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THE SUPREME COURT EFFECTIVELY ABOLISHES THE RIGHT TO MASS PROTEST IN
THREE STATES  
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Ian Millhiser
April 15, 2024
Vox
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_ It is no longer safe to organize a protest in Louisiana,
Mississippi, or Texas. The Court’s decision to leaves the Fifth
Circuit’s attack on the First Amendment in place. The Fifth
Circuit’s Mckesson decision remains good law in those three states.
_

Demonstrators march from Baton Rouge City Hall to the Louisiana
Capitol to protest the shooting of Alton Sterling by a police officer
on July 9, 2016, in Baton Rouge, Louisiana., Photo: Mark Wallheiser //
The New Republic

 

The Supreme Court [[link removed]] announced on Monday
that it will not hear _Mckesson v. Doe_
[[link removed]]. The
decision not to hear _Mckesson_ leaves in place a lower court
decision that effectively eliminated the right to organize a mass
protest
[[link removed]] in
the states of Louisiana, Mississippi, and Texas.

Under that lower court decision, a protest organizer faces potentially
ruinous financial consequences if a single attendee at a mass protest
commits an illegal act.

It is possible that this outcome will be temporary. The Court did not
embrace the United States Court of Appeals for the Fifth Circuit’s
decision attacking the First Amendment right to protest, but it did
not reverse it either. That means that, at least for now, the Fifth
Circuit’s decision is the law in much of the American South.

For the past several years, the Fifth Circuit has engaged in
a crusade against DeRay Mckesson
[[link removed]],
a prominent figure within the Black Lives Matter
[[link removed]] movement who organized a protest near a
Baton Rouge police station in 2016.

The facts of the _Mckesson _case are, unfortunately, quite tragic.
Mckesson helped organize the Baton Rouge protest following the fatal
police shooting of Alton Sterling
[[link removed]].
During that protest, an unknown individual threw a rock or similar
object at a police officer, the plaintiff in the _Mckesson _case who
is identified only as “Officer John Doe.” Sadly, the officer was
struck in the face and, according to one court, suffered “injuries
to his teeth, jaw, brain, and head
[[link removed]].”

Everyone agrees that this rock was not thrown by Mckesson, however.
And the Supreme Court held in _NAACP v. Claiborne Hardware_
[[link removed]] (1982)
that protest leaders cannot be held liable for the violent actions of
a protest participant, absent unusual circumstances that are not
present in the _Mckesson_ case — such as if Mckesson had
“authorized, directed, or ratified” the decision to throw the
rock.

Indeed, as Justice Sonia Sotomayor points out in a brief opinion
[[link removed]] accompanying
the Court’s decision not to hear _Mckesson_, the Court recently
reaffirmed the strong First Amendment protections enjoyed by people
like Mckesson in _Counterman v. Colorado_
[[link removed]] (2023).
That decision held that the First Amendment “precludes punishment”
for inciting violent action “unless the speaker’s words were
‘intended’ (not just likely) to produce imminent disorder.”

The reason _Claiborne_ protects protest organizers should be
obvious. No one who organizes a mass event attended by thousands of
people can possibly control the actions of all those attendees,
regardless of whether the event is a political protest, a music
concert, or the Super Bowl [[link removed]]. So, if
protest organizers can be sanctioned for the illegal action of any
protest attendee, no one in their right mind would ever organize a
political protest again.

Indeed, as Fifth Circuit Judge Don Willett, who dissented from his
court’s _Mckesson_ decision, warned in one of his dissents, his
court’s decision would make protest organizers liable for “the
unlawful acts of counter-protesters and agitators
[[link removed]].”
So, under the Fifth Circuit’s rule, a Ku Klux Klansman could
sabotage the Black Lives Matter movement simply by showing up at its
protests and throwing stones.

The Fifth Circuit’s _Mckesson_ decision is obviously wrong

Like _Mckesson_, _Claiborne_ involved a racial justice protest that
included some violent participants. In the mid-1960s, the NAACP
launched a boycott of white merchants in Claiborne County,
Mississippi. At least according to the state supreme court, some
participants in this boycott “engaged in acts of physical force and
violence against the persons and property of certain customers and
prospective customers” of these white businesses.

Indeed, one of the organizers of this boycott did far more to
encourage violence than Mckesson is accused of in his case. Charles
Evers, a local NAACP leader, allegedly said in a speech to boycott
supporters that “if we catch any of you going in any of them racist
stores, we’re gonna break your damn neck
[[link removed]].”

But the Supreme Court held that this “emotionally charged rhetoric
... did not transcend the bounds of protected speech.” It ruled that
courts must use “extreme care” before imposing liability on a
political figure of any kind. And it held that a protest leader may
only be held liable for a protest participant’s actions in very
limited circumstances
[[link removed]]: 
 

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.

The Fifth Circuit conceded, in a 2019 opinion
[[link removed]],
that Officer Doe “has not pled facts that would allow a jury to
conclude that Mckesson colluded with the unknown assailant to attack
Officer Doe, knew of the attack and ratified it, or agreed with other
named persons that attacking the police was one of the goals of the
demonstration.” So that should have been the end of the case.

Instead, in its most recent opinion in this case, the Fifth Circuit
concluded that _Claiborne_’s “three separate theories that might
justify” holding a protest leader liable are a non-exhaustive list,
and that the MAGA-infused court is allowed to create new exceptions to
the First Amendment. It then ruled that the First Amendment does not
apply “where a defendant creates unreasonably dangerous conditions,
and where his creation of those conditions causes a plaintiff to
sustain injuries.”

And what, exactly, were the “unreasonably dangerous conditions”
created by the Mckesson-led protest in Baton Rouge? The Fifth Circuit
faulted Mckesson for organizing “the protest to begin in front of
the police station, obstructing access to the building,” for failing
to “dissuade” protesters who allegedly stole water bottles from a
grocery store, and for leading “the assembled protest onto a public
highway, in violation of Louisiana criminal law.”

Needless to say, the idea that the First Amendment recedes the moment
a mass protest violates a traffic law is quite novel. And it is
impossible to reconcile with pretty much the entire history of mass
civil rights protests in the United States.

 
Dr. Martin Luther King Jr. leads marchers in what the Fifth Circuit
calls an “unreasonably dangerous” activity. (Morton Broffman  //
 Vox)
In fairness, the Court’s decision to leave the Fifth Circuit’s
attack on the First Amendment in place could be temporary. As
Sotomayor writes in her _Mckesson_ opinion, when the Court announces
that it will not hear a particular case it “expresses no view about
the merits.” The Court could still restore the First Amendment right
to protest in Louisiana, Mississippi, and Texas in a future case.

For the time being, however, the Fifth
Circuit’s _Mckesson_ decision remains good law in those three
states. And that means that anyone who organizes a political protest
within the Fifth Circuit risks catastrophic financial liability.

_[IAN MILLHISER [[link removed]] is a
senior correspondent at Vox, where he focuses on the Supreme Court,
the Constitution, and the decline of liberal democracy in the United
States. He received a JD from Duke University and is the author of two
books on the Supreme Court.]_

* First Amendment
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* Supreme Court
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* McKesson v. Doe
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* Protest
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* mass protest
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* civil rights movement
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* Louisiana
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* Mississippi
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* texas
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* Black Lives Matter
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* African Americans
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* Fifth Circuit
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* South
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