Can Protest Organizers Be Liable for Damage, Violence During Protests?

If you organize a protest, you cannot be held liable for damage or injury caused by someone else unless it can be proved that you incited, directed or participated in illegal acts.

The First Amendment protects protest organizers from being punished by the government for what they say, the views they hold or solely for associating with particular people. And U.S. Supreme Court decisions say organizers are not responsible for damage or injuries in which they were not involved.

What do the courts say about protest liability and the First Amendment?

In NAACP v. Claiborne Hardware Co. (1982), the U.S. Supreme Court said protest leaders cannot be held liable for the violent actions of a protest participant. The case involved an NAACP-led boycott in a Mississippi town where businesses discriminated against Black customers. The boycott was protected by the First Amendment, but business owners claimed that some of those boycotting threatened either business owners or other Black residents of the town who refused to participate in the boycott and that those threats are not protected by the First Amendment. The court said that members of a group — including the leaders — could be responsible only for violence committed by others in the group if (a) the group had illegal goals in mind and (b) if the individual specifically intended to use violence to achieve the group’s goals.

Nor can protest leaders be responsible for the unintended consequences of their words. In 1969, the Supreme Court decided in Brandenburg v. Ohio that a speaker can only be liable for actions resulting from words that were intended to incite imminent lawless violence. Simply organizing a peaceful protest does not rise to this standard, in part because most organization occurs well before the protest starts and lacks the required “imminence” to meet the Brandenburg standard. Even a passionate speech before or during the protest by the organizers would not rise to this standard unless the organizers clearly wanted the protest to turn violent.

In Counterman v. Colorado (2023), the justices ruled that the First Amendment allows punishment for a true threat against another person if the speaker intended for the person to feel threatened or “consciously disregarded a substantial risk” that the person would feel threatened.

Justice Sonya Sotomayor cited the Counterman decision in 2024 when the Supreme Court declined to consider an appeal in a protest liability case involving civil rights activist DeRay Mckesson. Writing for the court, Sotomayor said Counterman, Claiborne and other such cases “demand a showing of intent,” not just negligence.

When might organizers be liable for crimes at protests?

There are some legal conditions that might justify holding an organizer liable for the unlawful conduct of others:

• The organizer authorized, directed or approved specific activities leading to violence, damage or injury.
• Speeches or other public remarks during a protest were intended to incite lawless action — such as vandalism or random acts of violence — that followed within a reasonably brief period.
• The protest organizer’s speech or actions were intended to convey threats that the speaker should have known would be threatening to the recipient. This could include a situation where the protest organizers make statements that, in the context of mobilizing a large group, intentionally or recklessly caused a single person to fear that they would incur the crowd’s wrath.

Can a protest organizer be liable if a court determines they should have expected violence would result during the protest?

In July 2024, a federal court dismissed a long-running lawsuit against civil rights activist Mckesson that attempted to add a fourth circumstance: negligence. An organizer could be responsible if they “should have expected” that violence, damage or injury could result during or immediately after a protest.

But that decision has been appealed. On Dec. 24, the Louisiana police officer who filed the lawsuit asked the 5th U.S. Circuit Court of Appeals to reinstate the case. Three days later, McKesson asked the appellate court to reject the request.

The lawsuit twice reached the U.S. Supreme Court on legal issues. Justices sent the case back to lower courts to resolve. The officer sued Mckesson over injuries he suffered during a 2016 protest in Baton Rouge, Louisiana. During the protest, someone — not Mckesson, the officer conceded — threw a water bottle and injured the officer’s face and head.

At one point, the 5th Circuit had allowed the officer’s case to proceed. It said Mckesson could be liable for the officer’s injuries because they were foreseeable and the result of negligent planning. The court said Mckesson planned to block a public highway — a crime in Louisiana — which he should have known would make a violent confrontation with police more likely.

In dismissing the lawsuit in July, District Judge Brian A. Jackson ruled that negligence was insufficient to override First Amendment protections for protest. “As is clear from Counterman, the ‘negligent protest theory of a leader's liability for the violent act of a rogue assailant ... clashes head-on with constitutional fundamentals’. … (Mckesson) cannot be held liable in negligence for actions taken while exercising his First Amendment freedoms.”

Where do Americans stand on protest organizers and liability?

The nation is evenly divided on the liability issue, according to the 2024 “Where America Stands” survey, conducted by Freedom Forum, on public opinion and knowledge about the First Amendment and related issues. Fifty-one percent agreed that “organizers of a protest or demonstration should be held liable if violence occurs, regardless of who caused the violence.” The margin of error in the survey is 3.4%.

Gene Policinski is a senior fellow for the First Amendment at Freedom Forum. He can be reached at [email protected].