The country and the world face a public health emergency in the new coronavirus causing COVID-19. The media is filled with concerns about how we will respond. Will we close schools? Cancel sporting events and other large gatherings? Work from home? Avoid public transportation?

But little has been said about one of the most vulnerable sectors of our population: the people in our prisons and jails. Although people often think of prisons and jails as closed environments, they are not. Medical staff, correctional staff, and visitors come from the community into the facilities every day and then return home. People are admitted to and released from prisons and jails, and they go back and forth to court and to medical appointments. There is ample opportunity for a virus to enter a prison or jail, and for it to go back out into the community.  

Once a contagious illness enters, conditions in correctional facilities are highly conducive to it spreading. People in prisons and jails live in close proximity to each other. Many are housed in large dormitories, sharing the same space. Even where people are housed in cells, the ventilation is often inadequate. People in prisons and jails are often denied adequate soap and cleaning supplies, making infection control nearly impossible.

Many people in prisons and jails are in relatively poor health and suffer from serious chronic conditions due to lack of access to healthcare in the community, or abysmal healthcare in the correctional system. While people sent to prisons and jails tend to be young, the harsh sentencing policies of recent decades mean that the prison population is aging. Medical staff are generally stretched thin even in the best of times. Though incarcerated people have a constitutional right to adequate medical and mental health care, the reality is they too often do not have access to it.

All this means that prison and jail populations are extremely vulnerable to a contagious illness like COVID-19. Moreover, prisoners have fewer options for protecting themselves and others. They don’t have the option to stay away from other people when they are sick. They can ask for medical attention, but prisons and jails have few infirmary beds and fewer rooms for medical isolation.

If medical staff become ill or have to be quarantined, there will be even fewer people available to provide care. If correctional staff become ill or need to be quarantined, there will be fewer officers available to bring sick people to hospitals, to the infirmary, and even just to keep an eye on who in the facility is showing signs of illness.

To limit outbreaks of COVID-19 in jails and prisons, officials must act, and they must act quickly. They should coordinate with local public health officials to determine the most appropriate measures to take, given the local conditions and the peculiarities of the correctional environment. While the plans will differ from facility to facility, there are points that should be addressed in any plan:

• How will all people in the facility — incarcerated people, staff, and visitors — be educated so they can understand the risks, protect themselves, and protect others? This will ideally be operationalized and conducted at scale.
• Under what circumstances will staff and people incarcerated in the facilities be tested for the virus? How many tests are needed?
• If people who are incarcerated require quarantine and/or treatment, how will that be accomplished? 
• If medical staff must be quarantined or become ill, how will the facility monitor, quarantine and treat the prison or jail population?
• If correctional staff must be quarantined or become ill, how will the facility operate, both in terms of addressing the virus and in terms of simply maintaining necessary services, safety, and security?
• If incarcerated people must be quarantined or become ill, how will the facility continue necessary operations that are reliant on the prison or jail population, such as food preparation?
• Are there particularly vulnerable populations, such as the elderly, or immunocompromised, and how can they be protected?
• How will the facility meet the challenges of COVID-19 without violating the rights of the people in its custody?

People in government custody, including in prisons, jails, and civil detention, are often forgotten in emergencies. This creates unnecessary suffering and loss of life. We have the opportunity to take steps now to limit the spread of the virus in prisons, jails, and detention centers. But the time to act for the health of those incarcerated, and for the broader community, is now.

Maria Morris, Senior Staff Attorney, National Prison Project, ACLU

Since this country’s founding, when we’ve had something to say, we have taken to the streets. We’ve come together to celebrate our identities, to protect our land and our communities — and to push for change following injustice and tragedy. But if a recent decision from the Fifth Circuit Court of Appeals involving a Black Lives Matter protest is left standing, the right to protest will be in serious jeopardy.

That is why, today, we’re asking the Supreme Court to take the case.

The Fifth Circuit decision stems from protests that erupted in Baton Rouge, Louisiana after two white police officers shot and killed Alton Sterling, a Black man, on July 5, 2016. In the days that followed, people took to the streets to make clear that Black lives matter. They came together to express outrage, to call for accountability and justice, and to demand change.  

Police responded not by engaging with the substance of protestors’ calls, but with riot gear, excessive force, and illegitimate arrests. And one police officer brought a civil suit for monetary damages based on allegations that, in the midst of the protest, someone (we don’t know who) threw something (we don’t know what) and hit the officer (we don’t even know his name). The one thing we know with certainty — and based on the officer’s own allegations — is that the individual the officer sued is not the person who threw the object, but our client, DeRay Mckesson — an activist who was there to add his voice and to amplify others.

