Recent events support the need for the U.S. Supreme Court to grant certiorari in Mckesson v. Doe, No. 19-1108 (2020). DeRay Mckesson, a Black Lives Matter organizer, organized a protest against police brutality in Baton Rouge, Louisiana in 2016.[1] During that demonstration, a protester—unbeknownst to Mckesson at the time—threw a rock at a police officer.[2] Despite the fact that Mckesson did not perform, direct, or encourage the assault, the Fifth Circuit has allowed the police officer’s suit against Mckesson seeking damages for the injuries he incurred at the protest to proceed.[3] The action is based on the premise that Mckesson should have foreseen the possibility of violence at the protest and be held accountable for it.[4] To preserve the right to protest and assemble, the Supreme Court now needs to intercede.
Media coverage of the peaceful protests in George Floyd’s name has been frequently overshadowed by jagged discussions of destruction and rioting. But the blame for violence and illegal acts is often misattributed to organizations at the center of anti-racist activism like Black Lives Matter. Videos have surfaced showing rioters seemingly unaffiliated with the movement tagging buildings with “BLM,” looting, and engaging in violence, as well as unprovoked use by the police of gas canisters and weapons. Not only have numerous organizers of Black Lives Matter not condoned or encouraged violence or destruction, they have, in fact, condemned it. And conflating peaceful protests run by these organizers with those opportunistically engaged in destructive illegal activities is dangerous. To deny that protests have sparked numerous important changes in our country is to be ignorant about our nation’s history.[5] And to hold organizers accountable for the actions of anyone near the scene of their organized protest—even when those organizers did not condone or encourage such conduct —is to risk the right to protest that is essential to this country. The Mckesson case presents an opportunity for the Supreme Court to affirm that the right to protest is a vital part of American society, and to defend the First Amendment rather than chip away at it at a time when the country should be listening and working together.
*Supervising Attorney and Lecturing Fellow of the First Amendment Clinic at Duke University School of Law. Professor Ligon and her clinic submitted a Supreme Court amicus brief on behalf of prominent First Amendment scholars in support of DeRay Mckesson.
[1] Doe v. Mckesson, 945 F.3d 818, 823–24 (5th Cir. 2019).
[2] Id. at 823.
[3] Id. at 834.
[4] Id. at 827.
[5] See, e.g., Boston Tea Party, History (July 30, 2019), https://www.history.com/topics/american-revolution/boston-tea-party [https://perma.cc/6XH3-SHTZ] (colonists hurled chests of tea into the Boston Harbor to oppose their underrepresentation in British government in 1773); Danielle Cohen, This Day in History: The 1913 Women’s Suffrage Parade, National Archives: Obama’s White House (Mar. 3, 2016), https://obamawhitehouse.archives.gov/blog/2016/03/03/this-day-history-1913-womens-suffrage-parade [https://perma.cc/6UB7-N888] (women advocating for equal suffrage marched in Washington, D.C. to spread their message in 1914); Bell v. Maryland, 378 U.S. 226 (1964) (black students were arrested for criminal trespass for refusing to leave a restaurant in 1960 as part of the momentous sit-in demonstrations against segregation).