of Louisiana, Mississippi, and Texas. Under that lower court decision, a protest organizer faces potentially ruinous financial consequences if a single attendee at a mass protest commits an illegal act.

It is possible that this outcome will be temporary. The Court did not embrace the United States Court of Appeals for the Fifth Circuit’s decision attacking the First Amendment right to protest, but it did not reverse it either. That means that, at least for now, the Fifth Circuit’s decision is the law in much of the American South. For the past several years, the Fifth Circuit has engaged in a crusade against DeRay Mckesson, a prominent figure within the Black Lives Matter movement who organized a protest near a Baton Rouge police station in 2016. The facts of the Mckesson case are, unfortunately, quite tragic. Mckesson helped organize the Baton Rouge protest following the fatal police shooting of Alton Sterling. During that protest, an unknown individual threw a rock or similar object at a police officer, the plaintiff in the Mckesson case who is identified only as “Officer John Doe.” Sadly, the officer was struck in the face and, according to one court, suffered “injuries to his teeth, jaw, brain, and head.”

Everyone agrees that this rock was not thrown by Mckesson, however. And the Supreme Court held in NAACP v. Claiborne Hardware (1982) that protest leaders cannot be held liable for the violent actions of a protest participant, absent unusual circumstances that are not present in the Mckesson case — such as if Mckesson had “authorized, directed, or ratified” the decision to throw the rock. Indeed, as Justice Sonia Sotomayor points out in a brief opinion accompanying the Court’s decision not to hear Mckesson, the Court recently reaffirmed the strong First Amendment protections enjoyed by people like Mckesson in Counterman v. Colorado (2023). That decision held that the First Amendment “precludes punishment” for inciting violent action “unless the speaker’s words were ‘intended’ (not just likely) to produce imminent disorder.”

The reason Claiborne protects protest organizers should be obvious. No one who organizes a mass event attended by thousands of people can possibly control the actions of all those attendees, regardless of whether the event is a political protest, a music concert, or the Super Bowl. So, if protest organizers can be sanctioned for the illegal action of any protest attendee, no one in their right mind would ever organize a political protest again. Indeed, as Fifth Circuit Judge Don Willett, who dissented from his court’s Mckesson decision, warned in one of his dissents, his court’s decision would make protest organizers liable for “the unlawful acts of counter-protesters and agitators.” So, under the Fifth Circuit’s rule, a Ku Klux Klansman could sabotage the Black Lives Matter movement simply by showing up at its protests and throwing stones.

The Fifth Circuit’s Mckesson decision is obviously wrong

Like Mckesson, Claiborne involved a racial justice protest that included some violent participants. In the mid-1960s, the NAACP launched a boycott of white merchants in Claiborne County, Mississippi. At least according to the state supreme court, some participants in this boycott “engaged in acts of physical force and violence against the persons and property of certain customers and prospective customers” of these white businesses. Indeed, one of the organizers of this boycott did far more to encourage violence than Mckesson is accused of in his case. Charles Evers, a local NAACP leader, allegedly said in a speech to boycott supporters that “if we catch any of you going in any of them racist stores, we’re gonna break your damn neck.”

With SCOTUS refusing to take up McKesson v. Doe, the 5th Circuit's insane anti-1st Amendment ruling that effectively bans mass protests remains in force for the 3 states covered in the 5th: Texas, Louisiana, and Mississippi.

#SCOTUS #Deray McKesson #Protests #Black Lives Matter #5th Circuit Court #Texas #Louisiana #Mississippi #1st Amendment #Counterman v. Colorado #NAACP v. Claiborne Hardware #McKesson v. Doe

[soon-palestine]

Under that lower court decision, a protest organizer faces potentially ruinous financial consequences if a single attendee at a mass protest commits an illegal act.

It is possible that this outcome will be temporary. The Court did not embrace the United States Court of Appeals for the Fifth Circuit’s decision attacking the First Amendment right to protest, but it did not reverse it either. That means that, at least for now, the Fifth Circuit’s decision is the law in much of the American South.

For the past several years, the Fifth Circuit has engaged in a crusade against DeRay Mckesson, a prominent figure within the Black Lives Matter movement who organized a protest near a Baton Rouge police station in 2016.

The facts of the Mckesson case are, unfortunately, quite tragic. Mckesson helped organize the Baton Rouge protest following the fatal police shooting of Alton Sterling. During that protest, an unknown individual threw a rock or similar object at a police officer, the plaintiff in the Mckesson case who is identified only as “Officer John Doe.” Sadly, the officer was struck in the face and, according to one court, suffered “injuries to his teeth, jaw, brain, and head.”

Everyone agrees that this rock was not thrown by Mckesson, however. And the Supreme Court held in NAACP v. Claiborne Hardware (1982) that protest leaders cannot be held liable for the violent actions of a protest participant, absent unusual circumstances that are not present in the Mckesson case — such as if Mckesson had “authorized, directed, or ratified” the decision to throw the rock.

Indeed, as Justice Sonia Sotomayor points out in a brief opinion accompanying the Court’s decision not to hear Mckesson, the Court recently reaffirmed the strong First Amendment protections enjoyed by people like Mckesson in Counterman v. Colorado (2023). That decision held that the First Amendment “precludes punishment” for inciting violent action “unless the speaker’s words were ‘intended’ (not just likely) to produce imminent disorder.”

The reason Claiborne protects protest organizers should be obvious. No one who organizes a mass event attended by thousands of people can possibly control the actions of all those attendees, regardless of whether the event is a political protest, a music concert, or the Super Bowl. So, if protest organizers can be sanctioned for the illegal action of any protest attendee, no one in their right mind would ever organize a political protest again.

Indeed, as Fifth Circuit Judge Don Willett, who dissented from his court’s Mckesson decision, warned in one of his dissents, his court’s decision would make protest organizers liable for “the unlawful acts of counter-protesters and agitators.” So, under the Fifth Circuit’s rule, a Ku Klux Klansman could sabotage the Black Lives Matter movement simply by showing up at its protests and throwing stones.

#palestine #gaza #free palestine

[junos-office-drama]

"The Supreme Court announced on Monday that it will not hear Mckesson v. Doe. The decision not to hear Mckesson leaves in place a lower court decision that effectively eliminated the right to organize a mass protest in the states of Louisiana, Mississippi, and Texas."

...this is so horrifying that I can barely put it into words, but I do want to point out that:

5 of the lower court judges were appointed by Trump (12 of 17 appointed by Republicans)

3 of the Supreme Court judges were appointed by Trump (6 of 9 appointed by Republicans)

I am so sick of hearing that both sides are the same, that it doesn't matter who wins the election, that Biden is just as bad as Trump, that it's not critical that we all turn out to vote this fall.

They are not the fucking same.

Only one side is trying to strip away our constitutional rights, and specifically targeting people of color as they do so.

#supreme court #supreme court decision #vote blue no matter who #second amendment #freedom of speech

[whitesinhistory]

The Supreme Court announced on Monday that it will not hear Mckesson v. Doe. The decision not to hear Mckesson leaves in place a lower court decision that effectively eliminated the right to organize a mass protest in the states of Louisiana, Mississippi, and Texas. 

