- A police officer was severely injured when a protester threw a projectile during a 2016 Black Lives Matter protest in Baton Rouge. The officer sued the protest's organizer, DeRay McKesson, for damages.
- Mckesson argued that the officer's lawsuit violated his First Amendment rights, since he didn't explicitly encourage violence. However, the 5th U.S. Circuit Court of Appeals, with jurisdiction over Texas, Louisiana and Mississippi, let the lawsuit proceed.
- Mckesson appealed to the U.S. Supreme Court, which declined to accept the case because its own ruling in 2023 already reaffirmed that under the First Amendment, a lawsuit must show active intent, not just negligent behavior. In refusing to hear the case, the Supreme Court also allowed the lawsuit to proceed.
- Headlines and online chatter about the Supreme Court's decision claimed the idea that organizers in Texas, Louisiana and Mississippi can be sued for the actions of protesters "effectively abolishes" protests in those states. This is misleading.
- The First Amendment still protects the right to assembly, and any lawsuit brought against a protest organizer would have to clear the hurdle of decisively proving direct intent to cause harm.
On April 15, 2024, the U.S. Supreme Court announced it would not hear the case Mckesson v. Doe, which centered around First Amendment protections for political-protest organizers. The left-leaning media outlet Vox quickly published a story with the headline, "The Supreme Court effectively abolishes the right to mass protest in three US states." By the end of the day, posts spread across social media echoing the claim that residents of Texas, Louisiana and Mississippi could no longer engage in mass protest due to the court's decision.
(@themeteor / X)
But this is incredibly misleading. By Snopes' reading of the legal documents involved in the case, supported by a news release from the American Civil Liberties Union (ACLU), the Supreme Court decided not to hear the case because there is already substantial precedent upholding the First Amendment rights of protesters, and it would be unnecessary to reiterate them.
What Is Mckesson v. Doe?
The case in question started in 2016 after two police officers in Baton Rouge, Louisiana, shot and killed a Black man, Alton Sterling. Protests soon followed. Civil rights activist DeRay Mckesson organized one of those. At that protest, someone threw a rock or a piece of concrete at a police officer and seriously injured him. Everyone involved in the case agreed that Mckesson did not throw the rock, but nobody could identify who did.
So the police officer, under the pseudonym "John Doe," sued Mckesson and the Black Lives Matter movement for damages, claiming that Mckesson had "negligently staged the protest in a manner that caused the assault."
A federal district court judge dismissed the suit based on the First Amendment, which protects the right to peaceful protest and assembly. But the plaintiff appealed. Eventually, the case arrived at the 5th U.S. Circuit Court of Appeals, which has jurisdiction over the law in Texas, Louisiana and Mississippi. That court is widely considered to be one of the most conservative in the nation.
That court decided that Mckesson was not protected by the First Amendment and the lawsuit against him could continue. Mckesson, backed by the ACLU, appealed the case to the U.S. Supreme Court on First Amendment grounds. Much of his argument was based on a 1980s Supreme Court decision, NAACP v. Claiborne.
What Is NAACP v. Claiborne?
In that case, members of NAACP in Claiborne County, Mississippi, decided at a 1966 meeting to begin a boycott of white-owned businesses. While the extended protest proved mostly peaceful, occasional threats and acts of violence occurred. So, in 1969, business owners sued the NAACP for damages caused during the boycott, including the loss of business. The case proceeded up to the Supreme Court. Here's the key question the Court had to answer, as summarized by Oyez, the most comprehensive resource for Supreme Court cases online:
Are the nonviolent elements of the petitioners' activities entitled to the protection of the First Amendment?
(1) If so, is a protest liable in damages caused by the nonviolent, protected activity?
The Supreme Court decided unanimously that yes, the nonviolent elements were protected by the First Amendment, and that no, the protest was not liable in damages caused by the nonviolent, protected activity.
Essentially, what this decision said is that organizers of protests cannot reasonably control every individual action taken over the course of protests. As such, unless there is specific proof that the organizers of the protest directly advocated for violent activity (the exact wording used was "authorized, directed, or ratified" the activity), the suit has no legal merit.
Mckesson claimed that under the precedent set by NAACP v. Claiborne, the suit against him was also invalid, because he did not authorize or direct the unidentified protester who threw the rock at John Doe to do so. What was the 5th Circuit Court's reason for deciding otherwise?
