Pending Supreme Court Case May Affect the Right to Protest

The Supreme Court may soon add another key First Amendment case to its docket — this time touching on the amendment’s lesser-known rights of assembly and petition.

First Amendment scholars and advocates have filed friend-of-the-court briefs supporting a petition in Mckesson v. Doe, urging the court to uphold its tradition of protecting the rights of protesters.

In the case pending before the court, an unidentified person threw a rock and injured an unnamed Baton Rouge, La., police officer during a Black Lives Matter protest in 2016. The officer, referred to as “John Doe,” sued DeRay Mckesson, who was a leader of the protest but not the person who injured the officer.

The concern expressed by First Amendment advocates is that if the leader of a protest group can be held liable for the wrongdoing of an unknown participant, valued forms of expression, assembly and petition will be chilled or silenced.

“The Mckesson case addresses the issue of whether the organizer of a lawful protest can be held personally liable for misconduct of one of the protestors,” said Floyd Abrams, senior counsel at Cahill Gordon & Reindel. “If that were the case, the right to protest could far too easily and routinely be stifled.”

Mckesson’s petition to the court states, “For would-be protesters, a rule that provides for limitless and standardless personal liability for wrongs the person did not encourage or approve, committed by unknown others, is functionally a rule of compelled silence.” Mckesson is represented by David Goldberg of Donahue, Goldberg, Weaver & Littleton, as well as lawyers from the American Civil Liberties Union.

Nicole Ligon, supervising attorney of the First Amendment Clinic at Duke Law School, said in an interview, “Civil protests have been the backbone of so many movements that are critical to American society.” Allowing protest leaders to be sued for the actions of unknown people, she added, would “derail a whole set of precedents that protect the right to organize, the right to protest.”

The Duke clinic worked on a brief filed with the Supreme Court on behalf of Abrams and the following: Erwin Chemerinsky, dean of University of California, Berkeley, School of Law; Walter Dellinger, partner at O’Melveny & Myers; Geoffrey Stone, professor at the University of Chicago Law School; Nadine Strossen, professor emerita at New York Law School; and Kenneth White, partner at Brown White & Osborn.

The main Supreme Court precedent that lawyers for Mckesson are pointing to is NAACP v. Claiborne Hardware Co., a 1982 decision that invoked the First Amendment to protect nonviolent protesters from being sued.

Merchants in Claiborne County, Mississippi, sued the NAACP in 1966 for mounting a boycott of white-owned stores that hurt their businesses. Acts of violence also occurred and the high court said those who were harmed by the violence could sue. But the organizers of the protest could not be sued, the court ruled.

“Through exercise of their First Amendment rights of speech, assembly, association and petition, rather than through riot or revolution, petitioners sought to bring about political, social and economic change,” the late Justice John Paul Stevens wrote for the majority. He added, “The right to associate does not lose all constitutional protection merely because some members of a group may have participated in conduct … that itself is not protected.”

The Claiborne Hardware case became a key precedent at a time when segregationists used litigation to cripple the civil rights movement.

In the Mckesson case, First Amendment advocates agreed that violent acts are not protected.

“Officer Doe is entitled to recover for his injury. But his remedy is owed by the rock thrower, not Mckesson. Mckesson did not throw the rock,” the brief stated. “What is at stake here is not the officer’s right to seek redress for his injuries but the First Amendment rights of organizers to use protest to express political and social views.”

When lawyers for Mckesson first went to court to challenge the officer’s lawsuit, a federal district judge sided with Mckesson, citing the Claiborne case. The case then went to the U.S. Court of Appeals for the Fifth Circuit, which ruled against Mckesson, finding that the First Amendment did not make him immune from being sued.

The appeals court heard the case again and came to the same conclusion. But in December 2019, the court issued yet another ruling, this time because one of the judges who ruled earlier changed his mind.

“Unquestionably, Officer Doe can sue the rock thrower. But I am unconvinced he can sue the protest leader,” Judge Don Willett stated. He said the Claiborne precedent “foreclosed squarely” the notion that Mckesson could be sued.

Willett went on to extoll the importance of protests. “In Hong Kong, millions of defiant pro-democracy protesters have taken to the streets, with demonstrations growing increasingly violent,” Willett wrote. “In America, political uprisings, from peaceful picketing to lawless riots, have marked our history from the beginning — indeed, from before the beginning. The Sons of Liberty were dumping tea into Boston Harbor almost two centuries before Dr. King’s Selma-to-Montgomery march (which, of course, occupied public roadways, including the full width of the bloodied Edmund Pettus Bridge).”

The Supreme Court was scheduled to consider on May 15 whether to take up the Mckesson case, but it has been postponed until June to give the police officer’s lawyers more time to respond to Mckesson’s briefs.

Tony Mauro is contributing U.S. Supreme Court correspondent for the National Law Journal and ALM Media, and a special correspondent for the Freedom Forum.

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