A federal appeals court in Louisiana decided last week that a cop can sue a protest organizer for injuries caused by another person during a demonstration, ratifying a novel legal theory that threatens to further suppress protests and First Amendment rights more broadly.The 5th U.S. Circuit Court of Appeals on June 16 allowed an officer who filed anonymously to proceed in his suit alleging negligence against Black Lives Matter activist DeRay Mckesson. The court held that it’s plausible that Mckesson is liable for the officer’s injuries because they were a foreseeable consequence of his negligent planning: Mckesson planned to block a public highway — a crime in Louisiana — which made it likely that a violent confrontation with police would ensue, according to the 5th Circuit.
The court’s ruling overlooked the fundamental legal principle that while certain categories of speech and action may be impermissible under state law, they are nonetheless protected by the U.S. Constitution, as dissenting judge Don Willett pointed out.
The appeals court, to my mind, ignores the central role of civil disobedience — demonstrations that are peaceful, and sometimes unlawful — in securing our most fundamental American rights. And it exposes advocacy groups and organizers to what one former U.S. Supreme Court justice described as the “threat of destruction by lawsuit” of our fragile rights of political association.A spokesperson for the Fifth Circuit told me the judges are unable to comment on the ruling, noting that it might soon be up for an en banc appeal before all the judges of the circuit and may be reviewed by the Supreme Court.
Attorneys representing Mckesson and the unnamed officer didn’t respond to my requests for comment.
The July 2016 demonstration took place outside the Baton Rouge Police Department, in the aftermath of the killing of Alton Sterling, a Black man who was shot to death in the city during an encounter with police. The plaintiff officer during the demonstration was struck by a rock or a similar object thrown by an unidentified protester, according to the 5th Circuit ruling.
There is no dispute that Mckesson did not encourage or call for violence and did not act in concert with the person who threw the object. And a 40-year-old precedent from the U.S. Supreme Court in NAACP v. Claiborne holds that protest leaders are constitutionally protected from liability for unlawful acts by other demonstrators as a general matter, so long as they don’t specifically direct or incite imminent violence. Importantly, the Claiborne decision involved a boycott organizer who used highly charged and inflammatory rhetoric, even threatening to break the necks of boycott breakers.