WASHINGTON—Don’t try leading a mass protest for civil rights, worker rights, or anything else in the Deep South states of Texas, Louisiana, and Mississippi. You could wind up arrested and broke, even if you didn’t do a violent thing or urge violence. And that prospect ends mass protests before they even occur.
The U.S. Supreme Court assaulted and ditched key parts of the Constitution once again in an incredible and unexpected ruling on April 15. In those three states, it holds mass protest leaders responsible if somebody in the following crowd—it doesn’t matter who—throws a rock or breaks into a store causing personal or property damage.
The court’s reasoning in Doe v Mckesson: Demonstration and protest leaders are held responsible for the acts of their followers, even if the leader specifically told everyone to be peaceful and non-violent. But if an anonymous follower sets violence off, the leader gets punished, the Supreme Court said.
The practical effect is to chill the rights of people to peaceably protest in those three Deep South states, all covered by the New Orleans-based Fifth U.S. Circuit Court of Appeals—a court stuffed with Donald Trump-named judges, reflecting white nationalist loathing of African-Americans. The states, also packed with white supremacist Trumpite lawmakers, are particularly anxious to curb any protests by African Americans.
And in this case, those circuit judges wanted to punish the leader of Black Lives Matter protests in Louisiana, DeRay Mckesson. And doing so by backing the unnamed cop “John Doe” also continues the long-running Deep Southern hatred for African-Americans who stand up for their rights.
Penalizing protest leaders for the acts of their followers violates the leaders’ First Amendment free speech rights, said the only justice to comment on the case, Sonia Sotomayor. Without comment, the entire court sent the seven-year-old dispute back down to Louisiana for trial on the facts and damages.
The High Court said Mckesson “could be liable under a negligence theory for serious injuries sustained by a police officer when an unidentified individual attending that protest threw a hard object that hit the officer in the face,” Justice Sotomayor said.
“In so holding, the Fifth Circuit rejected Mckesson’s argument that the First Amendment” and its right of free speech “barred his liability in these circumstances absent a showing of intent to incite violence.”
“A protest leader’s simple negligence is far too low a threshold for imposing liability for a third party’s violence,” Sotomayor said, quoting the sole dissenter in the Fifth Circuit’s ruling, Judge Don Willett.
Would have enfeebled the civil rights movement
“A negligence theory of liability for protest leaders…would have enfeebled America’s street-blocking civil rights movement, imposing ruinous financial liability against citizens for exercising core First Amendment freedoms,” added Justice Sotomayor.
Think, said Judge Willett, of Dr. Martin Luther King Jr., who went to Memphis to march with striking sanitation workers seeking to organize with AFSCME.
The workers weren’t violent, Judge Willett wrote. He didn’t have to spell out who was: White nationalist James Earl Ray, who assassinated the famed civil rights leader.
“Dr. King’s last protest march was in March 1968, in support of striking Memphis sanitation workers. It was a prelude to his assassination a week later, the day after his ‘I’ve Been to the Mountaintop’ speech,” Judge Willett reminded his colleagues.
“Dr. King’s hallmark was nonviolent protest, but as he led marchers down Beale Street, some young men began breaking storefront windows. The police moved in, and violence erupted, harming peaceful demonstrators and youthful looters alike. Had Dr. King been sued, either by injured police or injured protestors, I cannot fathom that the Constitution he praised as ‘magnificent’—a promissory note to which every American was to fall heir’—would countenance his personal liability” for damages.
The Fifth Circuit’s ruling in the Mckesson case ruling covers only those three states, which have some of the worst race relations in the U.S. The “Doe” in the case is an unnamed police officer who was hit and injured by a thrown rock during a BLM protest in the state capitol of Baton Rouge.
Judge Willett was even blunter than Justice Sotomayor, arguing against his colleagues in the New Orleans-based circuit court.
“Unquestionably, Officer Doe can sue the rock-thrower. But I disagree he can sue Mckesson as the protest leader. The [U.S.] Constitution Officer Doe swore to protect itself protects Mckesson’s rights to speak, assemble, associate, and petition…Did Mckesson stray from lawfully exercising his own rights to unlawfully exorcising Doe’s? I don’t believe he did.
“The First Amendment ‘imposes restraints’ on what (and whom) state law may punish,” the judge added. Violence and threats of violence aren’t protected.
But when the violence “occurs in the context of constitutionally protected activity”—such as a Black Lives Matter protest or a march of striking Memphis sanitation workers—“ ‘precision of regulation’ is demanded. These guardrails prevent the law from reaching” in plain English, banning, ”‘activity protected by the First Amendment.’”
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