The right of assembly is not a license for violence — nor a warrant for collective punishment

The Reason report tells us that six sitting judges of the Fifth Circuit — spanning both the conservative and liberal wings of that court — have taken the unusual step of filing their own petition for certiorari in the Mckesson protest-liability case. That six judges of one circuit cannot agree on the answer, and feel compelled to ask the Supreme Court to settle the matter, is itself the loudest possible signal that a foundational question of American liberty hangs unresolved.

The civic question at the center is not complicated to state, even if it is difficult to adjudicate: may a person who organizes a lawful assembly be held liable in civil damages for the injurious act of some other person who chose to attend that assembly? Put plainly — can the convener of a crowd be made to answer for every soul in it?

I hold it self-evident — and I note this is my inference from principle, not a recollection of events I did not witness — that the right of citizens to assemble and petition for redress is among the most fragile of the liberties we secured. It is fragile precisely because it is always exercised in conditions of agitation, where passions run high and where the interests in power most wish it silenced. A rule that makes the organizer the insurer of every attendee's conduct would, in practice, extinguish the right of assembly entirely. No citizen, no movement, no cause could ever summon a crowd under such a sword.

And yet — here I pause with equal seriousness — the First Amendment has never been understood to consecrate incitement. If an organizer directs violence, or reasonably foresees it and proceeds to inflame it, the law has always retained a hand. The line between protected speech and actionable incitement is one of the most consequential in our jurisprudence, and the Mckesson petition, as described by Reason, places that line squarely before the Court.

Concentrated power, in my long experience of it, does not always wear a crown or a ministerial robe. Sometimes it wears a lawsuit. The threat of ruinous personal liability, visited upon any citizen bold enough to organize dissent, is as effective a suppression of liberty as any prior restraint. An educated citizenry must see through the legal instrument to the civic consequence: if organizers can be bankrupted for the acts of strangers, then only those with nothing to lose — or those with powerful backers — may lead a public demonstration. That is not a republic; that is a republic of the insulated.

I commend the six judges for their candor and their courage in seeking resolution. Whatever the Court decides, the decision will shape the practical meaning of the First Amendment for a generation. I would only counsel the justices to remember that the Assembly Clause was placed alongside Free Speech not as a decoration but as a co-equal pillar — and that a rule which chills one will always chill the other. Liberty is most in need of protection precisely when those in the street are saying things the comfortable would prefer not to hear.