The Supreme Court made an announcement on Monday stating that it will not be hearing the case of Mckesson v. Doe. This decision means that the lower court ruling, which essentially removed the right to organize large-scale protests in Louisiana, Mississippi, and Texas, will remain in place.
A protest organizer could face severe financial consequences under the lower court decision, where even if one attendee at a mass protest engages in illegal activities.
There is a possibility that this outcome may only be temporary. The Court did not fully support the decision made by the United States Court of Appeals for the Fifth Circuit, which undermines the First Amendment right to protest. However, the Court also did not overturn it. As a result, the Fifth Circuit’s decision currently holds as the law in a significant portion of the American South.
In recent years, the Fifth Circuit has been actively targeting DeRay Mckesson, a well-known advocate in the Black Lives Matter movement. Mckesson organized a protest near a police station in Baton Rouge back in 2016.
According to consensus, it is widely acknowledged that Mckesson was not the one who threw the rock. In the landmark case of NAACP v. Claiborne Hardware (1982), the Supreme Court established that protest leaders cannot be held responsible for the violent actions of a participant unless certain exceptional circumstances, which do not apply in the Mckesson case, are present. These circumstances would include instances where Mckesson had explicitly “authorized, directed, or ratified” the act of throwing the rock.
Justice Sonia Sotomayor highlights in a concise opinion that accompanied the Court’s decision to not hear the case of Mckesson, the recent reaffirmation of the robust First Amendment protections for individuals like Mckesson in the Counterman v. Colorado (2023) ruling. The Counterman decision made it clear that the First Amendment prevents punishment for inciting violence, unless the speaker’s words were specifically intended, rather than merely likely, to cause immediate disorder.
It is quite evident why Claiborne takes measures to protect protest organizers. It is simply impossible for someone to have complete control over the actions of thousands of individuals attending a mass event, be it a political protest, a music concert, or even the Super Bowl. If organizers were to face consequences for the illegal actions of any attendee, it would discourage anyone from ever organizing a political protest again.
As Fifth Circuit Judge Don Willett warned in his dissent from the court’s decision in Mckesson, the ruling would hold protest organizers accountable for the actions of counter-protesters and agitators. This means that under the Fifth Circuit’s rule, a member of the Ku Klux Klan could undermine the efforts of the Black Lives Matter movement by attending their protests and engaging in destructive behavior.
The Fifth Circuit’s Mckesson decision is obviously wrong
Like Mckesson, Claiborne was also related to a racial justice protest that had some participants engaging in violence. In the 1960s, the NAACP initiated a boycott of white merchants in Claiborne County, Mississippi. According to the state supreme court, some individuals involved in the boycott resorted to physical force and violence against the customers and potential customers of these white businesses.
In fact, Charles Evers, a local NAACP leader and one of the organizers of this boycott, reportedly made a statement during a speech to boycott supporters that was even more incendiary than the accusations against Mckesson in his case. Evers allegedly warned, “If we catch any of you going into any of those racist stores, we’re going to break your damn neck.”
The Supreme Court determined that the emotionally charged rhetoric used in this case did not exceed the limits of protected speech. It emphasized the need for caution when imposing liability on any political figure and stated that a protest leader can only be held responsible for a participant’s actions under specific circumstances.
There are three separate theories that might justify holding Evers liable for the unlawful conduct of others. First, a finding that he authorized, directed, or ratified specific tortious activity would justify holding him responsible for the consequences of that activity. Second, a finding that his public speeches were likely to incite lawless action could justify holding him liable for unlawful conduct that in fact followed within a reasonable period. Third, the speeches might be taken as evidence that Evers gave other specific instructions to carry out violent acts or threats.
In a 2019 opinion, the Fifth Circuit acknowledged that Officer Doe’s claim lacked sufficient evidence to establish that Mckesson colluded with the unidentified assailant, had prior knowledge of the attack and approved it, or conspired with other individuals to make attacking the police a goal of the demonstration. As a result, this should have marked the conclusion of the case.
The most recent opinion in this case by the Fifth Circuit takes a different approach. Instead of relying solely on the three theories put forth by Claiborne to hold a protest leader liable, the court considers these theories as a non-exhaustive list. Additionally, the court asserts its authority to create new exceptions to the First Amendment, given the influence of MAGA. Consequently, it concludes that the First Amendment does not apply in situations where a defendant creates unreasonably dangerous conditions leading to injuries sustained by the plaintiff.
The Mckesson-led protest in Baton Rouge created “unreasonably dangerous conditions” as stated by the Fifth Circuit. Mckesson was faulted for organizing the protest to start in front of the police station, obstructing access to the building. Additionally, he was criticized for not dissuading protesters who allegedly stole water bottles from a grocery store. Moreover, Mckesson led the assembled protest onto a public highway, which violated Louisiana criminal law.
The notion that the First Amendment loses its effect when a mass protest breaks a traffic law is certainly innovative. However, this idea contradicts the extensive history of mass civil rights protests in the United States.
The Court’s decision to uphold the Fifth Circuit’s challenge to the First Amendment may only be temporary, according to Sotomayor in her Mckesson opinion. When the Court chooses not to hear a specific case, it does not express any opinion on the merits. Therefore, there is still a possibility that the First Amendment right to protest could be reinstated in Louisiana, Mississippi, and Texas in a future case.
Currently, the Mckesson decision by the Fifth Circuit continues to be valid in those three states. Consequently, individuals who organize political protests within the Fifth Circuit face the potential of severe financial consequences.
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