Under that lower court decision, a protest organizer faces potentially ruinous financial consequences if a single attendee at a mass protest commits an illegal act.

It is possible that this outcome will be temporary. The Court did not embrace the United States Court of Appeals for the Fifth Circuit’s decision attacking the First Amendment right to protest, but it did not reverse it either. That means that, at least for now, the Fifth Circuit’s decision is the law in much of the American South.

For the past several years, the Fifth Circuit has engaged in a crusade against DeRay Mckesson, a prominent figure within the Black Lives Matter movement who organized a protest near a Baton Rouge police station in 2016. 

The facts of the Mckesson case are, unfortunately, quite tragic. Mckesson helped organize the Baton Rouge protest following the fatal police shooting of Alton Sterling. During that protest, an unknown individual threw a rock or similar object at a police officer, the plaintiff in the Mckesson case who is identified only as “Officer John Doe.” Sadly, the officer was struck in the face and, according to one court, suffered “injuries to his teeth, jaw, brain, and head.”

Everyone agrees that this rock was not thrown by Mckesson, however. And the Supreme Court held in NAACP v. Claiborne Hardware (1982) that protest leaders cannot be held liable for the violent actions of a protest participant, absent unusual circumstances that are not present in the Mckesson case — such as if Mckesson had “authorized, directed, or ratified” the decision to throw the rock.

#history #white history #protest #supreme court

[technoreliquary]

my thoughts re: the supreme court refusing to hear McKesson v Doe and leaving in place the fifth court decision that protest organizers are legally liable for the actions of all protesters and counter-protesters is this:

stop registering protests with the police

stop claiming organization. “i heard theres a protest today.” prepare statements if questioned. no posting. word of mouth only.

[post-leffert]

The Sunbird: How to Start an Announcements-Only Thread on Signal

As billionaires have clamped down on social media, secure group messaging platforms like Signal have moved to the fore as spaces for discussion and organizing. In this interview, organizers in Austin, Texas describe how they established Sunbird, a Signal account that runs an announcements-only thread to enable participants in the Palestine solidarity movement to share news and coordinate horizontally.

This model represents an alternative to centralized, top-down leadership models, showing how a movement can scale up without losing its decentralized, egalitarian character.

To skip directly to a step-by-step guide to establishing your own announcements-only Signal thread, click here.

Tell us about Sunbird.

Sunbird was started on April 24 by a group of unaffiliated students and community members in Austin, Texas. Our intention is to serve as an anonymous, real-time announcement and coordination platform to foster greater participation and activity from everyone who is involved in the struggle for the liberation of Palestine.

A principle that we hold dear is diversity of tactics. Everyone should be able to plan and promote events and share announcements while retaining their anonymity. In the current climate of repression, in which public organizers are being targeted all around the country, this is especially important. Here in Texas specifically, the 5th circuit ruling in McKesson v. Doe criminalizes organizing protest-related activities.

An announcement on Sunbird.

Why did you establish Sunbird?

Sunbird was created in the wake of the internationally coordinated economic blockades of April 15. When students established encampments at Columbia and then elsewhere, it became clear that in order to ensure the longevity and widest possible ownership of the movement locally, there was a need for an anonymous switchboard to potentiate fearless and confident participation.

The best way to combat the repression of social movements and to empower ourselves to act is to eliminate the distinction between organizer and organized. We believe that no individual or organization in Austin speaks for the entirety of the Palestinian resistance; consequently, we wanted to create a space that could empower everyone who feels ethically called to respond to the ongoing genocide to take action, announce events, and share live updates.

Who are you? Are you students?

We are an all-volunteer collective. Some of us are students at the University of Texas at Austin, others are community members. We are not affiliated with any organization, student or otherwise.

What scale is Sunbird operating on?

Sunbird is a platform for the Pro-Palestine, anti-genocide movement in Austin, Texas specifically. The need for platforms for anonymous coordination of diverse and creative movements exists wherever hearts yearn for liberation and freedom. We are inspired by similar projects elsewhere, but Sunbird is a special and unique solution deep in the heart of Texas. The power of Sunbird lies in our attention to and participation in our local context; rather than seeking to scale up this project, we encourage people to establish similar experiments with switchboard-style announcement threads elsewhere. We have heard that movements around the country are exploring creating platforms inspired by Sunbird.

State troopers and other violent mercenaries prepare to attack students on the University of Texas campus on April 29, 2024.

Why did you choose Signal?

There are two major benefits to using Signal. First, the messages are end-to-end encrypted, which means that Signal (the company) does not have access to them. Only you and the person on the other end can access the messages. This makes Signal different from texting and social media. Second, while you need a phone number to make an account, following a recent update, it is now possible to withhold your phone number from the people you message. This is very important for those who prefer to remain anonymous, because your phone number can be used to connect your messages to you.

We live in the age of surveillance capitalism. Big tech is actively working with governments and private security companies to monitor and undermine individual activists and entire movements. We see this in the shadow bans on Instagram and Twitter, the firing of pro-Palestine employees from Google, and the well-documented collaboration between law enforcement and tech companies.

Anonymity is an important part of the Sunbird model.

How does Sunbird work?

We use Signal to coordinate, as well as encrypted documents in Riseup and Cryptpad. We work in shifts, since we receive up to hundreds of messages a day from different individuals, organizations, and journalists. To make sure that we all understand what is happening while any one person is away, we keep detailed notes, message drafts, and the text of frequently sent messages in a cryptpad.

We set up our Signal groups to only allow admins to post messages. This way, users can keep up with important developments and event information without being bogged down by chatter. All of the announcements in the group are aggregations of group member submissions. Though we edit for clarity—and we would have weeded out content by those opposed to Palestinian liberation had we ever received it—we welcome shared resources and announcements that movement participants believe would benefit others.

We don’t forward everything we receive. We avoid posts that would sow fear and disinformation; these can function as a form of self-repression, doing the work of the state. We work to verify all information that we send. We happily forward messages from many organizations in our role as a sort of “switchboard,” but we are not affiliated with any one organization. Our focus is on hyper-local announcements rather than nationally- or internationally-focused graphics, news, and content, though we do include some virtual events that movement participants submit.

How does Sunbird interface with larger established organizations?

In many movements, there are large, well-funded organizations that, despite their good intentions, undermine movements when they try to establish a central role as the single or authoritative voice of the movement. Just as resistance movements in Palestine collaborate to enable diverse forms of political action to take place alongside each other, we see Sunbird as encouraging a plural and diverse movement not monopolized by any one group. In places where a single organization has been able to establish itself as the “authoritative” voice of the Palestinian movement, this often undermines independent initiatives. These organizations can limit the bravery, ferocity, or creativity of movements, as the organizers are too cautious, unprepared, or incapable of directing those initiatives.

By using an anonymous switchboard-style model instead of the centralized model we have seen in the past from groups like the ANSWER [Act Now to Stop War and End Racism] coalition or PSL [Party for Socialism and Liberation], we protect all organizers—regardless of organization—from being held responsible for the activity of the movement as a whole. This is especially important in Texas in the wake of McKesson vs. Doe.

