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When Will Civil Rights Lawsuits No Longer Be Necessary?

Dec. 29, 2021, 9:00 AM

When anyone’s civil rights are violated, everyone’s civil rights are in jeopardy.

Like a warm quilt, our constitutional rights protect us against government actions that directly or indirectly chill our exercise of free speech, peaceable assembly, and other basic liberties. Extending the analogy, whenever the fabric is torn there is a risk of the tear widening, threatening the integrity of the whole, unless it is promptly mended—the proverbial “stitch in time.”

We have recently seen how damage to civil rights can affect communities far from the source. On Nov. 19, a riot broke out in Portland, Ore., protesting Kyle Rittenhouse’s acquittal on charges based on his shooting of three men in Kenosha, Wis., 2,100 miles away. The physical damage was small, mostly broken windows.

Most protests are peaceable. The Washington Post reported on Oct. 16, 2020, that its four-year study of 7,305 political crowd events found fewer than four percent of them resulted in property damage or vandalism. Injuries to people, including protestors and peace officers, occurred in fewer than three percent of the events.

That’s not always the case. In the aftermath of George Floyd’s cruel, senseless murder on May 25, 2020, in Minneapolis, protest demonstrations were held in over 140 U.S. cities by June 13, 2020, according to the New York Times.

Most were nonviolent, though small, violent factions caused massive insured property damages, estimated by the World Economic Forum to have exceeded $2 billion by February 2021.

Abridgments of civil liberties can lead to violence, often on the side obstructing those liberties, and opportunists on the other side who exploit peaceful, fervent demonstrations to wreak mayhem. The losses in such instances are, in this writer’s view, more devastating that the monetary losses. Though such people do not speak for the vast majority of peaceful demonstrators or peace officers, they speak the loudest, fueling the prejudices that gave rise to, and still motivate, the opposing side’s worst natures.

Imagine the emotional costs that fear, anger, and distrust impose on a person, or a society, especially amid a global pandemic. Many readers will not have to imagine.

On the macro scale, and over decades, movements to defend precious liberties push society forward, in fits and starts. Think of the 19th Amendment, enfranchising 50% of the population; the Civil Rights movement of the 1950s and continuing to today, which goaded Congress to enact the Civil Rights and Voting Rights Acts. The MeToo movement doesn’t change the law, but empowers victims of abuse to stand up to and expose their abusers.

On the micro scale, we have another remedy: lawsuits that challenge and chip away at governmental encroachments on civil rights. These cases can achieve economic justice, a.k.a. damage awards. Without getting too deeply into lawspeak, the Civil Rights Act encourages such lawsuits by allowing federal trial courts to award to prevailing plaintiffs their attorneys’ fees and costs.

More rarely, civil rights cases can confirm the rights of others, as well as the plaintiffs’. Some such cases have moved from the law books to our vocabulary. Such cases define the proper role of government with respect to individual and associational rights of privacy, advocacy, assembly, and equal protection of the law.

A Victory at the Supreme Court

On July 1, the U.S. Supreme Court decided a civil rights case I had tried, won, and lost on appeal. The high court issued 64 decisions in its 2020-2021 term. Mine was the 64th to be decided. We filed it to defend one nonprofit organization’s right to keep its donors confidential from a state regulator—anonymous advocacy being at the heart of the Founders’ case against King George III—though we also sought to hold the regulation unconstitutional on its face, and thus applicable generally to nonprofits.

As the case wended its way to the Supreme Court it became clear the “facial challenge” was the right one to pursue. With the leadership of experienced Supreme Court advocates as co-counsel, we presented the case and, on July 1, won it as a facial challenge.

The case spanned six years from filing to decision. It was certainly worth the effort for the client and similarly situated 501(c)(3) nonprofits, and will be the highlight of my career.

As a lawyer of 41 years’ tenure and an adjunct professor of law, you’d think I would be all for civil rights lawsuits. I am, but wish they weren’t necessary, just as I wish that protest marches weren’t needed to advance societal decency, one notch at a time. An ounce of prevention—recognizing and respecting established civil rights—is worth $2 billion of cure, or six years in the courtroom.

Civil unrest is not a natural disaster. We make it. We could end it, though it would take a long time. After all, it took nearly four centuries to get us where we are.

This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.

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Louie Castoria is a partner in Kaufman Dolowich & Voluck LLP and teaches litigation classes at Golden Gate University’s School of Law in San Francisco. He urges measures to strengthen the security of our most cherished freedoms—still very much works in progress.

The opinions expressed are the author’s, and not necessarily those of his law school, law firm, or its clients.

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