The Supreme Court Made It Almost Impossible to Organize Protests in Three States

Nikki McCann Ramirez
·2 min read
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The Supreme Court decided on Monday not to intervene in a lawsuit seeking to hold the organizer of a Black Lives Matter protest liable for injuries sustained by a police officer who was attacked by a demonstrator. The decision leaves in place an appeals court ruling that effectively renders organizers liable for any illegal act committed by protest attendees in three states: Texas,  Louisiana, and Mississippi.

In June of last year, the Fifth Circuit Court of Appeals, which oversees the three states, ruled in Doe v. Mckesson that protest organizer DeRay Mckesson could be sued by an unnamed police officer who was struck in the face and severely injured by a heavy object thrown at them during a 2016 protest in Baton Rouge, Louisiana — even though the court admitted that there is no evidence Mckesson had any direct involvement in the incident.

Judge Jennifer Elrod wrote that Mckesson could be held liable because he created “unreasonably dangerous conditions” by protesting in front of a police station and that organizers did not have to intend for a protest to become violent in order to establish liability.

Mckesson appealed to the Supreme Court in 2020, which ruled that the Fifth Circuit’s decision needed to first be certified by the Louisiana Supreme Court, which determined that the officer’s lawsuit could move forward. In once again refusing to take up the case, the Supreme Court is tacitly allowing the Fifth Circuit to rewrite decades of established First Amendment laws protecting the rights of protesters, and opening the floodgates for bad actors looking to quell protest movements to inundate organizers with potentially frivolous lawsuits.

Why not intervene? Well, according to the Supreme Court, they’ve already settled the question. The court “made clear that the First Amendment bars the use of an objective standard like negligence for punishing speech, and it read [NAACP v. Claiborne Hardware Co.] and other incitement cases as demanding a showing of intent,” wrote Associate Justice Sonia Sotomayor in a statement about Doe v. McKesson, adding that the Fifth Circuit should “give full and fair consideration to arguments regarding Counterman’s impact in any future proceedings in this case.”

“The goal of lawsuits like these is to prevent people from showing up at a protest out of the fear that they might be held responsible if anything happens,” Mckesson said in October of last year. “If this precedent lasts, it could make organizers all across the country responsible for all types of things they have no control over, such as random people coming into a protest and causing problems. We can’t let that happen.”

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