The Supreme Court recently declined to hear a case, Mckesson v. Doe, that could have affirmed that the First Amendment protects protest organizers from being held liable for illegal actions committed by others present that organizers did not direct or intend. The high court’s decision to not hear the case at this time left in place an opinion by the Fifth Circuit, which covers Louisiana, Mississippi, and Texas, that said a protest organizer could be liable for the independent, violent actions of others based on nothing more than a showing of negligence.
Across the country, many people have expressed concern about how the Supreme Court’s decision not to review, or hear, the case at this stage could impact the right to protest. The ACLU, which asked the court to take up the case, breaks down what the court’s denial of review means.
What Happened in Mckesson v. Doe?
The case, Mckesson v. Doe, was brought by a police officer against DeRay Mckesson, a prominent civil rights activist. The officer claims that Mckesson should be liable for personal injuries he suffered after an unknown individual — not Mckesson — threw a “rock-like” object at the officer during a 2016 protest of the killing of Alton Sterling by Baton Rouge, Louisiana police.
The officer does not claim that Mckesson encouraged or even knew about the rock-throwing. Rather than sue the rock-thrower, however, the officer is suing Mckesson on the theory that he allegedly organized the protest and in turn had a duty to protect every person there. In doing so, the argument goes, he “should have known” an assault could occur.
The idea is that a protest organizer can be held responsible for what a stranger present at the protest does to someone else, not because the organizer asked or meant for them to do it, but merely because it was foreseeable that they might. If this theory of “negligent protest” were accepted, it would become far more risky to organize a protest. The ACLU has argued that this standard of liability violates the First Amendment in part because it would pose an unconstitutional burden on our right to protest.
Despite this, and after several years of procedural back-and-forth between courts, the Fifth Circuit ruled in 2023 that the negligence claim against McKesson did not violate the First Amendment. Instead, the Fifth Circuit held that a protest organizer could be liable for the independent, violent actions of others based on nothing more than a showing of negligence.
Recognizing how this decision squarely violates First Amendment fundamentals, the ACLU and co-counsel filed a petition for certiorari, asking the Supreme Court to overturn the Fifth Circuit’s obviously wrong ruling. Unfortunately, the court denied our petition.
What Does the Supreme Court’s Denial of Review Mean for Our Right to Protest?
While the Supreme Court does not generally explain why it declines to hear a case — and it can do so for any number of reasons — Justice Sonia Sotomayor wrote a statement accompanying the denial that might explain the reason in this case: the Supreme Court has already settled this question, so the law is not in need of further clarification.
In her statement, Justice Sotomayor explains that, in 2023, shortly after the Fifth Circuit’s decision, the Supreme Court issued an opinion in Counterman v. Colorado, where it confirmed that negligence is never a sufficient basis for imposing liability on political expression and association. In fact, in Counterman, the court made it explicitly clear that, when it comes to drawing the line between unprotected incitement and the kinds of “strong protests against the government and prevailing social order” that lie at the heart of the First Amendment, a showing of intent is required. That’s a much higher standard than negligence, which asks only whether someone who didn’t know what impact their speech would have should have known the possible effect. Intent, in contrast, requires that the speaker knew about, wanted, and aimed for the resulting harm.
Justice Sotomayor concluded her statement by emphasizing that while the Fifth Circuit did not have the benefit of the Supreme Court’s recent decision in Counterman when it issued its opinion, the lower courts in this case (and in general) now do, and are expected to fairly apply that decision in future proceedings.
Has Our Right to Protest Changed?
Some people have suggested that the Supreme Court’s decision not to hear this case means that our right to protest has been effectively abolished in three U.S. states. That’s not accurate.
While it is true that the Fifth Circuit’s erroneous decision has not been vacated, and technically could be invoked against protest organizers in Louisiana, Mississippi, and Texas, it is important to understand two things.
First, separate from the First Amendment problem, there’s the question of whether a “negligent protest” claim even exists under a state’s civil law. In Mckesson, the Louisiana Supreme Court said yes, but the high courts in Texas and Mississippi haven’t said the same. That means, the theory of “negligent protest” in Mckesson is specific to Louisiana state law.
Second, when it comes to the First Amendment, the Supreme Court has made it explicitly clear in many other cases that negligence is too low a threshold for imposing liability on one person for another person’s violence or other illegal acts at a protest.
To take just one example, in 1982, the court held that while the Constitution does not protect violence, it does limit the government’s ability to place responsibility for that violence onto peaceful protest leaders who did not direct or intend it. 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 by others at a campaign rally and to challenge efforts to stifle Keystone XL pipeline protests. As Justice Sotomayor’s statement highlighted, the court recently reaffirmed these rules in Counterman.
However, since the Supreme Court did not officially reverse the Fifth Circuit’s decision, it is possible that a court in Louisiana may decide to apply the Fifth Circuit’s logic. Say, for example, that a small crowd of people act violently at a protest in Louisiana and the protest organizer — who had no connection to the violence — is subsequently sued for negligence. The lower court should heed Justice Sotomayor’s statement, correctly apply Counterman, and dismiss this claim for violating the First Amendment. But it is possible that a lower court would still apply the Fifth Circuit’s decision, issued prior to Counterman. If that were to happen, the ACLU is interested in fighting alongside the organizer to ensure that the correct rule ultimately applies, and that the Fifth Circuit’s clearly erroneous decision does not govern anywhere.
Since our founding, efforts to silence dissent have emerged in moments of mass protest, like what we find ourselves in today. However, the Supreme Court has consistently upheld our right to protest and our right to be responsible only for our own actions. Today, the ACLU urges the lower courts to continue protecting our rights, and to deny the Fifth Circuit’s deeply misguided theory from gaining any traction. No one should be afraid to express dissent, to advocate for change, or to support causes they believe in.
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