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.

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.

Mckesson v. Doe

Can a protest leader be held legally responsible for injuries inflicted by an unidentified person’s violent act at the protest?

Source: American Civil Liberties Union

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.

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.

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.

South Dakota Governor Caves on Attempted Efforts to Silence Pipeline Protesters

The state's quick retreat should serve as a lesson for other legislatures: if you criminalize protest, we will sue.

Source: American Civil Liberties Union

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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Today, the U.S. Equal Employment Opportunity Commission released its final regulations implementing the Pregnant Workers Fairness Act. The landmark statute mandating “reasonable accommodation” of workers’ pregnancy-related needs went into effect last summer, but the regulations explain the PWFA’s protections in more detail, providing additional guidance to workers, employers, and the courts so that the full force of the law is given effect.

That’s great news for workers like:

• Michelle Durham, an Alabama Emergency Medical Technician forced onto unpaid leave during pregnancy because her employer refused to honor her doctor’s directive that she not lift heavy stretchers and patients;
• Katia Hills, a retail worker from Indiana fired for absenteeism due to severe “morning sickness” and doctor’s visits; and
• Jennifer Panattoni, a police officer from Illinois forced to take leave without pay when she was denied temporary reassignment to a desk job.

Michelle, Katia, and Jennifer aren’t alone; millions of people, especially Black and Brown women at greatest risk of maternal morbidity and mortality, labor in strenuous jobs that could be dangerous during pregnancy – like health care, retail, and law enforcement – yet are routinely denied the temporary modifications they need to stay healthy. One study estimated that 250,000 people annually don’t get the accommodations they need, putting them at risk for miscarriage and other poor health outcomes on the one hand, and job loss on the other.

As the first federal statute enacted in 45 years to protect on-the-job rights of pregnant workers, Congress passed the PWFA to fill a significant gap in existing law when it comes to accommodations – those temporary on-the-job modifications that a person may need to maintain their health or the health of their pregnancy. These changes can be minor – such as a slightly later start time to account for “morning sickness” or more frequent breaks for workers who spend long shifts on their feet – or more significant, such as suspension of risky duties, like repeated heavy lifting or exposure to toxins.

Although workers with disabilities have been entitled to such changes for more than 30 years under the Americans with Disabilities Act, pregnant workers have lacked similarly explicit protections. The PWFA eliminates the Hobson’s Choice faced by pregnant workers – i.e., continue working under unsafe conditions or leave the job altogether – by requiring employers to accommodate workers with limitations caused by “pregnancy, childbirth, or related medical conditions” unless doing so would impose an “undue hardship” on the employer’s business. Given the statute’s obvious benefits to workers and their families alike, it’s no wonder that the PWFA was enacted with exceptionally broad bipartisan cooperation that is virtually unheard of in today’s Congress, and with supporters as diverse as the U.S. Chamber of Commerce, U.S. Conference of Catholic Bishops, and the American Civil Liberties Union, my employer.

When the EEOC issued a draft version of its PWFA regulations last August, a small but noisy group raised the alarm that the agency had gone rogue. Why? The EEOC specifically stated that “pregnancy, childbirth, or related medical conditions” includes abortion, so that time off for abortion care – like time off for other doctor’s visits and medical procedures – is a “reasonable accommodation” required by the new statute. Critics contended that such a requirement improperly forces employers to somehow participate in their employees’ abortion decisions, which they claimed is unfair to employers that object to abortion on religious grounds.

The Historic New Law Protecting Fairness for Pregnant Workers

After a decade of advocacy, the Pregnant Workers Fairness Act is going into effect.

Source: American Civil Liberties Union

Such objections are likely to reemerge now that the EEOC’s final regulations are out, because abortion remains among the list of reasons entitling workers to reasonable accommodation. But while the EEOC’s noisy critics paint the agency as radical, it is they who push a fringe view – one that disregards nearly half a century of legal history. In 1978, Congress passed the Pregnancy Discrimination Act, a law protecting workers from discrimination based on “pregnancy, childbirth, or related medical conditions.” At the time, Congress made clear that it considered abortion to fall within that definition – meaning that firing or refusing to hire someone because they have had an abortion is unlawful discrimination. In 1979, the EEOC issued guidelines consistent with that interpretation and reaffirmed those directives in 2015, while in the four and a half decades since the PDA’s passage, numerous courts have reached the same conclusion: discrimination based on abortion is discrimination based on “pregnancy, childbirth, or related medical conditions.” The phrase also has been interpreted by judges to cover a wide range of pre- and post-partum reproductive needs, including the use of contraceptives, infertility treatment, and lactation. At the same time, the PDA makes clear that employers are not required to cover abortion in their health plans, and subsequent court cases have not disturbed that provision. When Congress copied and pasted “pregnancy, childbirth, and related medical conditions” from the PDA into the PWFA, all of that interpretive precedent came with it. The EEOC’s new regulations simply implement the law Congress actually passed.

When it comes to the rights of religious employers, abortion opponents also get an “F” in history. While such entities long have enjoyed certain narrow exemptions from our discrimination laws – and the PWFA does nothing to disturb such precedent – courts repeatedly have refused to grant religious employers wholesale immunity from these statutes. Indeed, Congress rejected an amendment that would have exempted religious employers from the PWFA’s reach altogether. The EEOC regulations rightly also refuse to rubber-stamp discrimination in the name of religion, instead providing careful, case-by-case consideration to instances where a religious employer objects to an employee’s need for accommodation under the PWFA, if any happen to arise.

Sadly, since 2022’s ruling in Dobbs v. Jackson Women’s Health Organization overturning Roe v. Wade, the time off of work that is necessary to get an abortion has increased exponentially. At last count, more than 20 states have either banned or severely restricted abortion. As a result, a sizable share of the U.S. population – millions of people – are now faced with the prospect of traveling hundreds of miles to even access this critically important healthcare. To name just one example, in Texas, where a near-total ban is in place, the average one-way trip for abortion has ballooned by more than eight hours – an increase of a full.

The PWFA is historic, but not because it applies to abortion. Employers already are prohibited from taking adverse action against workers who have abortions. The PWFA simply bars them from punishing people for taking time away from the job to obtain abortion care – or any other reproductive health care. No one should have to risk their paycheck to get the medical care they need – and thanks to the PWFA, they don’t.

This piece was first published in Ms. Magazine on 4/15/24