Will SCOTUS Protect the Right to Protest?

Since this country’s founding, when we’ve had something to say, we have taken to the streets. We’ve come together to celebrate our identities, to protect our land and our communities — and to push for change following injustice and tragedy. But if a recent decision from the Fifth Circuit Court of Appeals involving a Black Lives Matter protest is left standing, the right to protest will be in serious jeopardy.

That is why, today, we’re asking the Supreme Court to take the case.

The Fifth Circuit decision stems from protests that
erupted in Baton Rouge, Louisiana after two white police officers shot and
killed Alton Sterling, a Black man, on July 5, 2016. In the days that followed,
people took to the streets to make clear that Black lives matter. They came
together to express outrage, to call for accountability and justice, and to
demand change.  

Police responded not by engaging with the substance of
protestors’ calls, but with riot gear, excessive
force
, and illegitimate
arrests
. And one police officer brought a civil suit for
monetary damages based on allegations that, in the midst of the protest,
someone (we don’t know who) threw something (we don’t know what) and hit the
officer (we don’t even know his name). The one thing we know with certainty — and
based on the officer’s own allegations — is that the individual the officer
sued is not the person who threw the
object, but our client, DeRay Mckesson — an activist who was there to add his voice and to
amplify others
.

The district court that first reviewed the case
correctly dismissed it as violating a core tenet of the First Amendment: that,
in the context of a protest, individuals cannot be held liable for the unlawful,
unintended acts of others. But, after the officer appealed, the Fifth Circuit issued
a baffling
and deeply concerning order
that ignores that principle and, in
doing so, puts all of our free speech rights at risk. The court concluded that
a protester could be held liable for the foreseeable, but unintended, unlawful actions of a fellow protester. If allowed to
stand, the precedent could signal the end of protest.

The Fifth Circuit panel first concluded that Mckesson had no control over the individual who threw the object, and had not intended for the object to be thrown. Yet the judges concluded that Mckesson could be liable for the officer’s injuries.

Why? Because, during the protest, Mckesson (according
to the judges’ reading of the officer’s allegations) directed others onto the
street in front of police headquarters, purportedly in violation of a Louisiana
law. Because that act was allegedly not protected by the First Amendment, the panel
reasoned that Mckesson could be liable for any harm that followed — including another
person throwing an object at an officer — as long as it was foreseeable. And,
the panel concluded, it was foreseeable: As soon as people stepped out onto the
street, police officers would inevitably come to enforce Louisiana’s laws, and that
was enough to expect that violence could occur.

This logic is not only flawed, but also reveals a dismal view of police-citizen interaction. Even if law enforcement does often respond to protests with excessive force, that is not something courts should accept — or protesters or police should expect — as a given.

And the court’s flawed reasoning is also dangerous for
another reason. It means that, in the Fifth Circuit at least, protest leaders
can find themselves on the hook for an unlawful act they did not intend,
committed by an unidentified person they neither knew nor controlled.

To be clear, the First Amendment typically does not
protect someone from liability for breaking the law, even if they did so for
political reasons. That means that, had someone sued Mckesson for delaying
traffic, he may have been liable. Equally, had the officer sued the individual
who threw the object, the officer’s case would have been able to proceed
without threatening speech rights. But, in the context of a protest, the
allegation that Mckesson unlawfully impeded traffic cannot suffice to make him
liable for the independent, unintended act of the object-thrower.

The Supreme Court made this clear in 1982. While the
Constitution does not protect violence, the Court held, it does limit the
government’s ability to place responsibility for that violence onto peaceful
protesters. That seminal civil rights case, NAACP
v. Claiborne Hardware Co
., has been cited repeatedly to ensure robust
speech protections, including to dismiss
a lawsuit against then-candidate Donald Trump
for violent acts
committed at a campaign rally and to challenge
efforts to stifle Keystone XL pipeline protests
.

The Fifth Circuit’s opinion risks undoing all of that. Under the Fifth Circuit’s theory, a police officer — or, equally, a counter-protester — need only allege that a protest organizer directed or enabled other protesters to do any illegal thing, from overstaying a permit in order to pack up, to pumping the volume up a little too loud, to conducting a sit-in that obstructs access on a sidewalk or constitutes a trespass. Countless potential plaintiffs could argue that their injuries — sprained ankles, broken windows, extreme stress — probably would not have occurred had the protest not been at that place at that time, or had police or counter-protesters not responded as they did.

With these costly risks, who would be willing to lead
a protest? And, if, in a court’s view, the likelihood of police presence is
enough to make protesters liable for violence, nearly any protest could lead to
incalculable damages for organizers. Police presence is expected at the vast
majority of protests, especially those that draw large crowds or focus on
issues of public controversy.

Had this been the rule throughout our history, those leading this country’s seminal protests — from the celebrated civil rights protests of the 1960s to the anti-war protests of the 1970s — could have faced ruinous lawsuits. And, under the Fifth Circuit’s logic, advocates who were prosecuted for violating laws that, once they reached the Supreme Court, were deemed unconstitutional could equally have been burdened. In other words, the same individuals who established core First Amendment precedent — and who the Supreme Court held could not be criminally prosecuted — could have found themselves facing huge civil judgments for their advocacy, including at segregated lunch counters and libraries.

Thankfully, this isn’t how the Supreme Court has ever
looked at rules of liability in the context of protected expression. And the
Supreme Court should take this opportunity to make clear that it’s not how it
looks at those rules now. Otherwise, we may find our streets much emptier.  


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