What has Sunbird enabled people to do?

During the first violent crackdown on students and community members, on April 24, Sunbird sent out live announcements to help keep students safe as state troopers called in from Houston violently attacked a planned rally. Sunbird facilitated the distribution of a jail support hotline phone number and circulated updates on police movements and other developments, helping students to remain calm amid the worst state violence seen on campus in decades. 

A student paints a sign at the South Mall on April 25, 2024.

The courage and intelligence of the crowd in these moments—as well as the care, commitment, and initiative of ordinary students who were transformed by their experiences—represent an important corrective to the inertia one often finds in larger organizations.

Over the following days, Sunbird became a crucial element of infrastructure for students and others who wanted to organize events in the Liberated Zone. We invited everyone to submit event announcements, which we circulated on their behalf. We ourselves organized no events in the Liberated Zone, but we received event submissions from dozens of people and organizations, including a Popular University organized by the student organization that had planned the original protest on April 24, a talk from a doctor who had recently returned from medical mission in Gaza, and a call for musicians to participate in a jam session—not to mention reading groups, live call-ins with other student encampments, art makes, meetings for various newly-formed groups, and workshops on direct action, protest first aid, digital security, and the legal system for protesters.

We helped coordinate large supply runs for the Liberated Zone, helping off-campus supporters figure out the on-the-ground needs for food, water, art supplies, literature, and shade. We also helped put people in touch who took on the responsibility of storing these materials every night and bringing them back to the Liberated Zone each morning.

Many people told us that they would not have felt comfortable planning things without the anonymity, support, and encouragment that Sunbird provided. It often occurred that people would message Sunbird with an idea, saying something like “I think students/alumni/artists should…” In response, we encouraged people to organize events themselves and to use Sunbird to promote them. This approach to political organizing contrasts with the narrow vision of political change that is common among non-profit organizations and authoritarian political groups, which seek to maintain tight control on who participates in a movement and how. For our part, we believe that movements are stronger when people are able to determine for themselves how to contribute their particular talents, experiences, capacities, and specialized knowledge; the role of organizers should be to encourage autonomous initiatives.

Through Sunbird, University Baptist Church, which is located just off campus, declared itself a sanctuary space. Intitially imagined as a police-free space for student protestors fleeing violence, over the course of a few weeks the UBC space became a robust movement space with nightly dinners, workshops including media and legal trainings for those who had been banned from campus, and a place to store materials that could not be kept on campus overnight. The church held a nightly dinner for almost three weeks before switching to a weekly dinner. Arrestees from April 24 and 29 have used this space as a place to heal and plan as they face legal charges and pending disciplinary action. Here, Sunbird helped not by seeking to impose any one vision of organization, but by encouraging and promoting different local iniatives, in this case helping to put the pastor of the University Baptist Church in touch with people who had been contacting Sunbird looking for a space to hold workshops. 

The first meeting of graduate students concerned about Palestine was announced via a message through Sunbird and took place in the Liberated Zone. No one there acknowledged being the person who posted the call, but within an hour, over 30 graduate students had formed a new robust organization with plans to coordinate graduation day actions and to draft a letter from the grad students to UT Austin president Jay Hartzell. As of today, the letter has well over 1000 signatures and graduate students are continuing to talk into the summer about how to use or withhold their labor to continue to pressure the university in the fall.

On April 29, we were contacted by students who were planning to set up an encampment. We were able to send out live updates during a second violent crackdown by Texas state troopers on UT campus, which led to the largest mass arrest in Austin since the anti-apartheid movement and the largest mass arrest with charges in this city’s entire history. Receiving live updates from people on the ground, Sunbird was able to help many people quickly mobilize to join and defend the students. We also shared announcements about post-arrest support logistics, including a jail support vigil that ran for nearly 48 hours as the arrestees were released.

On Commencement Day, several student walkouts took place at graduation ceremonies while other actions occurred around campus. All of these were announced on our Signal channels or described in live updates we received from students in attendance. 

Demonstrators stand with linked arms to protect a solidarity encampment at the University of Texas, calling attention to the university’s relationship with defense companies on April 29, 2024.

Have there been any similar efforts in Austin since Sunbird got started? How have those fared? Can those efforts show us anything about how best to use this model, or what it is best for?

Yes. Both larger organizations and autonomous initiatives have started announcement-only Signal groups clearly inspired by Sunbird or attempting to compete with it.

In the group started by a larger organization, several admins were using their legal names, a practice we would caution against as it can allow the state to target organizers. Furthermore, a group like this can easily become limited in perspective, since it is not informed by submissions from other participants in the movement.

In general, it appears that the groups set up to compete with Sunbird were not able to last as long or experience as much success as we did because they did not adopt the principles we used to run Sunbird. The messages they posted were often poorly formatted, included conflicting or alarmist information, and did not foster the same sense that users could directly participate and interact with the admins. This was acceptable if you only wanted to receive announcements from organizers telling you what to do, but many found this a disempowering experience.

On the other hand, when smaller autonomous initiatives such as the church canteen or the organized arrestees have started announcement threads, it has been clear that the announcements are specific to those entities. In these cases, the model that Sunbird provided as an announcement-only thread was adopted, becoming part of a more broadly shared strategic intelligence across social movements in Austin.

How do you anticipate that the model you are employing might be repressed or coopted? Do you have any ideas for how people like you might deal with such challenges in the future?

This model cuts against the impulse to manage or consolidate. Our commitment to the principles outlined above sets Sunbird apart from established organizations. We have gained much of our influence by being calm and faithful cheerleaders of initiatives of all kinds. We sincerely want the movement to win. Established organizations want a megaphone for themselves, not a switchboard for everyone, so a model like this would probably feel like a waste of time compared to the larger reach available via social media. Our wager is that the movement itself requires a reliable switchboard that platforms many kinds of initiatives and trusts the creativity and intelligence of the participants. Without this advantage, we suspect that competing sectarian announcement threads would quickly fade into irrelevance or be eclipsed by better models.

Packing up signs after a protest at the University of Texas campus on April 25, 2024.

Start Your Own Announcements-Only Service on Signal

1) Obtain a burner phone and set up Signal on the burner. Use Signal settings to hide the phone number and set up a Signal username. To assist people in contacting you, post your Signal username in your profile byline.

2) Assemble a few trustworthy friends who are willing to take turns as admins. This is the hardest part. These individuals must be reliable, good writers, and willing to sit in front of a screen during entire shifts. The group of admins must be large enough that everyone can take breaks so as not to burn out, while being available to offer second opinions or review message drafts; but it should be small enough that everyone can trust each other and the identities of the admins won’t be widely known. Because of state repression, maintaining the admins’ anyonymity is of utmost importance. This is not something to discuss freely or in public organizing spaces; the admins’ identities should only be revealed on a need-to-know basis.

3) Install Signal desktop on the admins’ laptops (this is currently limited to five devices). Have each admin send the QR code from their Signal desktop to the person holding the burner phone to link their device to the same Signal account. If you already use Signal desktop, you can download Signal Desktop Beta to use for your own personal device and link your shared admin account to the more secure and stable Signal Desktop app.  

