To be black in America is to be conscious of the fact that everything you have can be taken from you by white people. They don’t need a reason, though they will always make one up. They don’t need a law, though they’re happy to use any old law against you. If enough white people agree, they can just take you: your stuff, your voice, or your life.
You think the Snap is terrifying? You think a comic-book supervillain blinking out half of existence in a randomly nihilistic act is a problem? Imagine living in a place where any cop or executive or white woman can merely think you’re a problem and then manifest a universe of forces against you. These forces are not random; they’re targeted. They can be marshaled against black people while hypocritically leaving white people alone. Black people are taken out all the time, and most white people don’t even have the decency to know they’re gone.
That is what white people in Louisiana are trying to do to DeRay Mckesson. They are trying to disappear the brother who many white people don’t even know is there.
For the uninitiated, Mckesson is one of the lead organizers of Black Lives Matter. Yes, that Black Lives Matter. He’s organized so many of the protests that he’s become synonymous with the movement; he has been a leading voice on the need to end police brutality, and he rocks a blue vest. He’s @DeRay. If you didn’t know before, now you know.
And he’s under attack. In 2016, Mckesson organized a BLM protest in Baton Rouge against the police killing of Alton Sterling. At the protest, a police officer assigned to monitor the event was struck by a rock or a brick. Mckesson did not throw the brick. He did not hand out bricks. He did not say, “Anybody who independently brought bricks should begin throwing them at the police.” It’s not even clear where he was in relation to the brick thrower at the time.
The injured officer, known in court documents as “Officer Doe,” filed a lawsuit against Black Lives Matter and Mckesson, alleging that they incited the violence. It’s hard to think of a more obvious example of all black people being blamed for the actions of one black person. Doe must think we all look the same or at the very least have similar arm strength.
The issue of whether organizers can be charged with incitement of violence is a hot-button issue these days because the president of the United States regularly incites violence and faces zero legal consequences for his actions. Donald Trump encourages violence against sitting members of Congress, and the law doesn’t come for him. Twitter won’t even come for him. Twitter, which is under no obligation to protect a person’s First Amendment rights, says it won’t stop white nationalists from using its platform, because it would have to ban too many Republicans.
In that context, Doe’s lawsuit against Mckesson is laughable. Doe’s filing was riddled with typos. It attributed no words of incitement to Mckesson. Trump says far more damaging and dangerous things at every single one of his rallies.
To be legally liable for incitement, you have to encourage imminent lawless action. Doe’s legal theory was basically that simply gathering a bunch of black people in the same place was obviously going to lead to lawlessness. It’s a legal theory that seems cribbed from The Birth of a Nation (the original).
As I said, the BLM rally went down in 2016. In 2017, a district-court judge threw out the charges. You can’t charge a movement with a crime, the judge argued, and Mckesson has a solid and obvious First Amendment right to organize a protest.
Last week, the notoriously conservative Fifth Circuit Court of Appeals reinstated the case against Mckesson. Three judges appointed by Republicans (one by Ronald Reagan, one by George W. Bush, and one by Trump) ruled that Mckesson could be held liable for Doe’s injuries if those injuries were a “foreseeable result” of the protest.
The judges made this decision without even hearing oral argument. That means that Mckesson and his lawyers didn’t have an opportunity to go to court and argue that the initial dismissal of the case should stand. As much as a court proceeding can be, this decision was made behind his back, in the figurative middle of the night.
Every black person above a certain age remembers these tactics. This is how law enforcement always comes for civil-rights leaders. The point isn’t even to win any particular case. It’s to wear them down. Mckesson now has to spend time, energy, and resources defending himself from this foolishness. He has to appeal to the pro-Trump Supreme Court or risk a jury trial as a black man in Louisiana.
Mckesson isn’t the only intended target of the Fifth Circuit’s machinations. I am. And you are. And so is anybody else who might even think of challenging the structures of white supremacy. We’re all supposed to remember who’s actually in charge. We’re all supposed to live in fear of any police officer who can scrawl out a typo-ridden complaint. We’re supposed to think twice. We’re supposed to take it.
I won’t. I don’t know Mckesson, but all the black people I do know are aware of the risks of challenging white people, and they do it anyway.
The Fifth Circuit has already lost because its attempts to chill the First Amendment rights of black people only make black people more determined to exercise those rights. You can take our heroes, but the struggle always continues. Black people always snap back.