From Fifth Circuit Judge Don Willett, joined by Judges Carl Stewart, James Graves, Stephen Higginson, Dana Douglas, and Irma Carrillo Ramirez, dissenting on Thursday in Ford v. Mckesson from denial of rehearing en banc:
The Supreme Court has already called the constitutional issue presented here "undeniably important": whether the First Amendment tolerates a negligent-protest theory that substitutes the mere foreseeability of a stranger's violence for intent. After a decade of litigation, full discovery, and another appeal, every threshold obstacle is gone. At last, the question is cleanly presented….
Every obstacle that complicated Supreme Court review in 2020 is now gone. The state-law uncertainty that prompted the Court's vacatur has been resolved. Discovery is complete. The pleading-stage assumptions have been tested. The district court entered final summary judgment. Counterman intervened, and the panel expressly held that it changes nothing. The en banc court has now declined to intervene.
The constitutional question is therefore squarely presented and unavoidable: may a political speaker be held liable under a negligence theory for an unidentified stranger's violence without proof that the speaker authorized, directed, ratified, or intentionally incited that violence? Claiborne, Counterman, and Brandenburg answer no. Our court now answers yes….
The Court should grant review and restore the constitutional line between advocacy and violence. Political speakers may be held to account for violence they commit, authorize, direct, ratify, or intentionally incite. But they may not be conscripted as insurers of a crowd—or as substitute defendants for an unknown assailant—simply because they were visible, prominent, and nearest the microphone.
This last paragraph is addressed to the Supreme Court; Judge Willett's opinion, in keeping with frequent legal usage, uses "the Court" to refer to the Supreme Court and "the court" to refer to the Fifth Circuit itself.
