Skip to main content

Sign up for our newsletter.

Quality journalism. Progressive values. Direct to your inbox.

DeRay Mckesson

"The one thing we know with certainty—and based on the officer's own allegations—is that the individual the officer sued is not the person who threw the object, but our client, DeRay Mckesson—an activist who was there to add his voice and to amplify others." (Photo: Jay Godwin/LBJ Library)

Will the US Supreme Court Protect the Right to Protest?

An officer sued DeRay Mckesson. The lawsuit, which should have been swiftly dismissed, now threatens the First Amendment rights of millions.

Since this country's founding, when we've had something to say, we have taken to the streets. We've come together to celebrate our identities, to protect our land and our communities—and to push for change following injustice and tragedy. But if a recent decision from the Fifth Circuit Court of Appeals involving a Black Lives Matter protest is left standing, the right to protest will be in serious jeopardy.

That is why, today, we're asking the Supreme Court to take the case.

The Fifth Circuit decision stems from protests that erupted in Baton Rouge, Louisiana after two white police officers shot and killed Alton Sterling, a Black man, on July 5, 2016. In the days that followed, people took to the streets to make clear that Black lives matter. They came together to express outrage, to call for accountability and justice, and to demand change.  

Police responded not by engaging with the substance of protestors' calls, but with riot gear, excessive force, and illegitimate arrests. And one police officer brought a civil suit for monetary damages based on allegations that, in the midst of the protest, someone (we don't know who) threw something (we don't know what) and hit the officer (we don't even know his name). The one thing we know with certainty—and based on the officer's own allegations—is that the individual the officer sued is not the person who threw the object, but our client, DeRay Mckesson—an activist who was there to add his voice and to amplify others.

The district court that first reviewed the case correctly dismissed it as violating a core tenet of the First Amendment: that, in the context of a protest, individuals cannot be held liable for the unlawful, unintended acts of others. But, after the officer appealed, the Fifth Circuit issued a baffling and deeply concerning order that ignores that principle and, in doing so, puts all of our free speech rights at risk. The court concluded that a protester could be held liable for the foreseeable, but unintended, unlawful actions of a fellow protester. If allowed to stand, the precedent could signal the end of protest.

The Fifth Circuit panel first concluded that Mckesson had no control over the individual who threw the object, and had not intended for the object to be thrown. Yet the judges concluded that Mckesson could be liable for the officer's injuries.

Why? Because, during the protest, Mckesson (according to the judges' reading of the officer's allegations) directed others onto the street in front of police headquarters, purportedly in violation of a Louisiana law. Because that act was allegedly not protected by the First Amendment, the panel reasoned that Mckesson could be liable for any harm that followed—including another person throwing an object at an officer—as long as it was foreseeable. And, the panel concluded, it was foreseeable: As soon as people stepped out onto the street, police officers would inevitably come to enforce Louisiana's laws, and that was enough to expect that violence could occur.

This logic is not only flawed, but also reveals a dismal view of police-citizen interaction. Even if law enforcement does often respond to protests with excessive force, that is not something courts should accept—or protesters or police should expect—as a given.

And the court's flawed reasoning is also dangerous for another reason. It means that, in the Fifth Circuit at least, protest leaders can find themselves on the hook for an unlawful act they did not intend, committed by an unidentified person they neither knew nor controlled.

To be clear, the First Amendment typically does not protect someone from liability for breaking the law, even if they did so for political reasons. That means that, had someone sued Mckesson for delaying traffic, he may have been liable. Equally, had the officer sued the individual who threw the object, the officer's case would have been able to proceed without threatening speech rights. But, in the context of a protest, the allegation that Mckesson unlawfully impeded traffic cannot suffice to make him liable for the independent, unintended act of the object-thrower.

The Supreme Court made this clear in 1982. While the Constitution does not protect violence, the Court held, it does limit the government's ability to place responsibility for that violence onto peaceful protesters. That seminal civil rights case, NAACP v. Claiborne Hardware Co., has been cited repeatedly to ensure robust speech protections, including to dismiss a lawsuit against then-candidate Donald Trump for violent acts committed at a campaign rally and to challenge efforts to stifle Keystone XL pipeline protests.

