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The Supreme Court effectively abolishes the right to mass protest in three US states

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The Supreme Court effectively abolishes the right to mass protest in three US states

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.”

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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.

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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.”

But the Supreme Court held that this “emotionally charged rhetoric … did not transcend the bounds of protected speech.” It ruled that courts must use “extreme care” before imposing liability on a political figure of any kind. And it held that a protest leader may only be held liable for a protest participant’s actions in very limited circumstances:

There are three separate theories that might justify holding Evers liable for the unlawful conduct of others. First, a finding that he authorized, directed, or ratified specific tortious activity would justify holding him responsible for the consequences of that activity. Second, a finding that his public speeches were likely to incite lawless action could justify holding him liable for unlawful conduct that in fact followed within a reasonable period. Third, the speeches might be taken as evidence that Evers gave other specific instructions to carry out violent acts or threats.

The Fifth Circuit conceded, in a 2019 opinion, that Officer Doe “has not pled facts that would allow a jury to conclude that Mckesson colluded with the unknown assailant to attack Officer Doe, knew of the attack and ratified it, or agreed with other named persons that attacking the police was one of the goals of the demonstration.” So that should have been the end of the case.

Instead, in its most recent opinion in this case, the Fifth Circuit concluded that Claiborne’s “three separate theories that might justify” holding a protest leader liable are a non-exhaustive list, and that the MAGA-infused court is allowed to create new exceptions to the First Amendment. It then ruled that the First Amendment does not apply “where a defendant creates unreasonably dangerous conditions, and where his creation of those conditions causes a plaintiff to sustain injuries.”

And what, exactly, were the “unreasonably dangerous conditions” created by the Mckesson-led protest in Baton Rouge? The Fifth Circuit faulted Mckesson for organizing “the protest to begin in front of the police station, obstructing access to the building,” for failing to “dissuade” protesters who allegedly stole water bottles from a grocery store, and for leading “the assembled protest onto a public highway, in violation of Louisiana criminal law.”

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Needless to say, the idea that the First Amendment recedes the moment a mass protest violates a traffic law is quite novel. And it is impossible to reconcile with pretty much the entire history of mass civil rights protests in the United States.

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Dr. Martin Luther King Jr. leads marchers in what the Fifth Circuit calls an “unreasonably dangerous” activity.
Morton Broffman/Getty Images

In fairness, the Court’s decision to leave the Fifth Circuit’s attack on the First Amendment in place could be temporary. As Sotomayor writes in her Mckesson opinion, when the Court announces that it will not hear a particular case it “expresses no view about the merits.” The Court could still restore the First Amendment right to protest in Louisiana, Mississippi, and Texas in a future case.

For the time being, however, the Fifth Circuit’s Mckesson decision remains good law in those three states. And that means that anyone who organizes a political protest within the Fifth Circuit risks catastrophic financial liability.

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Skydance sweetens Paramount bid with $3bn cash infusion

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Skydance sweetens Paramount bid with $3bn cash infusion

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Skydance and Shari Redstone’s holding company are offering a $3bn investment in Paramount in an effort to win support for a complex merger that has frustrated investors and led to the departure of the Hollywood group’s chief executive.

The offer, which includes $2bn in cash to common shareholders, came as Paramount chief executive Bob Bakish resigned on Monday, raising new questions about the future of the Hollywood group behind The Godfather

Redstone said on Monday: “The board and I thank Bob for his many contributions over his long career . . . we wish him all the best.”

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Redstone and Paramount’s board, which she chairs, have been trying to agree a deal to merge the company with David Ellison’s Skydance, the production company backed by his billionaire father, Larry Ellison, as well as RedBird Capital and KKR. 

Under the latest terms of the deal, Skydance would buy Redstone’s National Amusements for less than $2bn, not as much as previously discussed between the two sides, said people briefed about the matter.

Those people added that Paramount would then merge with Skydance, valuing Ellison’s company at about $5bn in an all-stock deal. The combination would value the existing common shares of Paramount about 30 per cent above its current trading share price.