4) Set up shifts. Shorter shifts are better during high-activity periods when admins must be monitoring messages constantly. During lulls, day-long shifts are feasible.

5) Set up a separate Signal group for admins. This is a good place to discuss message framing, workshop tricky submissions, and generally figure out how to stay on the same page. Determine a setting for disappearing messages that is long enough for consistency and short enough for security (we set our timer to one day). Utilize riseup pads as secure ways to draft messages, keep track of important contacts, paste old messages for reference, and keep lists such as supplies offered/supplies needed.

6) Set up the announcement thread with your burner number as the group admin and adjust the settings so that only admins can send messages to the group. Put a description of the function of the group and instructions for sending submissions (including your admin account’s Signal username) in the description of the group.

7) Advertise your group! We created small flyers with a description of the group’s function on one side and a QR code on the other. Friends of ours passed these out at large rallies and marches, explaining what Sunbird is and actively guiding people in downloading the app and setting up a Signal account. Our group’s growth started slowly, then snowballed as more people added their friends. Eventually, we reached the 1000-person Signal group maximum capacity and started a second mirror group to which we forwarded all the messages posted to the first group. If you do this, be sure to link successive groups in the initial group’s description so folks can easily send it to their friends.

8) Start sending messages! There are a few that we would send at least once a day: “What is Sunbird?” “How to hide your phone number and create a username,” and “How make an announcement or submit an event to Sunbird.” We sent out daily schedules comprised of submitted events, supplies needed at the encampment, and requests from people wanting to connect with others to get organized. 

9) Dispatch trusted friends to actions and events to send you live updates via text, photo, and video.

Police use chemical weapons to attack protesters at the University of Texas on April 29, 2024.

Share some tips for writing Signal announcements.

Use a calm, helpful tone. Sunbird was not just a source of information; during high-intensity moments, it was a source of reassurance. Responding to direct messages in a timely manner instills trust in those messaging Sunbird with requests and submissions.

Forward a wide range of submissions. Include those from larger organizations and individuals while maintaining a focus on live local events and updates; steer away from analysis, national or international news, fundraisers, and the like (all of which have ample platforms in other spaces). 

Synthesize reports on police, university employees, and Zionist presence. Follow SALUTE protocols (specifying the Size, Activity, Location, Unit, Time, and Equipment of groups as applicable). Avoid spreading fear or rumors. 

Send clear, well-written messages. Put effort into good formating and add emojis for readability. This will convey that your account is serious and trustworthy.

Clearly distinguish the messages you draft yourselves from messages forwarded to you. We include ”FWD:” at the beginning of all forwarded messages and “Sunbird here!” at the beginning of messages that we author. 

Avoid linking to sites like Instagram and Twitter. We are actively trying to create alternative platforms to the exploitative and empty ones offered by Meta and Elon Musk.

An example of an announcement on Sunbird.

What principles can make a switchboard service like Sunbird successful? 

No one way works. Our movements are powerful when everyone takes initiative. This means that we post events and messages from everyone in the movement, seeking not to monopolize or centralize control but to proliferate a sense of empowerment and participation. While the power of running a platform might make sectarian decisions to exclude certain groups seem appealing, over the long run, this sort of control and exclusion runs contrary to the goal of the platform and could undermine trust in it. 

Tell no lies, claim no easy victories. We work hard to verify all the information we send out. In some cases, this has meant following up to verify that jail support forms calling for confidential information or fundraisers for medical support were being hosted by trusted groups—that they were not honeypots or scams. Overwhelming people with poorly written, factually dubious messages is a surefire way to lose the respect and attention of movement participants.

Don’t Panic, Stay Tight, We’re Gonna Be Alright. In high-stakes protest scenarios, fear and panic can rapidly sap a crowd of confidence and undermine the bravery, determination, and resolve necessary to keep everyone safe and accomplish goals. While Sunbird played a crucial role providing live updates, we made an effort to keep our announcements factual. At some points, we held off on posting information (like confirmed gatherings of police far away from campus) that might instill panic rather than equipping people to act. 

No Police Orders. The police have megaphones, guns, chemical weapons, and the backing of the courts and the prison system. They can announce their own orders and to enforce them. While other announcement threads reposted police dispersal orders or the ever-shifting rules of university bureaucrats, we chose to not amplify the messages of our enemies. 

Take yourselves seriously. We are doing this because we want to stop the genocide in Gaza and because we are revolutionaries who believe in the liberation of Palestine and all oppressed peoples. The least you can do is take your historic task seriously: spend the extra time it takes to format things nicely, write clearly, treat every communication with the respect it deserves. The political culture in the US that treats “activism” as an unserious hobby undermines our movements and often results in people treating the political projects they value deeply with less care than the work they do for the careers they hate or the degrees they don’t really care about.   

Professors, students, and supporters demonstrating at the University of Texas Austin campus on April 25, 2024

#Signal #announcements #communications #anarchy #anarchism #protest #revolution #riot #revolt

[dnaamericaapp]

The Tale Of America: (Picture 1.) The Supreme Court Effectively Abolishes The Right To Mass Protest In Three US States. (Picture 2.) January 6 Insurrectionists Had A Great Day In The Supreme Court Today

Picture 1.: The Supreme Court announced on Monday that it will not hear Mckesson v. Doe. The decision not to hear Mckesson leaves in place a lower court decision that effectively eliminated the right to organize a mass protest in the states of Louisiana, Mississippi, and Texas.

Under that lower court decision, a protest organizer faces potentially ruinous financial consequences if a single attendee at a mass protest commits an illegal act.

It is possible that this outcome will be temporary. The Court did not embrace the United States Court of Appeals for the Fifth Circuit’s decision attacking the First Amendment right to protest, but it did not reverse it either. That means that, at least for now, the Fifth Circuit’s decision is the law in much of the American South.

Picture 2.: The Supreme Court spent about an hour and a half on Tuesday morning arguing over whether to make it much harder for the Justice Department to prosecute hundreds of people who joined the January 6, 2021, attack on the US Capitol.

It appears, after Tuesday’s arguments, that a majority of the justices will side with the insurrectionists — though it is far from clear how those justices will justify such an outcome.

The case, known as Fischer v. United States, involved a federal law which provides that anyone who “obstructs, influences, or impedes any official proceeding, or attempts to do so” commits a very serious federal felony and can be imprisoned for up to 20 years — although, as Solicitor General Elizabeth Prelogar pointed out during Tuesday’s argument, actual sentences against January 6 defendants convicted under this statute have been much shorter, normally ranging from a little less than one year to slightly over two years. -(source: vox)

DNA America

“It’s what we know, not what you want us to believe.”

#dna #dnaamerica #news #politics

#dna #dnaamerica #news #politics

[mongowheelie]

I found this on NewsBreak: The Supreme Court effectively abolishes the right to mass protest in three US states

I found this on NewsBreak: The Supreme Court effectively abolishes the right to mass protest in three US states

So much much for the 1st Amendment! How does this not allow the right to assemble? This goes against the Constitution! WTF!