The Fifth Circuit's opinion risks undoing all of that. Under the Fifth Circuit's theory, a police officer—or, equally, a counter-protester—need only allege that a protest organizer directed or enabled other protesters to do any illegal thing, from overstaying a permit in order to pack up, to pumping the volume up a little too loud, to conducting a sit-in that obstructs access on a sidewalk or constitutes a trespass. Countless potential plaintiffs could argue that their injuries—sprained ankles, broken windows, extreme stress—probably would not have occurred had the protest not been at that place at that time, or had police or counter-protesters not responded as they did.

With these costly risks, who would be willing to lead a protest? And, if, in a court's view, the likelihood of police presence is enough to make protesters liable for violence, nearly any protest could lead to incalculable damages for organizers. Police presence is expected at the vast majority of protests, especially those that draw large crowds or focus on issues of public controversy.

Had this been the rule throughout our history, those leading this country's seminal protests—from the celebrated civil rights protests of the 1960s to the anti-war protests of the 1970s—could have faced ruinous lawsuits. And, under the Fifth Circuit's logic, advocates who were prosecuted for violating laws that, once they reached the Supreme Court, were deemed unconstitutional could equally have been burdened. In other words, the same individuals who established core First Amendment precedent—and who the Supreme Court held could not be criminally prosecuted—could have found themselves facing huge civil judgments for their advocacy, including at segregated lunch counters and libraries.

Thankfully, this isn't how the Supreme Court has ever looked at rules of liability in the context of protected expression. And the Supreme Court should take this opportunity to make clear that it's not how it looks at those rules now. Otherwise, we may find our streets much emptier.

© 2021 ACLU
Vera Eidelman

Vera Eidelman

Vera Eidelman is a staff attorney with the ACLU's Speech, Privacy, and Technology Project. She was previously a William J. Brennan fellow with the project. Eidelman is a graduate of Stanford University and Yale Law School. Before joining the ACLU, she served as a law clerk to the Hon. Beth Labson Freeman of the U.S. District Court for the Northern District of California.

This is the world we live in. This is the world we cover.

Because of people like you, another world is possible. There are many battles to be won, but we will battle them together—all of us. Common Dreams is not your normal news site. We don't survive on clicks. We don't want advertising dollars. We want the world to be a better place. But we can't do it alone. It doesn't work that way. We need you. If you can help today—because every gift of every size matters—please do. Without Your Support We Simply Don't Exist.

Border Patrol Accused of 'Unfathomable Cruelty' for Cracking Whips on Haitians

"It doesn't matter if a Democrat or Republican is president, our immigration system is designed for cruelty towards and dehumanization of immigrants," said Rep. Alexandria Ocasio-Cortez.

Brett Wilkins ·

As Gov. Tim Walz Proclaims 'Minnesota Climate Week,' Ilhan Omar Says 'Stop Line 3'

"The state of Minnesota simply cannot meet our carbon reduction targets if this pipeline goes through," said the Democratic congresswoman. "Our future is on the line."

Kenny Stancil ·

Supreme Court Announces Date for Case Directly Challenging Roe v. Wade

"The fate of Roe v. Wade and legal abortion is on the line."

Julia Conley ·

Avi Lewis Hoping Canadians' Climate Concerns Deliver Electoral 'Upset of Epic Proportions'

"We need to send Avi to Ottawa to shake up the entire political establishment, including his own party, and tip the scales in favor of people and the planet," said environmentalist David Suzuki.

Brett Wilkins ·

Sanders Denounces a Pentagon Budget System Found 'Inherently Susceptible to Fraud'

"They don't seem to want to get serious about spending taxpayer dollars wisely and effectively," said the Vermont senator, declaring it "absolutely unacceptable."

Andrea Germanos ·

Support our work.

We are independent, non-profit, advertising-free and 100% reader supported.

Subscribe to our newsletter.

Quality journalism. Progressive values.
Direct to your inbox.

Subscribe to our Newsletter.

Common Dreams, Inc. Founded 1997. Registered 501(c3) Non-Profit | Privacy Policy
Common Dreams Logo