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On The Front Lines

Should Trump Be Held Liable for Actions of Jan. 6 Protesters? Case Before the Supreme Court Could Chill Lawful, Peaceful First Amendment Activity


Mckesson v. Doe

WASHINGTON, D.C. — Weighing in on a case with far-reaching implications across the political spectrum for the future of free speech and the right to protest, The Rutherford Institute is asking the Supreme Court to ensure that protest organizers who peacefully lead First Amendment protests without intending to incite any violence are not held liable for the actions of others who engage in criminal activities at the protests.

In an amicus brief filed with the U.S. Supreme Court in Mckesson v. Doe, The Rutherford Institute argues that allowing protest organizers to be held liable for the independent actions of other protestors violates First Amendment protections and could chill First Amendment activities by discouraging future protests. Moreover, Institute attorneys warn that the outcome of Mckesson v. Doe could affect any protest, such as those related to abortion, gun rights, and pandemic mandates, as well as former President Trump’s liability for the events that occurred on January 6, 2021.

“Police have mastered the art of the double standard: they don’t want to be held accountable for their own misconduct or that of their fellow officers, but they want to throw the book at anyone who peacefully engages in constitutionally protected activities if that person is nearby when a cop gets hurt on the job,” said constitutional attorney John W. Whitehead, president of The Rutherford Institute and author of Battlefield America: The War on the American People. “This could chill constitutionally-protected civil rights protests through the use of retaliatory lawsuits as yet another Machiavellian attempt by the government to prevent Americans from exercising their First Amendment right to peacefully speak truth to power.”

Mckesson v. Doe involves a personal injury lawsuit by a police officer attempting to hold a protest organizer financially liable for injuries the officer obtained while carrying out his duties in response to a demonstration, even though the organizer himself did not cause the injury. In July 2016, activists demonstrated in front of the Baton Rouge Police Department’s headquarters to protest the escalating police violence directed at black men and women nationwide and demand accountability and reforms. During the protest, DeRay Mckesson, one of the event organizers, engaged in no acts of violence and did not incite or encourage violence by others. However, while the demonstration began peacefully, enraged protesters began throwing objects at police who were massed nearby preparing to make arrests. One officer was struck and injured by a rock thrown by an unknown protester.

The injured officer brought a personal injury lawsuit against Mckesson and the “Black Lives Matter” movement, seeking more than $75,000, claiming they knew or should have known that violence would erupt during the demonstration. The lawsuit was dismissed by the trial court, which ruled that Mckesson was engaged in constitutionally protected activity and there was no allegation that he authorized or directed any violent actions. But on appeal, the Fifth Circuit held that nothing in the First Amendment prohibits such liability based on negligence, allowing the officer’s lawsuit to proceed on the claim that Mckesson should have known police would respond to the protest, leading to violence by protesters. In its amicus brief, The Rutherford Institute argues that the Fifth Circuit’s holding goes against the precedent of speech protections established by the U.S. Supreme Court.

Erin Glenn Busby, Lisa R. Eskow, and Michael F. Sturley with the University of Texas School of Law’s Supreme Court Clinic advanced the arguments in the Mckesson v. Doe amicus brief.

The Rutherford Institute, a nonprofit civil liberties organization, provides legal assistance at no charge to individuals whose constitutional rights have been threatened or violated and educates the public on a wide spectrum of issues affecting their freedoms.

Case History

April 17, 2020 • Appeals Court Chills First Amendment Activity by Allowing Cops to Retaliate Against Nonviolent Protesters


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