Black Lives Matter Lawsuit is a Reminder of the Importance of Structure

New Orleans   Last year at a meeting organized for nonprofits by Tulane University, there was furious head scratching when everyone was asked what workshop they would volunteer to lead, and I had written down my willingness to do one on the importance of structure. Asked why, I argued that too many organizations without thinking or with the advice of lawyers and funders, not organizers, in a knee jerk fashion decided to incorporate and file for a tax exemption without reckoning with the critical weight of the decision. In matters of structure, I have always argued, the “beginnings predict and prejudice the ends.” In other words, form can determine function. Not surprisingly, I’m still waiting for the call for that workshop!

But, Judge Brian A. Jackson, a federal judge sitting in Baton Rouge, Louisiana in a lawsuit stemming from the police-inspired mayhem involving the protests around the killing of Alton Sterling, an African-American, by a white Baton Rouge policeman, has issued a decision which should serve as a reminder of why choices about structure are vital for those involved in organizing social change. An unnamed “John Doe” policeman filed suit against Black Lives Matter and activist/organizer DeRay Mckesson claiming he was hurt in the melee when hit by an object. The headlines in the news whether the Times or the Post or NPR or whatever are stupid. Some say the judge ruled that you can’t sue “a hashtag.” Others said the judge ruled you can’t sue a “movement.” Neither are true, but both are structurally important.

The suit named Black Lives Matter as “an unincorporated association” which is a perfectly appropriate organizational formation, whether movement or not. Such a designation is how all labor unions are organized for example. The judge had no beef with BLM as a defendant. Organizations form corporations in order to shield and protect the actions of individuals by creating an entity that will take responsibility for all actions “as an individual.” In some ways operating a structure as an unincorporated association protects the organization first, rather than any individuals. Not creating a corporate entity means that an unincorporated association forces a plaintiff, whether an individual like this policeman or an arm of the government, to prove the actions of specific individuals in order to assess any liability or stop any activity. The judge ruled that Joe Doe failed to prove that DeRay Mckesson, as an individual, caused the harm, therefore the suit failed.

In organizing with welfare rights in the late 1960s where arrests for civil disobedience were common, we would never incorporate because, like unions, we wanted to be able to resist broad injunctions being filed to stop our actions and activity, forcing the state to have to enjoin individual leaders or organizers. This allowed members to continue to act on the standard organizing principle that if one falls, another steps into place. Had we been a corporation, we would have been stopped in our tracks. ACORN from 1970 to almost 1978 was an unincorporated association of groups for the same reason, until our national expansion forced us to incorporate as simply a nonprofit. We never filed for tax exemption, because we never wanted our activities to be curtailed.

Structure is so critical that I’ve included an entire chapter on these questions in my forthcoming book, Nuts and Bolts: The ACORN Fundamentals of Organizing. So, sure you can sue a movement and an association, but the movement and association can’t be stopped if it is an unincorporated association, only individuals, and individuals matter less in movements – and most organizations for change – than the ability of the members and masses to act. Judge Jackson and Black Lives Matter are teaching a fundamental organizing lesson here, so brothers and sisters, pay attention in this class.

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