SCOTUS Vacates Decision Holding Protest Organizer Liable for Injuries Caused by Unidentified Attendees in First Amendment Case

November 2, 2020 11:30 am

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NEW YORK — The U.S. Supreme Court today vacated a lower court ruling that the American Civil Liberties Union had appealed in a First Amendment case about a Black Lives Matter protest. If the lower court decision had been left standing, it would have dismantled civil rights era Supreme Court precedent safeguarding the First Amendment right to protest. The court directed that the lower court ask the Louisiana Supreme Court to address whether the protest organizer could be held liable for injuries an officer sustained during a protest under state law.

The petition decided on today was filed on behalf of DeRay Mckesson, a prominent civil rights activist and Black Lives Matter movement organizer. It arises out of a lawsuit, Doe v. Mckesson, in which a police officer is seeking damages for being injured by an object thrown during a protest in Baton Rouge, Louisiana on July 9, 2016. The police officer did not sue the person who threw the object, but instead sued Mckesson, an alleged leader of the protest, which was sparked by the police killing of a Black man, Alton Sterling. The officer’s lawsuit claims Mckesson should be held legally responsible for the officer’s injuries simply because he encouraged the protest. Last August, the U.S. Court of Appeals for the Fifth Circuit ruled that the police officer’s lawsuit against Mckesson could proceed, even though Mckesson was not alleged to have incited, ordered, or endorsed the rock throwing. The ACLU represents Mckesson along with David Goldberg of Donahue, Goldberg, Weaver, & Littleton.

Below is comment from:

DeRay Mckesson, plaintiff, organizer and activist: “I’ve been fighting this case for four years. Today’s decision recognizes that holding me liable for organizing a protest because an unidentifiable person threw a rock raises First Amendment concerns. I’m gratified that the Supreme Court vacated the ruling below, but amazingly, the fight is not over.”

Vera Eidelman, staff attorney with the ACLU Speech, Privacy and Technology Project: “As millions of Americans across the country have shown in recent months since the police killing of George Floyd, the right to take to the streets and protest injustice and police brutality is essential to protecting our democracy. Under the First Amendment, protestors cannot be held liable for the unlawful acts of others that they did not direct, order, or incite simply because they were at the same protest. We are gratified the Supreme Court has recognized there are important First Amendment issues at stake and has asked the state courts to review whether their law even permits such a suit. We look forward to a ruling reaffirming that the fundamental right to protest cannot be attacked in this way.”

David Goldberg, counsel of record on Mckesson’s legal team and attorney with Donahue, Goldberg, Weave & Littleton, LLP: “Today’s action by the Supreme Court represents an important step in vindicating the right to protest—the rights of all Americans to speak, assemble, and petition their government. And it is a significant defeat for those who seek to use the threat of damages lawsuits to silence the voices of people of modest means who participate in our government by taking to the streets to have their voices heard. We are gratified that the Supreme Court has vacated the Fifth Circuit’s dangerous and destabilizing decision and look forward to defending these rights before the Louisiana Supreme Court.”

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