The Supreme Court wiped away a lower court opinion related to Black Lives Matter protests that critics argued would chill the speech rights of demonstrators and dismantle civil rights era precedent that safeguards the First Amendments’ right to protest.
The lower court allowed a Louisiana police officer to move forward with lawsuit to hold the organizer of a Black Lives Matter protest, DeRay McKesson, accountable for injuries the officer sustained in 2016 when he was hit by a heavy object. McKesson himself did not hurl the object; the person who did is still unidentified.
In an unsigned order, the justices sent the case back down to the lower courts to further review Louisiana law holding that before getting to important constitutional questions, more guidance from state courts is necessary.
Justice Amy Coney Barrett did not participate in the decision, the Supreme Court’s public information officer said, because she was busy preparing for oral arguments. Justice Clarence Thomas dissented.
The officer from the Baton Rouge Police Department, who is using a pseudonym, did not attempt to sue the still unidentified rock thrower for damages, but instead, Mckesson, the organizer of the event. The officer suffered from a brain injury, loss of teeth, and a head injury.
The case explores the reach of the First Amendment when it comes to civil rights protests and it comes as the country is reeling from renewed demonstrations after the death of George Floyd in Minnesota.
A federal appeals court allowed the suit to go forward in a decision that stunned civil liberties communities who argued that if the opinion is left on the books it would chill the speech rights of protesters and dismantle civil rights era precedent that safeguard’s the First Amendment’s right to protest. The Supreme Court has held that lawful protestors cannot be held liable when someone within their ranks commits unlawful activity.
“The Supreme Court has long recognized that peaceful protesters cannot be held liable for the unintended, unlawful actions of others,” said American Civil Liberties Union National Legal Director David Cole, who is representing McKesson. “If the law had allowed anyone to sue leaders of social justice movements over the violent actions of others, there would have been no Civil Rights Movement. The lower court’s ruling is a threat to the First Amendment rights of millions of Americans.”
Lawyers for the officer said that Supreme Court precedent may protect those lawfully protesting from lawsuits, but it does not protect those who may have authorized or directed unlawful activity. Lawyers for the officer argued that McKesson “planned and led” an unlawful protest.
“The First Amendment does not condone physical violence,” a group of First Amendment lawyers represented by Acting Solicitor General Walter Dellinger told the court in support of McKesson. Dellinger argued that while the Constitution does not excuse the attacker’s “criminal, tortious and morally indefensible conduct,” it does protect the organizer who “neither committed nor incited” the illegal activity.
“What is at stake here is not the officer’s right to seek redress for his injuries, but the First Amendment rights of organizers to use protest to express political and social views,” Dellinger wrote.