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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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Texas men indicted in plot to take over Haitian island and enslave women and children

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Texas men indicted in plot to take over Haitian island and enslave women and children

Satellite image of Haiti, including Gonave Island.

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Two men from North Texas have been charged over violent plans that included an armed coup on the Haitian island of Gonave, according to the Justice Department.

Gavin Weisenburg, 21 years old of Allen, and Tanner Thomas, 20 years old of Argyle, along with other co-conspirators planned to murder all men on the Haitian territory before taking over the island, and enslaving the women and children as “sex slaves,” according to an indictment filed in the U.S. District Court for the Eastern District of Texas on Thursday.

“The co-conspirators conducted research, reconnaissance, recruiting, planning, and sought training to effectuate their plan,” the indictment reads. “It was the goal of the conspiracy to take military control of the Island of Gonave by murdering all the men on the island and capturing all the women.”

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Both men are charged with conspiracy to kill or kidnap persons in a foreign country and face one count of producing child pornography. They could face life in prison if convicted on the conspiracy charge. The child pornography charge carries up to a 30-year prison sentence.

Weisenburg’s attorney, David Finn, told NPR in a statement on Sunday that he encourages everyone to “hold their horses” and his client will plead not guilty.

“While there is some limited factual basis to the Government’s Press Release, I’m reminded that something can be somewhat accurate yet wildly misleading at the same time,” Finn wrote in an email.

Thomas’ attorney John Helms said in an email to NPR late Sunday that his client will also plead not guilty and that his team will be “defending him vigorously against these charges.”

Federal prosecutors allege that Thomas enlisted in the U.S. Air Force in January 2025 to gain military training that “would be useful in carrying out their armed coup attack.”

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Weisenburg in August 2024 enrolled in the North Texas Fire Academy in Rockwall, Texas, to train for the coup, but failed out of the program nearly six months later, according to the indictment.

The men also plotted to recruit and hire homeless people from Washington, D.C., to overthrow Haiti’s government on Gonave, according to prosecutors. In March, Thomas changed his basic training assignment from Ramstein Air Base in Germany to Joint Base Andrews in Maryland to facilitate homeless recruitment in the nation’s capital. A spokesperson for the U.S. Air Force did not respond on Sunday to an NPR request for comment on Thomas’ military service.

Prosecutors say Weisenburg and Thomas began planning the attack in August 2024 and communicated about the plan on social media. Both took Haitian Creole language training and researched ammunition and weapons, including military-type rifles. The two planned to transport firearms, ammunition and explosives by sailboat, according to the indictment. Weisenburg allegedly traveled to Thailand to enroll in sailing school in preparation for the purchase of the sailboat and voyage to Haiti.

Gonave Island is located some 30 miles northwest of Port-au-Prince and prosecutors say it’s home to about 87,000 people.

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In defence of the weird and wonderful Wicked ‘womance’

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In defence of the weird and wonderful Wicked ‘womance’

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The second part of the Wizard of Oz-inspired hit musical Wicked (For Good, this time) hits big screens across the world this weekend and, if the critics are to be believed, it makes for an emotional cinema experience. “Heartbreakingly tender,” says one Deadline critic. “A legitimate tearjerker,” reckons Roger Ebert. “The young women in the row behind me . . . started sniffling and sobbing, their tears then flowing on and off through the entire final act,” per the Hollywood Reporter.

The viewers are not the only ones sniffling. The film’s two leading stars, Ariana Grande and Cynthia Erivo, have become known just as much for their overt displays of emotion and affection towards one another and frequent capitulations into tears as for their performances — they were both nominated for Oscars last time. 

Some people are highly unimpressed. “In a repeat of last year’s memorable antics that saw the inseparable pair repeatedly crying and touching each other . . . the recent press tour for the sequel has been equally ridiculous — with yet more weeping and even one bizarre breakdown over a noisy nearby helicopter,” raged the Daily Mail on Thursday. (A reference to a viral clip in which Grande shouts “Not the time, helicopter!” upwards as she strokes a weeping Erivo beside her.) “The carry-on is too much. Too much,” fumed Sky News Australia’s Rita Panahi during a regular (rather entertaining) segment called “Lefties Losing It”.

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The carry-on never seems to ebb, either. Last week, Erivo made headlines for lunging to Grande’s defence during the Singapore premiere of the film, after a fan jumped on to the red carpet. Another video that has gone viral in recent days shows Erivo pulling away Grande’s arm and then kissing it after producer Marc Platt shakes it excitedly during a panel discussion.  

But the clip that eclipses all the others, immortalised by countless memes, is one from last year’s press tour. An interviewer tells Erivo that fans have been “holding space” (?!) for one of her songs, to which the actress responds “that’s really powerful, that’s what I wanted”, looking moved (again). We then see Grande grabbing on to her co-star’s index finger to comfort her, a visual made all the more striking — some might say iconic — by the three-inch-long green nail jutting off the end of Erivo’s pointer.

Is it all a bit intense and unusual for them to be, er, carrying on like this? Yes. Are some of the parodies of them very funny and on the money? Also yes. But have I become obsessed with their weird little platonic — or at the very least semi-platonic — love affair, with the raw emotion they obviously feel in each other’s company and the absolute devotion these pint-sized vocal powerhouses hold for each other? That’s very much another yes.  

