The Right to Assembly

Judge Andrew P. Napolitano on Apr 18, 2024

The U.S. Court of Appeals for the 5th Circuit -- which covers Louisiana, Mississippi and Texas -- permitted the suit to move forward. McKesson asked the Supreme Court to intervene, and it declined to do so last week.

We have two fundamental legal issues intertwined here. The first is freedom of expression, and the second is vicarious liability.

Do expressive rights evaporate merely because someone in the audience became violent? Until last week, the universal answer to that was: No.

Indeed, the courts have many times rejected the so-called heckler's veto whereby a person adverse to the speaker causes a disruption that results in personal injury or property damage and the harmed parties sue the speaker. In those cases, the courts have held consistently that unless the speaker's words command and produce immediate lawless behavior, the speaker is not liable for the heckler's violence.

Vicarious liability -- holding A liable for the crimes or misbehavior of B -- often comes up in the First Amendment context. The modern jurisprudence has uniformly held that the right to free assembly is so integral to democracy, so well-rooted in our history, so necessary for effective free expression that it actually tolerates the violence that sometimes accompanies it. Were this not so, then hecklers would have their veto and there would be no such thing as free assembly.

In Chicago in 1946, a Roman Catholic priest, Father Arthur Terminiello, gave an incendiary speech attacking President Harry Truman. The speech drew nearly as many hecklers as it did appreciators. The hecklers stormed the stage and trashed the lecture venue. The Chicago police arrested Terminiello, not the hecklers. He was convicted of disorderly conduct and the Illinois courts upheld his conviction.

The Supreme Court reversed the conviction for the reasons that have now become a well-accepted aspect of our jurisprudence: All innocuous speech is absolutely protected; and all speech is innocuous when there is time for more speech to challenge it.

The McKesson decision is ridiculous. When the Giants last beat the Patriots in the Super Bowl, two drunks had a fight in the stadium. Can they sue Tom Brady? Of course not.

In McKesson's case, he neither advocated nor caused violence. Yet the court -- abandoning the Terminiello principles -- will allow an unnamed victim to sue him for what an unknown and unseen assailant did. This is a major blow to the freedom of expression. The court gave no reasons for its bizarre decision. One can hope that a jury will do the right thing; or the court, if it has this case again, will return to first principles.

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