Courts

Federalist Society Mastermind Has A Real Problem With The First Amendment When It's Speech He Doesn't Like

A new lawsuit alleges Leonard Leo directed police to arrest man who called him a ‘fucking fascist.’

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FedSocThe individual who has had the largest impact on the federal judiciary is probably Leonard Leo, the man behind the Federalist Society. FedSoc has a goddamned chokehold on conservative judicial candidates. All of the GOP-nominated Supreme Court justices are current or former members of the organization, and the organization has been actively curating lists of judicial nominees that specifically align with a host of right-wing political goals.

Leo’s been busy cultivating dark money for some time now, and most recently was revealed to control over $1.6 billion designed to (continue) his redesign of American politics in the furthest right-wing image. Oh, and he’s made himself a buttload of money in the process.

Leo primarily operated behind the scenes for years as he pulled the strings that created our current judiciary. But as the Supreme Court has been busy changing our legal landscape in a way most Americans disagree with, how we’ve gotten here has become a focus. That means regular non-lawyers are finally noticing Leo. And he’s not a fan of the increased attention.

In the New Yorker, Jane Mayer details a new lawsuit that alleges Leo directed the police in Mount Desert Island, Maine, to arrest a man that called Leo a “fucking fascist.”

According to reports, since the overturning of Roe v. Wade, fundamentally masterminded by Leo, there have been protests at Leo’s estate in Northeast Harbor, Maine. On the way to a protest, Anna Durand and her son, Eli Durand-McDonnell, ran across Leo, and they couldn’t help but make their feelings known.

On July 31st, Anna Durand, a local inn owner, was on her way to one such protest with her son Eli Durand-McDonnell, a twenty-three-year-old landscaper. Durand is a longtime progressive activist in the community, and she conceded that “there are plenty of people who’ve made objectionable fortunes here” whom she deplores but ignores. But she believes Leo is uniquely deserving of condemnation because, in her view, he has “specifically made it his life’s work to take people’s rights away.” As she and her son drove down the town’s main street, she spotted Leo, who was walking with his family: “I was, like, ‘OMG—there he is!’ ” From her car, she yelled, “Leonard Leo!” He said, “Yes?” She later recalled, “I always wanted to say such a profound statement if I saw him.” But, in the moment, she said, “I just yelled, ‘You’re a fucking asshole. You’re going to Hell. Your whole family is going to Hell.’ It was so satisfying. I drove away happy.”

Before she drove off, however, Durand-McDonnell, who was in the passenger seat, chimed in. “You’re a fucking fascist,” he recalled shouting at Leo.

Later at the protest, much to his surprise, Durand-McDonnell was arrested for disorderly conduct. And he wasn’t the only one surprised.

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At the Hancock County jail, according to Durand-McDonnell, the booking officer, after hearing the details of the disorderly-conduct charge, said, “That’s all you’re in for? Whatever happened to ‘sticks and stones’?”

The lawsuit alleges Leo directed local police to violate Durand-McDonnell’s First Amendment rights with a retaliatory arrest.

But it accuses two officers of the Bar Harbor and Mount Desert Police Departments of perpetrating a “retaliatory arrest to silence Durand-McDonnell’s free speech” while acting “at the direct behest of Leo,” whom the suit describes as “a powerful and wealthy conservative political activist who has used millions of dollars as political speech to influence American politics and courts.” As evidence, the suit draws on a recording taken from the arresting officer’s police camera, documenting that Leo called the police on July 31st. Soon after, the audio reveals that, in a private consultation in his study, the Federalist Society co-chairman told the officers that Durand-McDonnell had been harassing him and his family, and that “I really feel like this is a guy who’s gonna be in jail someday, and sooner rather than later.” Leo gave the police an account that differed in several respects from Durand-McDonnell’s. He said that, earlier that day, as he was walking with his wife and eleven-year-old daughter toward the center of town, Durand-McDonnell had shouted at him while driving past him in a car, calling him a “fucking asshole.” Leo said that he recognized Durand-McDonnell, who, he claimed, had been “harassing” him and his family “for weeks.” He told the officers, “I think it’s time for us to press some charges.” He continued, “I have to be honest with you . . . the man looks unstable. He looks hateful. He looks really angry, and he’s really starting to concern me.” (Durand-McDonnell acknowledges that he had blown kisses at Leo’s security guards, but denies harassing anyone.) Leo went on, “If he wants to put a bullet between my two eyes, fine, let him do it, O.K.? But I can’t have him dealing with my family that way. My wife was distraught.” He acknowledged that the issue of protected speech was difficult, and he could see it both ways. But he argued that the behavior of the protesters had gone beyond politics, to personal harassment. “This is no longer a political protest,” he asserted, “when they have ‘Fuck Leo’ signs . . . and their Twitter and Facebook posts talk about ‘Get out,’ and ‘You don’t belong here.’ ”

Ultimately, the charges against Durand-McDonell were dropped.

But Leo is standing behind his actions saying he “relied on the police to figure out how best to resolve this.” He continued, “Mr. Durand went out of his way to harass my wife and young daughter as we were walking along the street, accosting them directly after addressing me and then standing outside our house to be there when we returned. I informed the police because his repeated incidents of erratic and aggressive demeanor had escalated into targeting my family.” And, he added his spin that there was no First Amendment violation, “I hope Mr. Durand gets the help he needs to properly distinguish between First Amendment speech and menacing attacks on innocent bystanders.”

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Durand-McDonell insists what Leo did was problematic, “The rules don’t apply to Leonard Leo. He can use this insane amount of money and influence and be a big shot, and throw his weight around. And, if he doesn’t agree with what someone else says, it’s no longer free speech.”

Kathryn Rubino is a Senior Editor at Above the Law, host of The Jabot podcast, and co-host of Thinking Like A Lawyer. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter @Kathryn1 or Mastodon @[email protected].

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