On 15 April, the US Supreme Court allowed Black Lives Matter activist, DeRay McKesson, to be sued in negligence by a Louisiana police officer.
In 2016, following the fatal police shooting of Alton Sterling, McKesson led a Black Lives Matter demonstration in front of the Baton Rouge police station. John Ford was one of the officers assigned to arrest the demonstrators. In the course of breaking up the protest Ford was struck with a rock. He lost several teeth and suffered brain damage. The perpetrator was unknown, but Ford claimed that McKesson had negligently led the protest and was thus responsible in tort for his injuries.
In the lawsuit, Ford argued that McKesson was negligent as he should have known that his actions in leading the protest would inevitably result in the protest turning violent. McKesson not only disputed this claim but also argued that his First Amendment rights to free speech and peaceful assembly protected him from being held liable in negligence for the actions of the other protesters. In 2017 the US District Court judge agreed with McKesson, but the suit was revived on appeal to the 5th Circuit. In contrast with the District Court, the 5th Circuit Court ruled that the First Amendment did not protect the leaders of protests from being sued in negligence. The Court stated that the 1982 Supreme Court case of NAACP v Claiborne Hardware, which limited the liability of protest leaders for the actions of other protestors, did not prevent McKesson from being held liable. While the majority of the 5th Circuit held that McKesson was not protected, in a dissenting judgment, Judge Don Willet, remarked that if the majority’s decision had been used in the past then it “would have enfeebled America's street-blocking civil rights movement, imposing ruinous financial liability against citizens for exercising core First Amendment freedoms”. He also went on to state that while he believed that Ford unquestionably had the right to sue the person who threw the rock, he could not sue McKesson in negligence.
Following the 5th Circuit decision, McKesson appealed to the Supreme Court. In 2020 the Supreme Court vacated the decision and remanded it back to the 5th Circuit as there had been no evaluation of Louisiana state law. However, the case was sent back to the Supreme Court after the 5th Circuit concluded that Louisiana state law did allow for such an action. This time the Supreme Court elected not to hear the case.
This can be read as a major blow to the rights of protestors, and in a country where the police and demonstrators are almost constantly clashing holding protest leaders liable for the violent actions of a few may spell the end of social change through demonstrations. The American Civil Liberties Union (ACLU), which represented McKesson, stated that the 5th Circuit decision makes it so that, “only the most intrepid citizens would exercise their rights if doing so risked personal liability for third-parties’ wrongdoing”. However, while the Court provided no reasoning as to why they declined to hear the case, Supreme Court Justice, Sonia Sotomayor, did provide some reasoning and cautioned lower courts to not read too much into the decision not to hear the case. She pointed to the 2023 case of Counterman v Colorado, in which the Supreme Court stated that “the First Amendment precludes punishment [for incitement], whether civil or criminal, unless the speaker’s words were ‘intended’ (not just likely) to produce imminent disorder”. This protects the vast majority of protest leaders. Justice Sotomayor concluded by stating that the Supreme Court can decline to hear a case for any number of reasons, including that the issue of law central to the case has already been decided by the Court in a previous case.
This case does little but muddy the waters when it comes to the increasingly precarious position of protest leaders. While Justice Sotomayor’s comments indicate that McKesson’s case is not good precedent, declining to hear the case and thus issuing a ruling, places all protest leaders in the position of not knowing whether they may be held liable for the violent actions of a few. In a country where the police are often at odds with protestors this lack of ruling has the potential to have the effect of limiting protests in the future and thus curtailing the First Amendment.
Click here for Supreme Court Justice Sonia Sotomayor’s Statement