The 5th Circuit Court of Appeals
First, it is important to note that this was a split decision. Only two of the three judges who heard the case sided with Doe. Those two judges held that Doe could sue Mckesson for damages because it was, in fact, reasonable to assume that the protest would turn violent. Why? According to the decision itself:
We held that Doe had plausibly alleged that Mckesson organized and led the protest in an unreasonably dangerous manner, in breach of his duty to avoid creating circumstances in which it is foreseeable that another will be injured. In other words, arranging the protest as he did, it is plausible that Mckesson knew or should have known that the police would be forced to respond to the demonstration, that the protest would turn violent, and that someone might be injured as a result.
Okay, but what specifically did Mckesson do in leading the protest that created the dangerous situation?
Mckesson directed the protest at all times, and when demonstrators looted a grocery store for water bottles to throw at the assembled police officers, he did nothing to try to discourage this, even though he remained in charge. After that, Mckesson personally attempted to lead protesters onto a local interstate to obstruct traffic, a crime under Louisiana law.
The dissenting judge, Don J. Willett, disagreed that McKesson could be held liable:
Under Claiborne, Mckesson cannot be liable for violence unless he encouraged violence. It is not enough that he encouraged or committed unlawful-but-nonviolent actions that preceded violence.
Willett also noted that he had further concerns about how loosely his fellow circuit court judges were playing with First Amendment rights:
To spell it out, I am concerned that those who oppose a social or political movement might view instigating violence (or feigning injury) during that movement's protests as a path toward suppressing the protest leader's speech—and thus the movement itself. And even putting that risk aside, large protests—just like large concerts and large sporting events—tend to attract people looking for trouble. You might even say that violence is nearly always foreseeable when an organizer takes specific action by putting together a large-enough event. But if you do, it is hard to accept the majority's theory.
This is likely where the original framing of Vox's article came from: the idea that under the court's decision, it would become legally dangerous for a person or group in Texas, Louisiana and Mississippi to organize a protest, since a person injured at a protest had now been given a green light to sue a protest organizer for damages. Following that logic, the Supreme Court's decision to not consider this case, which could have set a precedent nationwide had the court decided to hear it, effectively "banned" organizing mass protests in the three states covered by the decision.
But even the judges on the 5th Circuit Court who allowed the suit to happen added a major caveat: The decision allowed John Doe to go ahead with suing Mckesson, but it did not predetermine that John Doe would be successful in suing Mckesson. That process would occur back down in a lower court. And in the lower court, the Supreme Court's statement on why it declined to hear the case, written by Justice Sonia Sotomayor, should come into play.
Sotomayor's Statement
First, Sotomayor's statement does not say one way or another whether the court agrees with the findings of the 5th Circuit, nor about Mckesson's First Amendment argument:
Because this Court may deny certiorari for many reasons, including that the law is not in need of further clarification, its denial today expresses no view about the merits of Mckesson's claim.
Or, in plain English, "the law here is so clear that we do not need to consider it, and our time is better spent elsewhere."
Sotomayor cites Counterman v. Colorado, decided in 2023, as sufficient precedent for explaining why. Although the exact details of that First Amendment case are interesting, for the sake of brevity, we can simply review Sotomayor's concise description of its finding:
In Counterman, the Court made clear that the First Amendment bars the use of "an objective standard" like negligence for punishing speech, and it read Claiborne and other incitement cases as "demand[ing] a showing of intent."
Based on Sotomayor's wording, Doe's lawsuit must successfully prove more than just passive negligence on behalf of Mckesson — Doe will have to prove that Mckesson had a direct intent. And the pure facts of the events in Baton Rouge do nothing to help Doe's case.
Although they were disappointed by the high court's decision to not review the case, the ACLU and DeRay Mckesson agreed that the Supreme Court had not thereby effectively banned the right to assembly. A quote from the ACLU's news release neatly sums the situation up.
"After today's news, people should not be afraid that they'll face a ruinous lawsuit if they exercise their rights to protest. The Court just last year affirmed that negligence can never be the governing standard when it comes to speech, and Justice Sotomayor suggests it simply didn't need to say so again here," said Vera Eidelman, staff attorney with the ACLU Speech, Privacy and Technology Project.