The Ellison-led consortium would also invest a further $3bn in the combined company, the people said. Two-thirds of the investment would pay cash to holders of common shares by buying back their stock, with the remainder used to reduce Paramount’s debt.

Shareholders would have the option to either sell their shares in Paramount or keep the stock of the combined company, or a combination of the two, as the buyback would be limited to a maximum amount of $2bn. Paramount’s Class B common shares have a current market capitalisation of about $7bn.

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Paramount has a dual-class shareholding structure. Redstone’s NAI controls nearly 80 per cent of voting rights, but holds only 10 per cent of equity ownership. Many Paramount shareholders baulked at a previously proposed merger structure, which they argued would benefit Redstone at the cost of common shareholders. 

Redstone would remain an investor in the combined Paramount-Skydance, a move that aims to show her conviction that the Ellison-led group would turn round the fortunes of Paramount, which has struggled to compete with larger rivals such as Netflix in an expensive “streaming war”.

“There will be more alignment between [Redstone’s] interest and shareholders than before,” said one person familiar with the arrangement.

The Paramount board has set up a special committee to evaluate the plan.  

Paramount on Monday said a team of three executives — George Cheeks, Chris McCarthy and Brian Robbins — would replace Bakish, establishing an “office of the CEO”.

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Bakish, who had worked at the company and its predecessor Viacom for a quarter of a century, had previously been an ally of Redstone, who promoted him to chief executive of Viacom in 2016. But their relationship has deteriorated in recent months, according to several people familiar with the matter.

Bakish was paid a total of $31.5mn in 2023, according to a regulatory filing. 

Private equity group Apollo, in partnership with rival studio Sony, is also preparing to bid on Paramount as soon as this week, according to people familiar with the situation. Paramount recently rejected Apollo’s $26bn all-cash offer, and four members of the Paramount board have since withdrawn their names for re-election in June.

Paramount on Monday reported a net loss of $554mn on $7.7bn in revenue in the first quarter. The company did not take questions on its earnings call, which lasted less than 10 minutes.

“There’s no dressing this up — looks like a car crash with clear divisions among key stakeholders,” said analyst Paolo Pescatore at PP Insights.

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“The latest chapter in this ongoing saga looks to be taking another turn for the worse.”

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Oregon winners of historic $1.3 billion Powerball jackpot revealed

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Oregon winners of historic $1.3 billion Powerball jackpot revealed

The winners of Oregon’s largest-ever lottery jackpot — and the eighth-largest lottery win in the history of the United States — are Laiza Liem Chao, 55, of Milwaukie, and Cheng Saephan, 46, and Duanpen Saephan, 37, of Portland.

The Oregon Lottery announced their names with great fanfare in Salem on Monday.

“First, I want to thank God for giving me this beautiful prize,” said Cheng Saephan, the only winner to attend the official announcement at Oregon Lottery headquarters in Salem.

Cheng Saephan, his wife and Chao already have been paid, the couple and their friend splitting the $422,309,193.97 that remained of the $1.326 billion prize after state and federal taxes, lottery spokesperson Melanie Mesaros said. They opted for the one-time payout rather than the 30-year annuity, which also brought the amount down.

Cheng Saephan, who was born in Laos and moved to the United States from Thailand in 1994, said he is especially grateful that he will be able to provide a comfortable life for his family, which includes two children he has with his wife. As for himself, he doesn’t believe he’ll have that much time to enjoy his winnings because he is in the midst of battling cancer. He was first diagnosed in 2016, he said. His most recent chemotherapy treatment was a week ago.

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“How am I going to have time to spend all of this money?” Cheng Saephan said.

Cheng Saephan said he, his wife and their friend Chao bought 20 lottery tickets for $200. For several months before the big win he said he felt like he was going to win something — but he expected no more than several million, he said, not a jackpot in excess of $1 billion. He plans to buy a house with the money, he said.

He used to be a machinist working on airplane parts, he said.