[pscottm]

The Supreme Court announced on Monday that it will not hear Mckesson v. Doe. The decision not to hear Mckesson leaves in place a lower court decision that effectively eliminated the right to organize a mass protest in the states of Louisiana, Mississippi, and Texas.

Under that lower court decision, a protest organizer faces potentially ruinous financial consequences if a single attendee at a mass protest commits an illegal act.

It is possible that this outcome will be temporary. The Court did not embrace the United States Court of Appeals for the Fifth Circuit’s decision attacking the First Amendment right to protest, but it did not reverse it either. That means that, at least for now, the Fifth Circuit’s decision is the law in much of the American South.

For the past several years, the Fifth Circuit has engaged in a crusade against DeRay Mckesson, a prominent figure within the Black Lives Matter movement who organized a protest near a Baton Rouge police station in 2016.

The facts of the Mckesson case are, unfortunately, quite tragic. Mckesson helped organize the Baton Rouge protest following the fatal police shooting of Alton Sterling. During that protest, an unknown individual threw a rock or similar object at a police officer, the plaintiff in the Mckesson case who is identified only as “Officer John Doe.” Sadly, the officer was struck in the face and, according to one court, suffered “injuries to his teeth, jaw, brain, and head.”

Everyone agrees that this rock was not thrown by Mckesson, however. And the Supreme Court held in NAACP v. Claiborne Hardware (1982) that protest leaders cannot be held liable for the violent actions of a protest participant, absent unusual circumstances that are not present in the Mckesson case — such as if Mckesson had “authorized, directed, or ratified” the decision to throw the rock.

Indeed, as Justice Sonia Sotomayor points out in a brief opinion accompanying the Court’s decision not to hear Mckesson, the Court recently reaffirmed the strong First Amendment protections enjoyed by people like Mckesson in Counterman v. Colorado (2023). That decision held that the First Amendment “precludes punishment” for inciting violent action “unless the speaker’s words were ‘intended’ (not just likely) to produce imminent disorder.”

The reason Claiborne protects protest organizers should be obvious. No one who organizes a mass event attended by thousands of people can possibly control the actions of all those attendees, regardless of whether the event is a political protest, a music concert, or the Super Bowl. So, if protest organizers can be sanctioned for the illegal action of any protest attendee, no one in their right mind would ever organize a political protest again.

Indeed, as Fifth Circuit Judge Don Willett, who dissented from his court’s Mckesson decision, warned in one of his dissents, his court’s decision would make protest organizers liable for “the unlawful acts of counter-protesters and agitators.” So, under the Fifth Circuit’s rule, a Ku Klux Klansman could sabotage the Black Lives Matter movement simply by showing up at its protests and throwing stones.

[justinspoliticalcorner]

Ian Millhiser at Vox:

The Supreme Court spent about an hour and a half on Tuesday morning arguing over whether to make it much harder for the Justice Department to prosecute hundreds of people who joined the January 6, 2021, attack on the US Capitol. It appears, after Tuesday’s arguments, that a majority of the justices will side with the insurrectionists — though it is far from clear how those justices will justify such an outcome. The case, known as Fischer v. United States, involved a federal law which provides that anyone who “obstructs, influences, or impedes any official proceeding, or attempts to do so” commits a very serious federal felony and can be imprisoned for up to 20 years — although, as Solicitor General Elizabeth Prelogar pointed out during Tuesday’s argument, actual sentences against January 6 defendants convicted under this statute have been much shorter, normally ranging from a little less than one year to slightly over two years.

According to the Justice Department, more than 1,265 people have been arrested for playing some role in the attack on the Capitol. Approximately 330 of them have been charged under the obstruction statute at issue in Fischer. One of them is Donald Trump. As a federal appeals court held in its decision in this case, the obstruction statute is pretty darn clear that it applies to an effort to obstruct any congressional proceeding intended to certify the result of a presidential election — like the proceeding that the January 6 rioters attacked. And very few of the justices seemed to agree with Jeffrey Green, the lawyer representing a January 6 defendant, who proposed one way to read the statute more narrowly.

Nevertheless, many of the justices expressed concerns that the law sweeps too broadly and that it must be narrowed to prevent people who engage in relatively benign activity from being prosecuted. Justice Samuel Alito, for example, expressed uncharacteristic sympathy for hecklers who interrupt a Supreme Court hearing — suggesting that prosecuting them under a statute that can carry a 20-year sentence goes too far. Justice Neil Gorsuch expressed similar concerns about prosecuting someone who peacefully conducts a sit-in to delay a court hearing, or someone who pulls a fire alarm to disrupt an official proceeding.

Indeed, Tuesday’s argument had a bit of a split personality. During Green’s time at the podium, most of the justices took turns criticizing his attempts to read the ban on obstructing an official proceeding narrowly. Even Alito, who is normally the Court’s most reliable vote for any outcome preferred by the Republican Party, got in on the game — telling Green that he “may be biting off more than [he] can chew” by arguing that the statute must be read to benefit his client. By the time Green sat down, it appeared that he could lose in a 9–0 decision. But any optimism that the Justice Department might have had early on in the argument must have been shattered almost as soon as Prelogar began her argument. Most of the justices peppered her with skeptical questions, although the justices who seemed to want to limit the obstruction statute struggled to agree on a single legal theory that would allow them to do so. So the bottom line is that this case is probably going to end well for many January 6 defendants, but it is far from clear how the Court will justify such an outcome.

[...]

The Court’s sympathy for political protesters appears to be quite selective

Much of the skepticism Prelogar faced seemed to be rooted in some of the justices’ fears that ordinary political protests may be squelched by an overbroad reading of the obstruction statute. So it is worth noting another decision that the Court handed down just one day before the argument in Fischer. In Mckesson v. Doe, the right-wing United States Court of Appeals for the Fifth Circuit effectively eliminated the right to organize a political protest — holding that protest leaders could face ruinous financial liability if a single protest attendee commits an illegal act. This decision is completely at odds with a long line of the Supreme Court’s First Amendment precedents. And yet, on Monday, the Court announced that it would not hear the Mckesson case, leaving the Fifth Circuit’s decision in place. It is still possible that the Supreme Court will correct the Fifth Circuit’s error in Mckesson at some later date. But it’s notable that the Court felt no urgency to do so in that case, while it spent the Fischer argument thinking about how to shut down some hypothetical future case where the government may not show adequate respect for First Amendment rights. The Mckesson case, moreover, involved a Black Lives Matter protest, while the Fischer case involved a pro-Trump insurrection. If nothing else, this is a terrible look for the Supreme Court. And it suggests that many of the justices’ concerns about free speech depend on whether they agree with the political views of the speaker.

Based on the oral arguments heard in the Fischer v. United States case at SCOTUS, the right-wing majority on the court is likely to side with Capitol Insurrectionists charged with obstructing an official proceeding.

Combined with this and the refusal to take up McKesson v. Doe, SCOTUS is in the tank for sympathies for right-wing protesters.

