The Supreme Court refused on April 15 to take up the appeal of radical activist DeRay Mckesson, who is being sued after a policeman was injured at a 2016 protest that Mr. Mckesson organized in Baton Rouge, Louisiana.
The Black Lives Matter leader is an advocate of political violence. For example, Mr. Mckesson espouses rioting and looting as a means of promoting so-called social justice and an uprising against the U.S. system.
The justices denied the petition for certiorari, or review, in Mckesson v. Doe. None of the justices dissented, but Justice Sonia Sotomayor filed a statement outlining her position on the case. The court did not explain its decision. At least four of the nine justices must vote to grant the petition in order for it to move forward to the oral argument stage.
The court apparently struggled with the case, taking it up at eight of the justices’ private conferences before finally rejecting the petition on April 15.
In the case, Mr. Mckesson led a protest illegally onto a highway, and a police officer was injured by a thrown rock or piece of concrete that hit his head. The assailant is unknown. The officer alleged that Mr. Mckesson was negligent under Louisiana law for failing to anticipate that the demonstration could result in violence.
The protest itself centered on the death of Alton Sterling, a black man who was shot by police as he attempted to wrest a gun away from officers.
In 2017, U.S. District Judge Brian A. Jackson, who was appointed by President Barack Obama, found that neither Mr. Mckesson nor the Black Lives Matter movement could be sued over the incident. The police officer, identified pseudonymously as John Doe, appealed, and in 2019, the U.S. Court of Appeals for the Fifth Circuit resurrected the lawsuit as to Mr. Mckesson but dismissed the claim against Black Lives Matter, finding that it wasn’t a legal entity capable of being sued.
Mr. Doe suffered brain trauma, a head injury, and the loss of teeth after an unknown assailant threw a rock or a piece of concrete at him.
The Fifth Circuit then allowed the police officer’s lawsuit against Mr. Mckesson personally to move forward.
But in November 2020, the Supreme Court sided with Mr. Mckesson in a 7–1 ruling, sending the case back to the Fifth Circuit for a second look.
Represented by the American Civil Liberties Union Foundation, Mr. Mckesson had argued that his First Amendment-protected rights of freedom of speech and assembly trumped any claim against him for leading the demonstration.
At that time, the Supreme Court didn’t rule on Mr. Doe’s claim itself.
“The question presented for our review is whether the theory of personal liability adopted by the Fifth Circuit violates the First Amendment,” the court stated.
“Mckesson contends that his role in leading the protest onto the highway, even if negligent and punishable as a misdemeanor, cannot make him personally liable for the violent act of an individual whose only association with him was attendance at the protest.”
The Supreme Court directed the lower courts to take another look at whether state law allowed the kind of claim that the policeman had brought.
But when the case returned to the Fifth Circuit, that court ruled that the officer’s lawsuit could proceed because he had stated plausible claims. The lawsuit alleged that Mr. Mckesson created an unsafe environment by assembling protesters outside of a police station, failing to do anything to prevent looting, and directing the protesters onto a public highway, which is against the law in Louisiana.
She noted that after the U.S. Supreme Court remanded the case, the Louisiana Supreme Court examined it and found that the claim could be pursued under Louisiana law. The case then returned to the Fifth Circuit, which examined the constitutional aspects of the case and reaffirmed its prior finding that Mr. Mckesson could be sued for negligence, again dismissing the argument that the activist’s behavior was shielded by the First Amendment.
The case raised an important First Amendment issue in an age when so much communication takes place online using text, a medium that lacks the nonverbal cues present in in-person communication and that sometimes makes it difficult to ascertain the intent of the speaker.
In Counterman, the Supreme Court made it clear that the First Amendment prevents the use of “an objective standard” such as negligence for punishing speech and read other incitement cases as “demanding a showing of intent,” she wrote. The court found that the First Amendment “precludes punishment [for incitement], whether civil or criminal, unless the speaker’s words were ‘intended’ (not just likely) to produce imminent disorder.”
“Although the Court determined that a less-demanding recklessness standard was sufficient to punish speech as a ‘true threat,’ it emphasized that an objective standard like negligence would violate the First Amendment,” Justice Sotomayor wrote.
She added that the Supreme Court’s decision to deny the petition “expresses no view about the merits of Mckesson’s claim.”
“Although the Fifth Circuit did not have the benefit of this Court’s recent decision in Counterman when it issued its opinion, the lower courts now do,” she wrote.
“I expect them to give full and fair consideration to arguments regarding Counterman’s impact in any future proceedings in this case.”