Cheng Saephan said he told his friend and co-winner Chao about the big win over the phone. He asked her what she was doing and she said she was driving to work.

“You don’t have to work now,” Cheng Saephan said he told her.

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A man at the Salem event who identified himself as Cheng Saephan’s pastor said Saephan agreed to send him on missionary trips to Thailand, Laos and possibly China.

The historic winning Powerball ticket was sold at a Plaid Pantry convenience store in Northeast Portland. The store will get a $100,000 bonus for selling the winning ticket, the Oregon Lottery said.

“I want to offer my heartfelt congratulations to the Saephans and Ms. Chao on this historic win,” Oregon Lottery Director Mike Wells said in a statement. “Not only is the prize life-changing for the three of them and their families, it’s also a huge win for the state.”

— Fedor Zarkhin is a breaking news and enterprise reporter with a focus on crime. Reach him at 971-373-2905; fzarkhin@oregonian.

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Sticky German inflation curbs investors’ ECB rate cut expectations

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Sticky German inflation curbs investors’ ECB rate cut expectations

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German inflation rose slightly more than forecast in April on the back of strong food and energy prices in Europe’s largest economy, curbing investors’ hopes of a string of interest rate cuts this year.

Consumer prices in Germany increased 2.4 per cent in the year to April, rising from 2.3 per cent a month earlier, according to EU harmonised data released by the federal statistical agency Destatis on Monday. Economists polled by Reuters had expected a flat reading.

However, excluding underlying energy and food prices, Destatis reported core inflation had fallen from 3.3 per cent to 3 per cent.

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With Spain reporting a similar uptick in headline inflation coupled with a cooling of core price growth, the German figures chipped away at investors’ confidence about the extent of European Central Bank rate cuts this year.

The uptick in German inflation was “a good reminder of how difficult the last mile of bringing inflation sustainably back to 2 per cent will be for the ECB”, said Carsten Brzeski, an economist at ING.

Government bond yields, which move inversely to their prices, rose slightly on the news as investors trimmed their bets that the ECB will start cutting rates in just over a month. Despite the rise, Germany’s benchmark 10-year bond yield was still down almost 5 basis points at 2.53 per cent.

Senior ECB policymakers have said they are likely to cut rates for the first time in five years at their next policy meeting on June 6 as long as wages and price pressures keep cooling in line with their forecasts for inflation to drop to the bank’s 2 per cent target by next year.

A June rate cut by the ECB “still looks like a done deal”, Brzeski said.

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Eurozone inflation is expected to remain flat at 2.4 per cent, while core inflation in the bloc is expected to fall from 2.9 per cent to 2.7 per cent when that data is released on Tuesday.

Any overshoot could cause traders to doubt whether the ECB will start cutting rates in June, especially after hotter than forecast US inflation prompted them to reduce bets on the scale of Federal Reserve easing this year.

Recent business and consumer surveys show the eurozone economy is tentatively emerging from its recent stagnation and data on Tuesday is expected to show gross domestic product in the region expanded at a quarterly rate of 0.2 per cent in the three months to March.

But despite economic activity improving, most economists expect the fact that Easter was in March rather than April this year to lower airfare and package holiday prices in the past month, bringing down eurozone services inflation for the first time in six months.

The earlier Easter seemed to contribute to lower German services inflation, which fell back to 3.4 per cent, having accelerated to 3.7 per cent in March.

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Ralph Solveen, an economist at Commerzbank, predicted that German inflation would rise later this year “as companies in the service sectors in particular will pass on the massive rise in wage costs to their customers”.

Destatis said energy prices fell 1.2 per cent in April — a much smaller annual decline than the drop of 2.7 per cent recorded in March — while food prices rose 0.5 per cent after falling the previous month.

Spain’s statistics office said rising gas and food prices — after the removal of government subsidies — helped to push up its inflation rate to 3.4 per cent in April, compared with 3.3 per cent a month earlier. But core inflation, excluding energy and fresh food, slowed from 3.3 per cent to 2.9 per cent.

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