See Also:

HuffPost: Supreme Court Conservatives Appear Skeptical Of The Law Used To Charge Hundreds Of Jan. 6 Insurrectionists

#SCOTUS #Capitol Insurrection #Fischer v. United States #Donald Trump #US Department of Justice #Elizabeth Prelogar #Jeffrey Green #Joseph Fischer #McKesson v. Doe

[northcarolinaprelawland-blog]

A Look Into Protesters Rights and The First Amendment

By Elliona Bannerman, North Carolina Central University, Class of 2022

December 29, 2023

The First Amendment of the constitution states Congress makes no law according to religion or prohibiting the free exercise [1]. This amendment protects the freedom of speech, press, assembly, and the right to petition the Government without fear of punishment [1]. Simply put, this amendment affords a citizen the right to exercise their freedom to voice their thoughts without Congress being able to make a law against it. This can be difficult as it relates to protesters which can end in rioting and as a result people end up killed, beatings, pepper spray, and so forth. This often leads into those protesting being charged and sentenced to jail time, which is the purpose of this article to take a closer look into cases of protester rights and see how the first amendment contributes to the case.

In 2016, the case, Doe v. McKesson, involved a protest led by DeRay Mckesson that was based around the Black Lives Matter platform [2]. During the protest, an attendee struck a police officer named John Doe who is a part of the Baton Rouge Police Department, with an object that caused severe injuries to the officer [2]. The officer sued McKesson, stating that he organized and led the protest, so he “should have known” that violence is likely to follow [2]. This is because the protest was conducted in front of the police department, blocking entry and access to the street, with McKesson directing the protest throughout [2]. A history is shown of McKesson protests across the country that often leads to violence that includes property damage [2]. The case was dismissed in 2017 by the District Court of Louisiana that held the First Amendment and the constitutional rule that protesters and leaders can’t be liable for the actions (violent or not) of a third party unless that intentional or personally “authorized” the violence [3].

The case then went through a series of appeals with the Fifth Circuit reversing the decision and which led towards the U.S. The Supreme Court heard the case, and they ruled to vacate the Fifth Circuit decision and direct it back to the Louisiana Supreme Court to address the case in relation to the state law [3]. The case is currently in review stage by the Supreme Court, which was filed by McKesson on October 5, 2023 [3]. This case is an example of the challenge of the First Amendment and Protesting, with how it is a complex case to decide whether an individual involved in a protest can be held accountable for their actions if it results in violence or rioting. In May 2020, there were various protests happening across the world due to the killing of George Floyd by the police, and some resulted in violence between law enforcement and citizens. Since then the uproar of protests has been increasing around the country with some being held accountable for their actions in the court of law. In the state of North Carolina, Governor Cooper introduced two bills into law that discusses anti-rioting which is titled Prevent Rioting and Civil Disorder bill [4]. This increases the punishments of rioting or inciting a riot by individuals that leads to damage to property,injury, or death [4].

Those who advocate for the new law acknowledge the constitutional right of the First Amendment, but they feel those who cause peaceful protests to turn into chaos, must be held accountable in the court of law [4]. While opponents of the law fear the bill can silence voices because of the possibility of losing your right to vote if they are charged by this bill which is considered a felony [4].

The American Civil Liberties Union has established on their website information for protesters to know to protect themselves according to the First Amendment and what steps to take for preparation [5]. However, the police and government are allowed to place certain restrictions on the speech rights according to their laws to ensure the safety of communities within that specific city and state.

______________________________________________________________

[1] White House Gov. (2023). The constitution. Retrieved from https://www.whitehouse.gov/about-the-white-house/our-government/the-constitution/#:~:text=The%20First%20Amendment%20provides%20that,the%20right%20to%20bear%20 arms. [2] US Courts. (2023). United States Court of Appeals for the Fifth circuit. Retrieved from https://www.ca5.uscourts.gov/opinions/pub/17/17-30864-CV4.pdf [3] ACLU. (2023). Retrieved from https://www.aclu.org/cases/doe-v-mckesson [4] ABC 11. (2023). Anti-rioting bill becomes law without Gov. Cooper’s signature. Retrieved from https://abc11.com/rioting-stiffer-penalties-for-rioters-gov-roy-cooper-anti-rioting-bill/129 75325/ [5] ACLU. (2023). Know your rights: Protesters’ rights. Retrieved from https://www.aclu.org/know-your-rights/protesters-rights

[gettothestabbing]

At a July 9, 2016 protest that social media star Mckesson (who has a million followers on Twitter) unlawfully led onto a highway in Baton Rouge, Louisiana, the police officer involved suffered brain trauma, a head injury, and lost teeth after an unknown assailant threw a rock or piece of concrete at him. Mckesson, who had encouraged people to block Airline Highway outside the city’s police headquarters, managed to extract a cash payment from the city over his allegedly heavy-handed, livestreamed arrest, as the Advocate reported Nov. 22, 2016.

Mckesson also supports looting as a way to advance the Black Lives Matter movement. During a teaching gig Yale University gave him for being a famous leftist, he led a class in a discussion of “In Defense of Looting,” an essay by Willie Osterweil. Mckesson’s  talk was a mixture of black liberation theology, critical race theory, banal Marxist cliches, and anarchism.

Then-President Barack Obama honored Mckesson and other Black Lives Matter leaders, meeting with them at the White House on Feb. 18, 2016, the Baltimore Sun reported. Afterwards, Obama praised Mckesson, saying he had carried out “outstanding work mobilizing in Baltimore.”

Surprisingly, Mckesson prevailed in Mckesson v. Doe, an unsigned 7-1 opinion that was handed down Nov. 2 by the high court. Justice Clarence Thomas dissented from the ruling but did not explain why. Justice Amy Coney Barrett, who had just arrived at the court days before, did not participate in the case.

The lazy justices of the Supreme Court couldn’t even be bothered to hold oral arguments in the case. They just did what Mckesson and his ACLU lawyers told them to do.

In the lawsuit, the police officer had sought to recover damages from Mckesson on the theory that he negligently staged the protest in a way that caused the assault.

In 2017, U.S. District Judge Brian A. Jackson, an Obama appointee, ruled that neither Mckesson nor the Black Lives Matter movement could be sued. Jackson threw out the negligence claim, finding it was barred by the First Amendment.

The policeman, identified pseudonymously as John Doe, appealed, and in 2019, the U.S. Court of Appeals for the 5th Circuit revived the lawsuit as to Mckesson but dismissed the claim against Black Lives Matter, finding it wasn’t a legal entity capable of being sued.

“We perceive no Constitutional issue with Mckesson being held liable for injuries caused by a combination of his own ... conduct and the violent actions of another that were foreseeable as a result of that ... conduct,” Judge E. Grady Jolly, a Reagan appointee, wrote for the circuit court.

Although Louisiana law generally imposes no “duty to protect others from the criminal activities of third persons,” the circuit court found that a jury could plausibly find that Mckesson breached his “duty not to negligently precipitate the crime of a third party” because “a violent confrontation with a police officer was a foreseeable effect of negligently directing a protest” onto the highway.

Mckesson argued in a petition filed with the Supreme Court that his First Amendment-protected rights of freedom of speech and assembly trumped any claim against him for leading the demonstration.

