Protect The 1st Foundation
  • About
    • Leadership
  • Issues
  • Scorecards
  • News
  • Take Action
    • Educational Choice for Children Act
    • PRESS Act
    • Save Oak Flat Act
  • DONATE
  • About
    • Leadership
  • Issues
  • Scorecards
  • News
  • Take Action
    • Educational Choice for Children Act
    • PRESS Act
    • Save Oak Flat Act
  • DONATE
Picture

SCOTUS Declines to Address Louisiana’s Low Liability Threshold at Protests

4/30/2024

 
Picture
​Can a protest organizer be held civilly liable for the unlawful actions of another at a demonstration? That’s the question at issue in McKesson v. Doe, one with significant implications for protected speech.
 
The case’s circuitous journey through the courts started in 2016, when an anonymous Louisiana law enforcement officer was struck with a “rock-like” object hurled by an unknown person at a Black Lives Matter protest. This was a despicable act of violence that was in no sense expressive speech. Those who commit such acts of violence must be prosecuted to the fullest extent of the law. But what is the liability of those who organize a peaceful protest that is infiltrated by the violent?
 
Plaintiff John Doe brought suit against activist DeRay McKesson, who organized the event, on the theory that McKesson’s role as the event organizer encompassed a duty to protect everyone present. In 2020, the U.S. Supreme Court vacated the Fifth Circuit’s decision against McKesson, which upheld a novel theory from Doe of “negligent protest.” The Court remanded the case to the Louisiana Supreme Court, instructing it to analyze whether state law actually provides for negligence liability in such situations. This decision seems to ignore precedent in NAACP v. Claiborne Hardware, which held that “[c]ivil liability may not be imposed merely because an individual belonged to a group, some members of which committed acts of violence.”
 
The Louisiana Supreme Court ultimately reached the conclusion that state tort law does, in fact, provide Doe with a cause of action. As a result, the Fifth Circuit reinstated its ruling and the case returned again to the highest court in the land.
 
Notably, the Supreme Court ruled in the intervening years in Counterman v. Colorado that a subjective, mens rea standard (meaning specific intent, not just negligence) is required for a finding of liability in lawsuits that seek to punish speech. Justice Kagan wrote that the “First Amendment precludes punishment, whether civil or criminal, unless the speaker’s words were ‘intended’ (not just likely) to produce imminent disorder.”
 
Accordingly, in an order rejecting certiorari in the McKesson case earlier this month, Justice Sotomayor strongly implied that the Court has already settled this question of law. She wrote, “Although the Fifth Circuit did not have the benefit of this Court’s recent decision in Counterman when it issued its opinion, the lower courts now do. I expect them to give full and fair consideration to arguments regarding Counterman’s impact in any future proceedings in this case.”
 
The Supreme Court clearly wants to allow some deference to state law. However, it seems entirely reasonable to require a showing of intent in situations involving the random outbreak of violence at protests. Failure to do so could have a significant, chilling effect on political speech. If civil liability can be assigned for merely organizing an event, then we’re likely to see a lot less civil discourse in the future.
 
Journalists have similar concerns. As the Reporters Committee for Freedom of the Press explains, protecting against liability for the “uncoordinated,” lawless actions of others “is a critical safeguard for reporters who attend tumultuous events where violence may break out — political rallies, say, or mass demonstrations — in order to bring the public the news.” 
 
It remains possible the Fifth Circuit may reevaluate its ruing in light of Counterman, but it’s disappointing that the Supreme Court declined to weigh-in in a meaningful way. When states start imposing low liability thresholds on protestors, it jeopardizes First Amendment protections for all of us.

Comments are closed.

    Archives

    May 2025
    April 2025
    March 2025
    February 2025
    January 2025
    December 2024
    November 2024
    October 2024
    September 2024
    August 2024
    July 2024
    June 2024
    May 2024
    April 2024
    March 2024
    February 2024
    January 2024
    December 2023
    November 2023
    October 2023
    September 2023
    August 2023
    July 2023
    June 2023
    May 2023
    April 2023
    March 2023
    February 2023
    January 2023
    December 2022
    November 2022
    October 2022
    September 2022
    August 2022
    July 2022
    June 2022
    May 2022
    April 2022
    March 2022
    February 2022
    January 2022
    December 2021
    November 2021
    October 2021
    September 2021
    August 2021
    July 2021
    June 2021
    May 2021
    April 2021
    March 2021
    February 2021
    January 2021

    Categories

    All
    2022 Year In Review
    2023 Year In Review
    2024 Year In Review
    Amicus Briefs
    Analysis
    Book Banning
    Campus Speech
    Censorship
    Congress
    Court Hearings
    Donor Privacy
    Due Process
    First Amendment
    First Amendment Online
    Freedom Of Press
    Freedom Of Religion
    Freedom Of Speech
    Government Transparency
    In The Media
    Journalism
    Law Enforcement
    Legal
    Legislation
    Legislative Agenda
    Letters To Congress
    Motions
    News
    Online Speech
    Opinion
    Parental Rights
    PRESS Act
    PT1 Amicus Briefs
    Save Oak Flat
    School Choice
    SCOTUS
    Section 230
    Speaking Of The First Amendment
    Supreme Court

    RSS Feed

we  the  people.

LET  YOUR  VOICE  BE  HEARD:


ABOUT

Who We Are

​Leadership

ISSUES

1st Amendment

TAKE ACTION

Donate

​Contact Us
® Copyright 2024 Protect The 1st Foundation