DeRay Mckesson receives the Best Political Podcast award for ‘Pod Save The People’ at the 2020 iHeartRadio Podcast Awards, held at iHeartRadio Theater on January 17, 2020, in Burbank, California. (Photo by JC Olivera/Getty Images)
May 28, 2024 Story by: Editor
On Monday, the Supreme Court declined to consider an appeal from DeRay Mckesson, a prominent Black Lives Matter organizer, leaving in place a lower court’s ruling that some critics worry could restrict Americans’ First Amendment rights to protest against government and police actions.
As a result, Mckesson’s case will return to a lower court for further evaluation.
While there were no noted dissents, Justice Sonia Sotomayor wrote separately, indicating that lower courts should consider a separate First Amendment decision from the previous term that could potentially benefit Mckesson.
The case stems from a Baton Rouge protest following the 2016 police shooting of Alton Sterling, a Black resident. This incident led to nationwide protests, some of which turned violent, including the 2020 demonstrations after George Floyd’s death at the hands of Minneapolis police.
The injured officer’s legal team argued that Mckesson organized an unlawful protest and that the resulting violence was foreseeable. They claimed the First Amendment does not shield organizers from liability if their actions are “negligent, illegal and dangerous.” The officer, who lost teeth and sustained “brain and head” injuries from a thrown object, was represented by these lawyers.
Mckesson’s defense cited a significant 1982 Supreme Court decision related to the Civil Rights Movement. That decision unanimously restricted liability for protest organizers in similar situations, overturning a Mississippi Supreme Court ruling that held Charles Evers, a civil rights activist, liable for damages from a 1966 boycott of White merchants.
The officer, using the pseudonym John Doe, contended that the precedent did not apply because the violence in Louisiana was “reasonably foreseeable” and a result of Mckesson’s “negligent, and illegal activity.”
The Supreme Court had previously reviewed this case. In a 2020 unsigned opinion, the justices sent it back to appeals courts to review Louisiana law, avoiding First Amendment issues. After reconsideration, Mckesson still lost.
In the most recent ruling, the US Court of Appeals for the 5th Circuit once again sided with the officer.
“This case would be different if all Mckesson had done was organize a lawful protest, and if an unidentified protester had nonetheless assaulted Doe,” the majority opinion from the 5th Circuit read. “But that is not what Doe alleges happened. Rather, Doe alleges that Mckesson organized and led the protest in such a manner that his actions ‘were likely to incite lawless action.’”
US Circuit Judge Don Willett, writing in partial dissent, warned that the majority’s stance would “reduce First Amendment protections for protest leaders to a phantasm, almost incapable of real-world effect.” Source: The Philadelphia Tribune