The Supreme Court noted that “Mckesson contends that his role in leading the protest onto the highway, even if negligent and punishable as a misdemeanor, cannot make him personally liable for the violent act of an individual whose only association with him was attendance at the protest.”

The high court questioned whether Louisiana law, which the 5th Circuit noted does not impose a duty to protect others from the criminal activities of third persons, allows the recovery of damages for negligently directing a protest. The circuit court’s interpretation of state law was “too uncertain a premise on which to address the [constitutional] question presented,” the justices held.

“[T]he Fifth Circuit should not have ventured into so uncertain an area of tort law—one laden with value judgments and fraught with implications for First Amendment rights—without first seeking guidance on potentially controlling Louisiana law from the Louisiana Supreme Court.”  

Mckesson hailed the ruling that allows him to return to terrorizing police officers for doing their jobs.

“I’ve been in this legal battle since Nov 2016 and the Supreme Court vacated the 5th Circuit decision against me that said that individual organizers can be civilly liable for injuries/damages. This is [a] win for every organizer and activist. Let’s keep fighting,” he wrote on Twitter after the decision was made public.

This, of course, is the same Supreme Court that allegedly has a conservative supermajority.

In this era of a growing lack of respect for the rule of law, property rights, and economic freedom, bursting with militants like DeRay Mckesson who want to burn it all down, the highest court in the land couldn’t even be bothered to conduct a one-hour public hearing about holding leftists accountable for their public temper tantrums that lead to bodily harm.

Not even when an assailant tries to murder a cop to foment civil unrest.

Think about that.

#SCOTUS #Mckesson v. Doe #DeRay Mckesson #police #protests #rioting #courts #BlackLivesMatter #lawsuits #negligence #attempts #Fifth Circuit #ACLU #looting #emphasis added to original #Matthew Vadum #I can see the court's perspective on this but I'm deeply concerned

[iihbki3]

Mckesson v. Doe https://t.co/YlW1Lrg3Ym United States Supreme Court cases https://t.co/rb6zsjMmwE https://t.co/8M4Dv41z5v

#Mckesson v. Doe https://t.co/YlW1Lrg3Ym United States Supreme Court cases https://t.co/rb6zsjMmwE ht

[maxwellyjordan]

Wednesday round-up

Amy Howe reports for this blog, in a post that first appeared at Howe on the Court, that yesterday the court denied, at least for now, “a request by the federal government to put a temporary hold on an order by a federal court that could lead to the release or transfer of over 800 inmates from a federal prison where nine inmates have died from COVID-19.” For The Washington Post (subscription required), Robert Barnes reports that “[t]he court left open the door for the administration[:] It said a new filing could be appropriate later after the case proceeded through lower courts.” Additional coverage comes from Adam Liptak for The New York Times, who reports that “Justices Clarence Thomas, Samuel A. Alito Jr. and Neil M. Gorsuch said they would have granted the administration’s request for a stay.”

Yesterday the court also released orders from last week’s conference; the justices did not add any new cases to their merits docket. Amy Howe covers the order list for this blog, in a post that first appeared at Howe on the Court. At the Election Law Blog, Rick Hasen finds Monday’s denial without comment of the cert petition in Higginson v. Becerra, a challenge to California’s Voting Rights Act, surprising, because he “had thought this attack on the CA VRA could capture the attention of some of the Court’s conservatives, given their writings about race-based remedies in voting more generally.”

At CNN, Jamie Ehrlich reports that “[t]he Supreme Court’s solid conservative majority could soon choose to take up its first major Second Amendment case in nearly a decade, positioning the court to override state laws established to limit the availability and accessibility of some firearms and when they can be carried in public.” The editorial board of The Washington Post argues that “[t]he fact that the Supreme Court is now more conservative than it was a decade ago is no reason to upend — once again — its Second Amendment directives.”

Briefly:

For this blog, in a post that first appeared at Howe on the Court, Amy Howe reports that “[a] southern California church has asked the Supreme Court to block the enforcement of stay-at-home orders issued by California and San Diego County, arguing that the orders are unconstitutional because they discriminate against places of worship.”

At Freedom Forum, Tony Mauro reports that “[t]he Supreme Court may soon add another key First Amendment case to its docket — this time touching on the amendment’s lesser-known rights of assembly and petition” – Mckesson v. Doe, a petition “urging the court to uphold its tradition of protecting the rights of protesters.”

At Legal Newsline, John Breslin covers Jarchow v. State Bar of Wisconsin, a pending petition “involving attorneys objecting to being compelled to join the Wisconsin state bar and pay fees.”

At the ImmigrationProf Blog, Nancy Morawetz argues that the cert petition in Albence v. Arteaga-Martinez, “a case on the rights of post-removal order detainees to an individualized bond hearing,” “is devoid of any plausible argument for certiorari other than that the grant is sought by the SG.”

We rely on our readers to send us links for our round-up. If you have or know of a recent (published in the last two or three days) article, post, podcast or op-ed relating to the Supreme Court that you’d like us to consider for inclusion in the round-up, please send it to roundup [at] scotusblog.com. Thank you!

The post Wednesday round-up appeared first on SCOTUSblog.

from Law https://www.scotusblog.com/2020/05/wednesday-round-up-526/ via http://www.rssmix.com/

#law #justice

[masterofd1saster]

CJ court watch 6 Nov 20

SCt sent  Mckesson v. Doe, 592 U. S. ____ (2020) back to the 5th Cir.  

Petitioner DeRay Mckesson organized a demonstration in Baton Rouge, Louisiana, to protest a shooting by a local police officer. The protesters, allegedly at Mckesson’s direction, occupied the highway in front of the police headquarters. As officers began making arrests to clear the highway, an unknown individual threw a “piece of concrete or a similar rock-like object,” striking respondent Officer Doe in the face. 945 F. 3d 818, 823 (CA5 2019). Officer Doe suffered devastating injuries in the line of duty, including loss of teeth and brain trauma.***

under the unusual circumstances we confront here, we conclude that the Fifth Circuit should not have ventured into so uncertain an area of tort law—one laden with value judgments and fraught with implications for First Amendment rights— without first seeking guidance on potentially controlling Louisiana law from the Louisiana Supreme Court. We express no opinion on the propriety of the Fifth Circuit certifying or resolving on its own any other issues of state law that the parties may raise on remand.***

The Court vacated and remanded the 5th Cir. judgment, so the case isn’t really precedent.

***

SCt beat down the 5th Cir. again in  Taylor v. Riojas, 592 U. S. ____ (2020).