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The district court that first reviewed the case correctly dismissed it as violating a core tenet of the First Amendment: that, in the context of a protest, individuals cannot be held liable for the unlawful, unintended acts of others. But, after the officer appealed, the Fifth Circuit issued a baffling and deeply concerning order that ignores that principle and, in doing so, puts all of our free speech rights at risk. The court concluded that a protester could be held liable for the foreseeable, but unintended, unlawful actions of a fellow protester. If allowed to stand, the precedent could signal the end of protest.

The Fifth Circuit panel first concluded that Mckesson had no control over the individual who threw the object, and had not intended for the object to be thrown. Yet the judges concluded that Mckesson could be liable for the officer’s injuries.

Why? Because, during the protest, Mckesson (according to the judges’ reading of the officer’s allegations) directed others onto the street in front of police headquarters, purportedly in violation of a Louisiana law. Because that act was allegedly not protected by the First Amendment, the panel reasoned that Mckesson could be liable for any harm that followed — including another person throwing an object at an officer — as long as it was foreseeable. And, the panel concluded, it was foreseeable: As soon as people stepped out onto the street, police officers would inevitably come to enforce Louisiana’s laws, and that was enough to expect that violence could occur.

This logic is not only flawed, but also reveals a dismal view of police-citizen interaction. Even if law enforcement does often respond to protests with excessive force, that is not something courts should accept — or protesters or police should expect — as a given.

And the court’s flawed reasoning is also dangerous for another reason. It means that, in the Fifth Circuit at least, protest leaders can find themselves on the hook for an unlawful act they did not intend, committed by an unidentified person they neither knew nor controlled.

To be clear, the First Amendment typically does not protect someone from liability for breaking the law, even if they did so for political reasons. That means that, had someone sued Mckesson for delaying traffic, he may have been liable. Equally, had the officer sued the individual who threw the object, the officer’s case would have been able to proceed without threatening speech rights. But, in the context of a protest, the allegation that Mckesson unlawfully impeded traffic cannot suffice to make him liable for the independent, unintended act of the object-thrower.

The Supreme Court made this clear in 1982. While the Constitution does not protect violence, the Court held, it does limit the government’s ability to place responsibility for that violence onto peaceful protesters. That seminal civil rights case, NAACP v. Claiborne Hardware Co., has been cited repeatedly to ensure robust speech protections, including to dismiss a lawsuit against then-candidate Donald Trump for violent acts committed at a campaign rally and to challenge efforts to stifle Keystone XL pipeline protests.

The Fifth Circuit’s opinion risks undoing all of that. Under the Fifth Circuit’s theory, a police officer — or, equally, a counter-protester — need only allege that a protest organizer directed or enabled other protesters to do any illegal thing, from overstaying a permit in order to pack up, to pumping the volume up a little too loud, to conducting a sit-in that obstructs access on a sidewalk or constitutes a trespass. Countless potential plaintiffs could argue that their injuries — sprained ankles, broken windows, extreme stress — probably would not have occurred had the protest not been at that place at that time, or had police or counter-protesters not responded as they did.

With these costly risks, who would be willing to lead a protest? And, if, in a court’s view, the likelihood of police presence is enough to make protesters liable for violence, nearly any protest could lead to incalculable damages for organizers. Police presence is expected at the vast majority of protests, especially those that draw large crowds or focus on issues of public controversy.

Had this been the rule throughout our history, those leading this country’s seminal protests — from the celebrated civil rights protests of the 1960s to the anti-war protests of the 1970s — could have faced ruinous lawsuits. And, under the Fifth Circuit’s logic, advocates who were prosecuted for violating laws that, once they reached the Supreme Court, were deemed unconstitutional could equally have been burdened. In other words, the same individuals who established core First Amendment precedent — and who the Supreme Court held could not be criminally prosecuted — could have found themselves facing huge civil judgments for their advocacy, including at segregated lunch counters and libraries.

Thankfully, this isn’t how the Supreme Court has ever looked at rules of liability in the context of protected expression. And the Supreme Court should take this opportunity to make clear that it’s not how it looks at those rules now. Otherwise, we may find our streets much emptier.

Vera Eidelman, Staff Attorney, ACLU Speech, Privacy, and Technology Project