If you reside in Texas, Louisiana, or Mississippi and have plans to protest any form of general injustice, you might want to rethink your decision unless you have significant insurance. This reevaluation is due to a recent dent in the armor of the First Amendment. You can find more details on this development in Reuters’ coverage.
The U.S. Supreme Court recently declined to hear DeRay Mckesson’s appeal, thereby permitting a lawsuit against the Black Lives Matter activist. This lawsuit by the Baton Rouge police officer, John Ford, is based on injuries he sustained during a protest in 2016. Ford blames Mckesson for negligence after being hit by a rock during the protest, which was triggered by Alton Sterling’s fatal police shooting.
Based on a concise assessment from the SCOTUSBlog, the key issue at hand is whether the First Amendment and the decision in NAACP v. Claiborne Hardware Co. precludes a state law negligence action that makes a protest leader personally liable in damages for injuries inflicted by an unidentified person’s violent act. This question is considered when the leader neither authorized, directed, or ratified the perpetrator’s act, nor engaged in or intended any form of violence.
The freedom of speech and right to assemble have usually not been overshadowed by vicarious liability suits in the past. However, the reasoning of the 5th Circuit court risks making this a new norm. According to a dissent (as shared by Vox), this decision could make protest organizers liable for “the unlawful acts of counter-protesters and agitators,” essentially enabling sabotage of movements through violent actions at protests.
It’s speculated this significant restriction on free speech will eventually return to the Supreme Court. The current reality is that the decision of the 5th Circuit stands as a potentially chilling deterrent to free speech and public demonstration. As voiced by an observer, there is the probability of this ruling being notably challenged when someone from a right-leaning group incurs substantial civil liability in a violent incident at a protest.