KRISTEN TAYLOR—On Thursday, September 28, 2017, a federal judge in the Middle District of Louisiana ruled that neither Black Lives Matter nor its hashtag could be sued. The decision came after an officer with the Baton Rouge Police Department, who was injured during a Black Lives Matter demonstration on July 9, 2016, filed suit against named defendants DeRay Mckesson and Black Lives Matter. In his Complaint, the officer alleged that during the demonstration, an unidentified protester threw a rock-like object at him, causing serious injuries. According to the officer, the demonstrator was a member of Black Lives Matter and was under the control and custody of Mckesson and Black Lives Matter. As such, the officer brought claims in negligence and respondeat superior asserting that both Mckesson and Black Lives Matter should have been held liable in solido for his injuries.
How it All Started
After the brutal murders of Alton Sterling and Philando Castile, which took place on July 5, 2016 and July 6, 2016 respectively, activists across the nation took to the streets to protest police brutality and racial injustice, and to remind America that black lives matter, too. Baton Rouge, where Sterling was fatally shot by officers, was targeted as one of the centers of the national protests. Although the protests were initially peaceful, the streets quickly became filled with what would later be described as civil “unrest.”
In the Complaint, the Baton Rouge officer alleged that amidst the July 9th protests, Mckesson incited a riot and encouraged violence on behalf of Black Lives Matter. The officer also claimed that Mckesson was in charge of the protests and gave orders throughout the demonstration; however, the officer could only reference one public statement in which Mckesson stated, “[t]he police want protestors to be too afraid to protest.” The Complaint further alleged that Mckesson did not do anything to calm the crowd once riots ensued, and as such should be held responsible for the actions of the protestors. Lastly, the officer asserted that Black Lives Matter could be classified as a “chapter-based, unincorporated association” that is “organized under the laws of California” and is “amenable to service of process through a managing member.” In response, Mckesson filed a Rule 12 Motion to Dismiss stating that the officer “failed to state a plausible claim for relief” as well as a Rule 9 Motion “asserting that ‘Black Lives Matter’ is not an entity that has the capacity to be sued.”
Thereafter, the officer filed a Motion to Amend seeking to add “#BlackLivesMatter” and the Black Lives Matter Network, Inc. as defendants and to provide additional factual complaints. According to Merriam Webster, a hashtag is “a word or phrase preceded by the symbol # that classifies or categorizes the accompanying text (such as a tweet).” “#BlackLivesMatter” is the hashtag which normally accompanies tweets and other social media posts referencing the Black Lives Matter movement. The Black Lives Matter Network, Inc. seems to have been connected with a website associated with the Black Lives Matter movement. The website informs visitors about the movement and gives them the opportunity to purchase merchandise, sign up for alerts, and make donations. In the Complaint, the officer alleged that upon making a donation to the website, his receipt indicated that the donation would go towards the Black Lives Matter Network, Inc.
What the Court Had to Say
As most legal scholars learned in their 1L Civil Procedure course, a plaintiff cannot merely plead conclusory allegations in a complaint; the standard is plausibility. If a plaintiff chooses to plead conclusory allegations he will likely be met with a Rule 12(b)(6) Motion to Dismiss for failure to state a claim upon which relief can be granted. Furthermore, under Louisiana law, as allowed by Federal Rule of Procedure 17(b)(3), in order to be sued, an unincorporated entity must qualify as a juridical person independent of its members. This means that people coming together for a common cause or interest does not alone create a capacity to be sued. There must be some agreement between two or more parties to “combine certain attributes to create a separate entity for a legitimate purpose.”
Backed with this procedural knowledge, the court held that the officer’s complaint suffered “numerous deficiencies; namely, the Complaint fail[ed] to state a plausible claim for relief against Mckesson and it name[d] as Defendant a social movement that lacks the capacity to be sued.” The court went on to say that the Motion to Amend was ineffective in that it failed to resolve the flaws of the Complaint. Because “#BlackLivesMatter” is a hashtag and lacks the capacity to be sued, and the officer did not state a plausible claim for relief against the Black Lives Matter Network, Inc., the court dismissed the action with prejudice.
What Happens Now?
Over the past decade, we have seen the age of social media grow and become the basis of new legal standards, and although we cannot exactly determine what will become of this holding, it seems as though the court has set a very clear standard: you cannot sue a hashtag. Moving forward, it will be interesting to see if and how this decision holds. For now, it’s probably safe to say that no one else will try to sue another hashtag—at least for a while.
