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The Supreme Court announced on Monday that it will not hear Mckesson v. Doe. The decision not to hear Mckesson leaves in place a lower court decision that effectively eliminated the right to organize a mass protest in the states of Louisiana, Mississippi, and Texas.

Under that lower court decision, a protest organizer faces potentially ruinous financial consequences if a single attendee at a mass protest commits an illegal act.

It is possible that this outcome will be temporary. The Court did not embrace the United States Court of Appeals for the Fifth Circuits decision attacking the First Amendment right to protest, but it did not reverse it either. That means that, at least for now, the Fifth Circuits decision is the law in much of the American South.

For the past several years, the Fifth Circuit has engaged in a crusade against DeRay Mckesson, a prominent figure within the Black Lives Matter movement who organized a protest near a Baton Rouge police station in 2016.

The facts of the Mckesson case are, unfortunately, quite tragic. Mckesson helped organize the Baton Rouge protest following the fatal police shooting of Alton Sterling. During that protest, an unknown individual threw a rock or similar object at a police officer, the plaintiff in the Mckesson case who is identified only as Officer John Doe. Sadly, the officer was struck in the face and, according to one court, suffered injuries to his teeth, jaw, brain, and head.

Everyone agrees that this rock was not thrown by Mckesson, however. And the Supreme Court held in NAACP v. Claiborne Hardware (1982) that protest leaders cannot be held liable for the violent actions of a protest participant, absent unusual circumstances that are not present in the Mckesson case such as if Mckesson had authorized, directed, or ratified the decision to throw the rock.

Indeed, as Justice Sonia Sotomayor points out in a brief opinion accompanying the Courts decision not to hear Mckesson, the Court recently reaffirmed the strong First Amendment protections enjoyed by people like Mckesson in Counterman v. Colorado (2023). That decision held that the First Amendment precludes punishment for inciting violent action unless the speakers words were intended (not just likely) to produce imminent disorder.

The reason Claiborne protects protest organizers should be obvious. No one who organizes a mass event attended by thousands of people can possibly control the actions of all those attendees, regardless of whether the event is a political protest, a music concert, or the Super Bowl. So, if protest organizers can be sanctioned for the illegal action of any protest attendee, no one in their right mind would ever organize a political protest again.

Indeed, as Fifth Circuit Judge Don Willett, who dissented from his courts Mckesson decision, warned in one of his dissents, his courts decision would make protest organizers liable for the unlawful acts of counter-protesters and agitators. So, under the Fifth Circuits rule, a Ku Klux Klansman could sabotage the Black Lives Matter movement simply by showing up at its protests and throwing stones.

Like Mckesson, Claiborne involved a racial justice protest that included some violent participants. In the mid-1960s, the NAACP launched a boycott of white merchants in Claiborne County, Mississippi. At least according to the state supreme court, some participants in this boycott engaged in acts of physical force and violence against the persons and property of certain customers and prospective customers of these white businesses.

Indeed, one of the organizers of this boycott did far more to encourage violence than Mckesson is accused of in his case. Charles Evers, a local NAACP leader, allegedly said in a speech to boycott supporters that if we catch any of you going in any of them racist stores, were gonna break your damn neck.

But the Supreme Court held that this emotionally charged rhetoric ... did not transcend the bounds of protected speech. It ruled that courts must use extreme care before imposing liability on a political figure of any kind. And it held that a protest leader may only be held liable for a protest participants actions in very limited circumstances:

There are three separate theories that might justify holding Evers liable for the unlawful conduct of others. First, a finding that he authorized, directed, or ratified specific tortious activity would justify holding him responsible for the consequences of that activity. Second, a finding that his public speeches were likely to incite lawless action could justify holding him liable for unlawful conduct that in fact followed within a reasonable period. Third, the speeches might be taken as evidence that Evers gave other specific instructions to carry out violent acts or threats.

The Fifth Circuit conceded, in a 2019 opinion, that Officer Doe has not pled facts that would allow a jury to conclude that Mckesson colluded with the unknown assailant to attack Officer Doe, knew of the attack and ratified it, or agreed with other named persons that attacking the police was one of the goals of the demonstration. So that should have been the end of the case.

Instead, in its most recent opinion in this case, the Fifth Circuit concluded that Claibornes three separate theories that might justify holding a protest leader liable are a non-exhaustive list, and that the MAGA-infused court is allowed to create new exceptions to the First Amendment. It then ruled that the First Amendment does not apply where a defendant creates unreasonably dangerous conditions, and where his creation of those conditions causes a plaintiff to sustain injuries.

And what, exactly, were the unreasonably dangerous conditions created by the Mckesson-led protest in Baton Rouge? The Fifth Circuit faulted Mckesson for organizing the protest to begin in front of the police station, obstructing access to the building, for failing to dissuade protesters who allegedly stole water bottles from a grocery store, and for leading the assembled protest onto a public highway, in violation of Louisiana criminal law.

Needless to say, the idea that the First Amendment recedes the moment a mass protest violates a traffic law is quite novel. And it is impossible to reconcile with pretty much the entire history of mass civil rights protests in the United States.

In fairness, the Courts decision to leave the Fifth Circuits attack on the First Amendment in place could be temporary. As Sotomayor writes in her Mckesson opinion, when the Court announces that it will not hear a particular case it expresses no view about the merits. The Court could still restore the First Amendment right to protest in Louisiana, Mississippi, and Texas in a future case.

For the time being, however, the Fifth Circuits Mckesson decision remains good law in those three states. And that means that anyone who organizes a political protest within the Fifth Circuit risks catastrophic financial liability.

