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Decades-old Protections For Protesters Are In Jeopardy

Marchers in Baton Rouge protest the police shooting of Alton Sterling on July 5, 2016.
Mark Wallheiser / Getty Images

Decades-old Protections For Protesters Are In Jeopardy


Spotlights like this one provide original commentary and analysis on pressing criminal justice issues of the day. You can read them each day in our newsletter, The Daily Appeal.

“On July 5, 2016, Alton Sterling, a Black resident of Baton Rouge, Louisiana, was shot and killed by two on-duty police officers responding to an anonymous 911 call. Soon after, members of the city’s Black community took to the streets, including the area in front of Police Department headquarters, to express their anguish, celebrate Mr. Sterling’s life and humanity, and convey the need for accountability and transformative change.”

This is from the petition for certiorari presented to the Supreme Court by the American Civil Liberties Union in Doe v. McKesson. It continues:

“As with protests prompted by police violence elsewhere, one way those assembled conveyed their dismay was by insisting, to the police before them, their community, and the watching world, that ‘Black Lives Matter.’”

Alton Sterling was one of more than 200 Black men, women, and children killed by police in 2016. His death came just one day before the police killing of Philando Castile in Minnesota.

More than 100 people were arrested at the protest in Baton Rouge, most for obstructing a highway. Among them was DeRay Mckesson, the prominent Black Lives Matter activist. In an interview with the New York Times immediately after the protest and arrests, Mckesson said “the police want protesters to be too afraid to protest.”

During the protest, a police officer was seriously injured when someone threw a hard object that hit him. The person who threw the object was never identified. The officer, proceeding anonymously, decided to file a lawsuit. Its targets? The hashtag #BlackLivesMatter, Black Lives Matter, and Mckesson. Mckesson’s quote in the New York Times article published after the protest was cited in the complaint alleging that he was responsible for inciting violence.

The lawsuit was filed in federal district court, and the federal judge concluded it “bordered on the delusional,” wrote Adam Liptak of the New York Times. With respect to the first target, the judge wrote, “A hashtag is patently incapable of being sued.” Black Lives Matter was also an entity that could not be sued, he explained, describing it as “a social movement rather than an organization or entity of any sort.” Finally, the part of the lawsuit seeking damages from Mckesson was dismissed on First Amendment grounds. “Liability may not be imposed merely because an individual belonged to a group, some members of which committed acts of violence,” the judge wrote, quoting from the Supreme Court’s  landmark civil rights decision, NAACP v. Claiborne Hardware Co, issued in 1982. (The case concerned a lawsuit by white merchants after some acts of violence during an economic boycott organized by the local NAACP.)

Yet the Fifth Circuit Court of Appeals ruled that although the Black Lives Matter hashtag and movement could not be sued, McKesson could, on the grounds that he “should have known that leading the demonstrators onto a busy highway was most nearly certain to provoke a confrontation between police and the mass of demonstrators.” A full panel of the court reviewed the case and issued what was, in effect, the same decision.

Constitutional law professor Garrett Epps, who has been following the casedescribed the offensiveness of the Fifth Circuit decision: “The stakes are high, and the Fifth Circuit panel’s offense is rank. The decision was not simply lawless, but insolently so.”

In the Claiborne ruling, Justice John Paul Stevens wrote that the organizers of the boycott sought “to challenge a political and economic system that had denied them the basic rights of dignity and equality that this country had fought a Civil War to secure.” To permit lawsuits  against individuals because of the violence of others would discourage those challenges and make it easier for the government to suppress the rights of Black citizens

Now, Mckesson and the ACLU have asked the Supreme Court to review his case and the Fifth Circuit decision.

If the case were allowed to proceed, Mckesson could prevail at trial. Yet the burden of defending himself is precisely the kind of cost that would chill free speech rights. And the ability to sue protesters for consequences entirely unrelated to their actions is exactly the power of harassment that law enforcement should not be allowed to wield.

The gulf (as Epps describes it) between the Fifth Circuit’s decision and the Supreme Court’s jurisprudence and the consequences that the circuit court’s decision will have for future protests are central to the importance of this case. The point of the lawsuits against protest organizers is not hard to discern. They are part of an effort, that predates our current moment, to make organizing and activism as personally costly as possible for organizers. Even if Mckesson were to win at a trial, he would have to expend the time, energy, and resources to defend himself until then. And the prospect of having to do that is meant to discourage organizers of future protests.

As Ian Millhiser wrote in ThinkProgress, the circuit court’s opinion “offers a road map to police officers—or, really, to anyone injured by a single participant in a political movement they disagree with—to shut down those movements with litigation.”

Alanah Odoms Hebert, the head of the ACLU of Louisiana, said in a statement to The Atlantic: “The principles outlined in this decision put civil disobedience at risk. If this doctrine had existed during the civil rights movement there would not have been a civil rights movement.”

The Supreme Court’s decision in Claiborne nearly 40 years ago was reached with an understanding of the need for political organizing. As Millhiser wrote: “Opinions like Claiborne exist for a reason. They exist because wise judges understood that the price of political organizing is that sometimes people with violent motives will join a movement without the knowledge of the movement’s leaders. If those leaders can be held liable for the wrongful actions of a fringe minority, then such organizing would be too dangerous for any but the most deep-pocketed movements, and core First Amendment rights will become meaningless.”