Petitioner Trent Taylor is an inmate in the custody of the Texas Department of Criminal Justice. Taylor alleges that, for six full days in September 2013, correctional officers confined him in a pair of shockingly unsanitary cells.1 The first cell was covered, nearly floor to ceiling, in “‘massive amounts’ of feces”: all over the floor, the ceiling, the window, the walls, and even “‘packed inside the water faucet.’”  Taylor v. Stevens, 946 F. 3d 211, 218 (CA5 2019). Fearing that his food and water would be contaminated, Taylor did not eat or drink for nearly four days. Correctional officers then moved Taylor to a second, frigidly cold cell, which was equipped with only a clogged drain in the floor to dispose of bodily wastes. Taylor held his bladder for over 24 hours, but he eventually (and involuntarily) relieved himself, causing the drain to overflow and raw sewage to spill across the floor. Because the cell lacked a bunk, and because Taylor was confined without clothing, he was left to sleep naked in sewage.***

[5th Cir]  concluded that the prison officials responsible for Taylor’s confinement did not have “‘fair warning’ that their specific acts were unconstitutional.” 946 F. 3d, at 222 (quoting Hope v. Pelzer, 536 U. S. 730, 741 (2002)). The Fifth Circuit erred in granting the officers qualified immunity on this basis. “Qualified immunity shields an officer from suit when she makes a decision that, even if constitutionally deficient, reasonably misapprehends the law governing the circumstances she confronted.” Brosseau v. Haugen, 543 U. S. 194, 198 (2004) (per curiam). But no reasonable correctional officer could have concluded that, under the extreme circumstances of this case, it was constitutionally permissible to house Taylor in such deplorably unsanitary conditions for such an extended period of time.***

[supremekalmllc]

New Post has been published on https://supremekalm.com/the-dea-does-not-want-you-to-worry-about-its-new-hemp-rule-dont-take-the-bait/

The DEA Does Not Want You To Worry About Its New Hemp Rule. Don’t Take the Bait!

Last week the Drug Enforcement Administration (DEA) issued a bad interim hemp rule. I wrote that it was dangerous because I viewed it as making most hemp processing activities illegal if, at any point in processing hemp, the level of delta-9 THC increases beyond 0.3%– even if the hemp was remediated before it left the processor’s premises. My colleague Nathalie Bougenies wrote about how this interim rule could have devastating impacts on the burgeoning hemp-derived delta-8 THC industry. North Carolina attorney Rod Kight raised these concerns as well and he and I both spoke to Kyle Jaeger of Marijuana Moment about why we think are concerned about the DEA’s interim hemp rule.

According to LA Weekly, who contacted the DEA, the DEA has heard the concerns:

The DEA’s spokesman, Special Agent Sean Mitchell, kept it brief and first spoke to the general panic of the last week. “The DEA is aware of the concerns of the CBD industry, and is evaluating policy options,” he toldL.A. Weekly in a phone interview.

Special Agent Mitchell went on to downplay the concern by stating that the DEA has much more pressing priorities:

We asked if things went the way the industry feared, what would enforcement even look like? Specifically asking about the idea of the agency shutting down machinery in the middle of processing material to check if the contents had spiked over the legal THC threshold.

“The United States is in the midst of an opioid epidemic fueled by fentanyl and is seeing a strong resurgence of methamphetamine. DEA is focusing its resources on disrupting and dismantling the Mexican cartels that are trafficking these deadly substances into and across the nation,” Mitchell replied to the question.

I do not buy this misdirection for a minute. The DEA can talk the talk when it comes to the opioid crisis but it does not walk the walk. There is no doubt that the opioid epidemic is a more pressing issue than the legality of hemp derivatives. Despite this, the DEA has not aggressively gone after opioid manufacturers in the US. The Washington Post  and 60 Minutes provided a joint report on the DEA’s inability to prosecute major pharmaceutical companies. “After two years of painstaking inquiry, DEA investigators built the biggest case the agency had ever made against a drug company: McKesson Corporation, the country’s largest drug distributor.” In the end, the DEA dropped a case that could have resulted in a $1 Billion fine against McKesson in favor of a $150 Million fine. In addition, ProPublica went to great detail in reporting on how the DEA chose to drop a massive criminal case against Wal Mart over the sale of opioids.

The DEA is not going to just ignore hemp because it’s to focused on cutting sweet settlement deals to opioid manufacturers and distributors. In fact, the DEA is actively looking to expand its jurisdiction. As Buzzfeed News reported, the Department of Justice temporarily granted the DEA jurisdiction over the protests that erupted when police murdered George Floyd, regardless of whether there was any suspicion of drug activity.

Long before the DEA used the murder of George Floyd to obtain broad policing power, it tried to expand its jurisdiction to all parts of cannabis– not just varieties designated as marijuana. In October 2001, the DEA enacted an Interpretive Rule banning hemp seed and oil products containing “any amount” of tetrahydrocannabinol. The Hemp Industries Association, along with other industry groups, sued the DEA to stay the DEA interpretive Rule. The Ninth Circuit Court of Appeals granted HIA’s stay finding that the DEA did not have authority under the CSA to ban otherwise legal products. This meant that naturally-occuring THC found in legal parts of the cannabis plant was not covered by the CSA and the DEA could not assert its jurisdiction over THC through its interpretive rule. Hemp Industries Assoc. v. DEA, 333 F.3d 1082 (9th Cir.2003).

Shortly after, in March 2003, the DEA published two new Final Rules regarding industrial hemp products. The DEA issued a Final Clarification Rule banning hemp seed and oil food products that contain any amount of trace residual THC and issued a Final Interim Rule exempting hemp body care and fiber products from DEA control but prohibited the US manufacturers from importing hemp seed and oil. The HIA again sued the DEA in an attempt to stay these two rules.

The Ninth Circuit again found in favor of the HIA:

The DEA’s Final Rules purport to regulate foodstuffs containing “natural and synthetic THC.” And so they can:  in keeping with the definitions of drugs controlled under Schedule I of the CSA, the Final Rules can regulate foodstuffs containing natural THC if it is contained within marijuana, and can regulate synthetic THC of any kind.   But they cannot regulate naturally-occurring THC not contained within or derived from marijuana-i.e., non-psychoactive hemp products-because non-psychoactive hemp is not included in Schedule I. The DEA has no authority to regulate drugs that are not scheduled, and it has not followed procedures required to schedule a substance.

The DEA’s definition of “THC” contravenes the unambiguously expressed intent of Congress in the CSA and cannot be upheld.

Hemp Industries Ass’n v. DEA, 357 F.3d 1012 (9th Cir. 2004).

The Ninth Circuit’s decision turned on the fact that the CSA defined marijuana not to include certain parts of the cannabis plant including seeds incapable of germination. If you are interested in reading more about how we thought about the definition of marijuana, including what was and was not covered by the CSA prior to the enactment of the Farm Bill, you can check out this previous Canna Law Blog post.  In May 2018, the DEA issued an internal directive restating the holding in both HIA v. DEA cases.

Given the history of the DEA, especially when it comes to cannabis, we should not give the agency the benefit of the doubt. This is an agency that exists to fight the War on Drugs. In order to justify its existence, the DEA must ensure that the fight continues. The DEA may bow down to high powered pharmaceutical companies manufacturing opioids, but I doubt that many of the individuals making a living in the hemp industry have the political connections or money to intimidate the DEA.

That said, as the HIA has proven in the past, the DEA does not have unchecked authority. If you want to use your voice to halt the DEA’s attempt to stymie the hemp industry don’t forget to submit comments by October 20, 2020.

The post The DEA Does Not Want You To Worry About Its New Hemp Rule. Don’t Take the Bait! appeared first on Harris Bricken.