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The Supreme Court effectively abolishes the right to mass protest in three US states - Vox.com

Early this week, protesters around the country organized to stop or delay car traffic in several major cities San Francisco, Seattle, Chicago, and New York to draw attention to the ongoing horrors in Gaza. Their tactics included no threats and no attacks; they didnt do any physical damage to the infrastructure or harm anyone. Instead, following a long tradition, these protesters simply used nonviolent civil disobedience as a means of challenging government policy. They wanted lawmakers to hear their message, and they were willing to make major (and peaceful) disruption to do it.

So naturally, U.S. Senator Tom Cotton of Arkansas called for these protests to be met with violent reprisals. According to this federal elected official, when stalled in traffic by peaceful protesters, drivers should leave their vehicles and use force against their fellow citizens over a minor disruption. Not exactly what democracy looks like.

Of course, this isnt the first time Senator Cotton has called for violence against people using their First Amendment rights. In an infamous 2020 editorial for The New York Times, Cotton suggested that the George Floyd protests should provoke a military response. At that point, thousands of Americans in almost every locale had emerged from pandemic protocols to engage in one of the largest mass protests in U.S. history, and Tom Cotton thought the appropriate government response was threatening to shoot citizens with bullets that they paid for. In the moment, his defense of this unconstitutional reaction rested on the thin distinction between protesters and rioters. Four years later, hes not even trying to be subtle: He wants to attack people who politically disagree with him, and he thinks its okay for his ideological fellow travelers to do the same.

Such blatant disregard for constitutional rights isnt new: That contempt led to the violent dispersion of the infamous Bonus March where WW1 veterans camped out, seeking their promises benefits, produced many of the iconic images of abuse from the Civil Rights Movement, including the photographs of children being hit by firehoses and attacked by dogs, and forced anti-war protesters into free speech zones during the 2004 Republican convention in New York. As frequently as citizens have used our right to peaceably assemble for the government we want, the one we have has deployed force and condoned violence to undermine us.

But just because it is a common response doesnt make it a fair or acceptable one. Over the decades, we have had aggression and abuse against nonviolent protest normalized with comments from the likes of Senator Cotton, who has put himself in the company of Bull Connor and George Wallace with his brutal disregard for peaceful political disagreement. Leaders like him introduce instability and conflict to the simple and necessary act of demanding more from our government, and in doing so, make all of us less safe.

The reason Senator Cotton and his ilk bring violence to bear when citizens ask for improvement is because they cant win the argument on the merits. Its no coincidence that he signed onto the defense of January 6th insurrectionists who tried to capture and possibly kill members of Congress while turning around and attacking peaceful protesters trying to stop a war. He doesnt want to limit violence; he wants to wield it.

But the right to peaceably assemble remains foundational to a democratic society, and we should use every attack on that right as an opportunity to defend it. The ability to nonviolently protest and petition our government comes from the miseries of the Revolution, when the Founding generation had their demands for equality returned with a volley of gunfire. Almost two and a half centuries later, Senator Cotton shows why that right is immortal, by becoming the tyranny we were built to reject.

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Tom Cotton Clearly Hates The First Amendment - Betches

The Supreme Court allowed a police officers lawsuit against a Black Lives Matter leader to move forward Monday.

In a brief order, the justices turned away activist DeRay Mckessons First Amendment appeal, meaning he must face the lawsuit brought by the anonymous officer who was injured during a 2016 protest.

Days after police fatally shot Alton Sterling in Baton Rouge, La., Mckesson organized a protest at which demonstrators blocked a highway outside a local police station. 

As police cleared the roadway, the officer, identified as John Doe, was hit with a rock-like object and suffered brain trauma, among other injuries, court filings show.

Mckesson did not throw the object, and it is undisputed that he never authorized the violence. But the officer claims that Mckessons leadership at the event still makes him liable for the unidentified culprits actions.

Its not the first time the justices have confronted the case. In 2020, the Supreme Court in an unsigned decision called the First Amendment issue undeniably important, but the justices sent the case back to first get clarity on whether state law would allow the officer to seek damages in the first place. 

Louisianas top court eventually responded that it would, and the 5th U.S. Circuit Court of Appeals then issued a ruling rejecting Mckessons First Amendment defense and allowing the lawsuit to proceed closer to trial.

Mckesson then brought his First Amendment claim back to the high court. But in a brief, unsigned order, as is typical, the Supreme Court refused to review that 5th Circuit ruling.

It is unfathomable under this Courts First Amendment jurisprudence that a State would hold a protest leader liable in damages for a third partys independent conduct that the leader himself neither incited, directed, authorized, nor ratified, attorneys at the American Civil Liberties Union, which represents Mckesson, wrote in their petition.

The case largely rested on the relevance of a 1982 Supreme Court decision that found the NAACP could not be sued for supporting a local boycott of white merchants during the Civil Rights Movement that at times turned violent.

Mckesson argues that the precedent forecloses the lawsuit against him.

The anonymous officer, however, distinguishes his lawsuit by arguing that Mckesson unlike the NAACP engaged in illegal activity by organizing a protest to block a roadway. The injuries were a foreseeable consequence of that allegedly illegal activity, the officer claims.

There is nothing un-American or unconstitutional about chilling speech designed specifically and effectively to engage police officers, where time after time the time, the place and manner of the speech has resulted in looting, property destruction, business closures, personal injury, economic loss, bystander and police injury, the anonymous police officers attorney wrote in court papers.

The time, place and manner of delivering First Amended protected speech matters.

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Supreme Court allows police officers suit to move forward against Black Lives Matter leader - The Hill

1. Hamas leader to visit Turkey for talks with Erdogan  Reuters
2. Erdogan to host Hamas chief Haniyeh in Turkey this weekend  The Times of Israel
3. Hamas Leader Haniyeh Set To Meet Turkish President Erdogan - I24NEWS  i24NEWS

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Hamas leader to visit Turkey for talks with Erdogan - Reuters

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