This column expresses the views of Tony Mauro, special correspondent for the Freedom Forum.
The Supreme Court on Monday rejected a lower court ruling, temporarily at least, that would have weakened the judiciary’s longstanding tradition of protecting the rights of protesters under the First Amendment’s rights of assembly and petition.
In the case before the court, titled Mckesson v. Doe, 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, the rights of expression, assembly and petition will be chilled or silenced. Floyd Abrams, senior counsel at Cahill Gordon & Reindel, said, “If that were the case, the right to protest could far too easily and routinely be stifled.”
The U.S. Court of Appeals for the Fifth Circuit had ruled that Mckesson could be held liable for the injuries suffered by the police officer, in spite of First Amendment precedents to the contrary.
But on Monday, the Supreme Court scolded the Fifth Circuit, stating that it “should not have ventured into so uncertain an area of tort law — one laden with value judgments and fraught with implications for First Amendment rights — without first seeking guidance on potentially controlling Louisiana law from the Louisiana Supreme Court.”
The 7-1 ruling was unsigned, with one dissent from Justice Clarence Thomas. New Justice Amy Coney Barrett did not participate in deciding the case.
The justices said the Fifth Circuit had not adequately taken Louisiana statutes into account, making it unclear as to whether the lawsuit against Mckesson could proceed under Louisiana law. The high court sent the case back to the Fifth Circuit “for further proceedings,” and the case may return to the Supreme Court at a later date.
The Supreme Court also cited its 1982 precedent NAACP v. Claiborne Hardware Co., which invoked the First Amendment to protect nonviolent protesters from being sued. Merchants in Claiborne County, Miss., 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 Supreme 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.”
But the Fifth Circuit ruled that the Claiborne precedent did not protect Mckesson from being held liable, a judgment the appeals court will have to reconsider with Louisiana law in mind.
David Goldberg, Mckesson’s lawyer in the case, said Monday, “Today’s action by the Supreme Court represents an important step in vindicating the right to protest — the rights of all Americans to speak, assemble and petition their government. And it is a significant defeat for those who seek to use the threat of damages lawsuits to silence the voices of people of modest means who participate in our government by taking to the streets to have their voices heard.”
Vera Eidelman, an American Civil Liberties Union staff attorney, also said, “As millions of Americans across the country have shown in recent months since the police killing of George Floyd, the right to take to the streets and protest injustice and police brutality is essential to protecting our democracy. Under the First Amendment, protestors cannot be held liable for the unlawful acts of others that they did not direct, order or incite simply because they were at the same protest. We are gratified the Supreme Court has recognized there are important First Amendment issues at stake and has asked the state courts to review whether their law even permits such a suit. We look forward to a ruling reaffirming that the fundamental right to protest cannot be attacked in this way.”
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.