The Supreme Court Just Dealt a Massive Blow to the Right to Protest

Ellie Quinlan Houghtaling
·2 min read
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The Supreme Court’s inaction has effectively abolished the right to mass protest across three states, allowing a lower court’s ruling to seemingly infringe upon the Constitution’s First Amendment.

The nation’s highest court decided Monday not to hear Mckesson v. Doe, leaving in place a decision by the Fifth Circuit Court of Appeals that punishes protest organizers with extreme financial consequences if even one participant commits an illegal act. The decision, which now stands as law in Texas, Mississippi, and Louisiana, makes it dangerous and practically impossible to organize mass protests.

The case questioned whether DeRay Mckesson, the leader of a 2016 Black Lives Matter protest in Baton Rouge, Louisiana, could be held liable for negligence after an unidentified member of the march threw a rock at a police officer’s face, seriously injuring him.

But the high court’s decision not to take up the case does not necessarily mean that it agrees with the constitutionality of the lower court’s ruling. In a brief opinion, Justice Sonia Sotomayor pointed out that even though the court denied a review, “its denial today expresses no view about the merits of Mckesson’s claim.”

Instead, Sotomayor believes that another monumental decision by the court last year in Counterman v. Colorado—which looked at whether statements could be considered free speech if they were threatening in nature—should inform a review of Mckesson v. Doe in lower courts.

“In Counterman, the Court made clear that the First Amendment bars the use of ‘an objective standard’ like negligence for punishing speech,” she wrote. “Although the Fifth Circuit did not have the benefit of this Court’s recent decision in Counterman when it issued its opinion, the lower courts now do. I expect them to give full and fair consideration to arguments regarding Counterman’s impact in any future proceedings in this case.”

Mckesson was, ultimately, unsatisfied with the decision, lamenting the need to return to district court for a renewed opinion.

“Today, the Supreme Court did not grant cert in my case. This has been going on since 2016. And now we go back to the District Court,” he wrote on X. “This has been endless.”