The Unintended Consequences of Holding Protest Organizers Legally Responsible for Third-Party Actions
Protest organizers in the United States have a constitutional right to exercise their freedom of speech, expression, and assembly. However, this right comes with potential legal risks when it comes to third-party actions that result in violence or harm during protests. In recent years, this issue has come to the forefront as several high-profile cases have arisen, most notably the case of DeRay Mckesson, a Black Lives Matter organizer in Baton Rouge, Louisiana.
Background: The Case of DeRay Mckesson and the Fifth Circuit Ruling
In 2016, during a protest in Baton Rouge following the shooting of Alton Sterling, an individual at the event threw a rock that seriously injured a police officer. The anonymous Officer Doe sued Mckesson under a negligence theory, alleging that as the organizer of the event, Mckesson should have known or prevented the violent act. The Fifth Circuit Court of Appeals ruled in favor of Officer Doe, stating that protest organizers could be held liable for third-party actions under a negligence theory.
Implications: Free Speech and the First Amendment
The Fifth Circuit’s ruling has significant implications for freedom of speech and the First Amendment. As Ian Milhiser pointed out in Vox, this could potentially open the door for individuals to sabotage protest movements simply by committing violent acts at protests. This not only violates the First Amendment but also creates a chilling effect for organizers who might be hesitant to exercise their constitutional rights due to potential financial ruin from lawsuits.
The Supreme Court’s Position: Counterman v. Colorado and Justice Sotomayor’s Dissent
In the wake of the Fifth Circuit’s decision, the Supreme Court had an opportunity to clarify its stance on this issue in the case Counterman v. Colorado. In a dissenting opinion, Justice Sonia Sotomayor noted that the First Amendment precludes punishment for incitement unless the speaker’s words were intended to produce imminent disorder. Using a negligence standard for liability would violate the First Amendment, Sotomayor argued. Despite her dissent, the Supreme Court declined to hear Mckesson’s appeal, leaving the Fifth Circuit’s ruling in place for residents of Texas, Louisiana, and Mississippi.
Conclusion: Implications and Call to Action
The Fifth Circuit’s decision sets a dangerous precedent that threatens the right to peaceful assembly and protest in America. The implications of this ruling extend far beyond the Black Lives Matter movement, affecting any group or individual exercising their right to free speech and assembly. It is crucial that Americans demand change to ensure that no one’s constitutional rights are infringed upon due to the actions of third parties. The Supreme Court’s inaction on this issue underscores the need for continued advocacy and awareness surrounding the importance of protecting freedom of speech, expression, and assembly for all.
