One of the most important First Amendment cases in decades is on the docket to be heard by the U.S. Supreme Court next month. In Mckesson v. Doe, a Louisiana cop attempted to sue DeRay Mckesson for damages. According to the cop, who is using the pseudonym Doe, he was hit by an object and injured during a protest in Baton Rouge on July 9, 2016.
The suit alleges that Mckesson failed to prevent the protester from throwing it. The suit does not claim that Mckesson, who attended the protest, threw the object. Contrary to all previous First Amendment precedents, the suit claims that the activist owes him damages because he did not prevent the unnamed protester from throwing the object.
The Supreme Court ruled in 1982 that leaders of protests could not be held liable for the actions of others unless those bringing suit can prove that the organizer incited violence or directed the violence.
This case, which is unique in its claim, was upheld in April by the U.S. 5th Circuit Court of Appeals, which ruled rather broadly that “the First Amendment does not protect violence.”
However, Judge Don R. Willett of the 5th Circuit Court reversed himself recently. He wrote, “In America, political uprisings, from peaceful picketing to lawless riots, have marked our history from the beginning—indeed, from before the beginning… The Sons of Liberty were dumping tea into Boston Harbor almost two centuries before Dr. King’s Selma-to-Montgomery march (which, of course, occupied public roadways, including the full width of the bloodied Edmund Pettus Bridge).”
Black folks have historically had to resort to non-violent protest and civil disobedience to secure and guarantee rights. Any threat to those rights would effectively stifle protest for fear of being sued if something goes awry. It is doubly alarming considering that police have been known to deploy undercover agents in an attempt to provoke violence, helping law enforcement discredit organizers while also allowing the police to justify the use of force against protesters.