On The Front Lines
U.S. Supreme Court Allows Case to Move Forward That Could Dissuade and Chill the Right to Organize Peaceful Political Mass Protests
WASHINGTON, D.C. — In a case with far-reaching implications across the political spectrum for free speech and the right to protest, the U.S. Supreme Court is allowing a case to move forward that could hold a protest organizer liable for the independent actions of another protester, ultimately undermining the right to organize non-violent protests.
Warning that the outcome of the case could affect a wide range of protests 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, The Rutherford Institute had filed an amicus brief in Mckesson v. Doe calling on the Supreme Court to ensure that people who lead protests, political or otherwise, without intending to incite violence are not held civilly liable for the actions of others who engage in violent criminal activities at those protests.
“The ramifications of this case could chill constitutionally-protected civil rights protests across the political spectrum,” said constitutional attorney John W. Whitehead, president of The Rutherford Institute and author of Battlefield America: The War on the American People. “This is yet another Machiavellian attempt by the government to sidestep the Constitution and prevent Americans from exercising their First Amendment right to 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 when responding 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 amassed 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 and 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 the Fifth Circuit Court of Appeals held that nothing in the First Amendment prohibits such liability based on negligence of Mckesson leading protesters to unlawfully block a highway. Despite the Supreme Court declining to hear the appeal, Justice Sotomayor issued a statement reiterating that the First Amendment bars the use of an objective standard like negligence for punishing speech and that the Court expresses no view about the merits of Mckesson’s constitutional defense. The police officer’s lawsuit can now proceed to trial on the claim that Mckesson should have known police would respond to protesters unlawfully blocking the highway, leading to violence. However, any finding of liability against Mckesson could possibly be appealed again.
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