That’s right, while I understand why everyone else is so focused on the “bromance” brewing between Donald Trump and Saudi Crown Prince Mohammed bin Salman, it’s the relationship between Grande and Erivo — which I would like to call their womance — that really moves me. 

The first thing I like is their normalisation of the display of real, passionate emotion or, to put it another way, of wearing one’s heart on one’s sleeve. In our efficiency-focused, productivity-driven — dare I say male-dominated, or at least masculine-energy-dominated — society, it often feels like emotion is something we are meant to keep private, or certainly out of any professional setting. And while I am not suggesting that we start slopping our sentiments out on to the table the second they arise, I do welcome a world in which we are allowed to show that we are actually feeling things the whole time, and sometimes very deeply. 

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The second is just their celebration of the sheer unalloyed joy of close friendship. As CS Lewis writes in his tremendous 1960 book The Four Loves, it is often seen as the least important of the loves (the others he identifies are affection, as exists between parents and children, eros, and charity) but it is in fact far from that. It is precisely because it is not strictly needed that it is so important. “Friendship is unnecessary, like philosophy, like art, like the universe itself,” Lewis writes. “It has no survival value; rather it is one of those things which give value to survival.”

Maybe it is because I feel this so strongly myself that I am so taken by this unusually public friendship. “Just by being around her, I have become more of an ally to myself when I used to do a lot of self-abandoning, and I really do credit that to our friendship,” Grande said in a joint interview last year (before, of course, starting to weep).

Long live the Wicked witches and their weird and wonderful womance. 

jemima.kelly@ft.com

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Hitting the road for Thanksgiving? Here’s the best time to go

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Hitting the road for Thanksgiving? Here’s the best time to go

Cars congest Fort Lauderdale Hollywood International Airport the day before Thanksgiving Day in 2024, in Fort Lauderdale, Fla.

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A record number of people are expected to travel within the U.S. for Thanksgiving, be it plane, train or automobile.

Nearly 82 million are projected to travel at least 50 miles from Nov. 25 to Dec. 1, an increase of 1.6 million people compared to last year’s holiday, according to an AAA report released on Monday.

Most of them will be hitting the road in a car, with about 73.2 million people expected to drive, AAA said. That’s 1.8% more car travelers compared to the 2024 holiday period.

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AAA projected 6 million people to travel by plane within the country for the holiday, a 2% increase from last year. Due to concerns over recent flight delays and cancellations, however, AAA also said that number could end up dropping slightly if travelers make last-minute arrangements to use other forms of transportation. Staffing shortages during the prolonged government shutdown earlier this month resulted in mass flight disruptions.

The FAA lifted its directive that called for an emergency reduction in flights, allowing airlines to return to operating normally. Aviation experts warned it could take some time before flights return to normal, but industry leaders appeared confident that airline operations would return to normal pre-shutdown levels in time for the Thanksgiving travel frenzy. Weather forecast to bookend the holiday in some parts of the country could cause flight disruptions and delays.

The Federal Aviation Administration (FAA) said Friday it expected the upcoming holiday rush to be the busiest Thanksgiving travel time for air travel in 15 years, with Tuesday being the busiest flying day.

Travel across other transport modes — bus, train and cruise — was forecast to increase 8.5% this year, with a likely uptick in last-minute bus and train bookings

“People are willing to brave the crowds and make last-minute adjustments to their plans to make lifelong memories, whether it’s visiting extended family or meeting up with friends,” Stacey Barber, vice president of AAA Travel said in a statement on Monday.

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Here is what else to know:

Driving in the afternoon? Think again

Tuesday and Wednesday afternoon are expected to be the most congested times for drivers in major metro areas, according to INRIX, a transportation analytics firm.

If driving, the best times to hit the road for the holiday will be before noon on Tuesday and 11 a.m. on Wednesday to avoid backups, according to the firm. Thanksgiving Day will have minimal road traffic impacts.

When returning home after the holiday, travelers are advised to start driving before noon on any day except Monday. The Sunday after Thanksgiving will likely have heavy traffic most of the day and the best time to travel Monday will be after 8:00 p.m., INRIX said.

Weather could be messy, but should clear up for your trip back

During peak travel times, from Monday through Wednesday, rain extending from Southern Texas up to Minnesota will move across the country to the east, according to the National Weather Service (NWS).

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“Monday into Tuesday will probably be a little problematic anywhere from Texas, eastern Oklahoma, into Arkansas and northwestern Louisiana,” Bob Oravec, lead forecaster for the NWS, told NPR.

By Thanksgiving Day, things will be a little drier across the U.S. Temperatures will be colder than average for a majority of the country on Thanksgiving morning, with central parts of the U.S. seeing temperatures in the teens. On Black Friday, there will be warmer than average temperatures from the Great Plains to the West Coast, with places like Denver, Colo., seeing temperatures in the mid-50s, Oravec said.

Some of the worst weather will be across much of the central and eastern U.S. where there will be lake-effect snow showers coming off the Great Lakes, Oravec said.

For holiday travelers returning home on Friday and Saturday, the weather should be decent for a large portion of the country, he said. But a storm system is expected to develop over the weekend.

On Saturday and Sunday, the system could bring heavy snow across western Nebraska, South Dakota and North Dakota as well as parts of Minnesota into Wisconsin, according to Oravec. On Sunday, from Texas up into Missouri and Illinois, chances of rain are forecast to increase.

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