By Alexis Taylor
Special to the AFRO

As police brutality protests continue across the country this month, the Supreme Court of the United States made a major move in protecting protest organizers and participants from liability for injuries and property damage.

In a 7-1 decision the court sent the case, DeRay Mckesson v. John Doe, back to the Louisiana lower court for closer consideration. Justice Clarence Thomas was the lone dissenter with no explanation, and Justice Amy Coney Barrett did not participate.

“I’m happy that the court did not move forward with the rationale that would have allowed for the criminalization of any organizer of a protest,” said Mckesson. “Could you imagine protestors and organizers were held liable any time property was damaged or something happened at a protest?”

Mckesson said that if found liable under Louisiana law, the case “will be used as a way to criminalize and discourage protestors, organizers, and leaders across the country.”

The case began with protests over the killing of Alton Sterling, shot dead by Baton Rouge Police Department officers in 2016.

Mckesson organized a peaceful protest, but landed in court when an unidentified culprit threw a “piece of concrete or a similar rock-like object” at an officer, who suffered from a “loss of teeth and brain trauma.” That officer then sued Black Lives Matter, Mckesson, and other parties involved in organizing the protest.

In 2017 U.S. District Court Judge Brian Jackson ruled that “‘Black Lives Matter,’ as a social movement, cannot be sued” and the case was thrown out. However, the 5th U.S. Circuit Court of Appeals reversed the ruling and found that Mckesson could be held liable given that he unlawfully blocked a highway during the protest, which would undoubtedly lead to police action.

“The court of appeals held that the leader of a demonstration can be held responsible for violent acts committed by those in the demonstration- even if the leader did not incite or encourage the violence,” explained Michael Meyerson, a law professor with the University of Baltimore. “That is a serious threat to the 1st amendment.”

Meyerson said a decision like that of the 5th U.S. Circuit Court of Appeals in 2019 would have gutted the Civil Rights Movement of the 60s.

“You can just imagine what the south would have done to Martin Luther King during his demonstrations- many of which were illegal, meaning they didn’t have a license,” said Meyerson. “The idea that they could have contributed any type of wrongdoing to him when he did nothing to incite violence is terrifying.” 

“They could have destroyed King’s ability to march and that’s no different from the marches of Black Lives Matter marches.” 

Meyerson told the AFRO that “for those who have historically been without power, our only protection is an American census for freedom of speech.” 

Mckesson’s case was heard in the highest court of the land with help from the American Civil Liberties Union, a staunch supporter of first amendment rights.

“People should know if they go to a protest- even if they are there to express different views- they can’t be liable for what other people do unless they direct them,” said Vera Eidelman, staff attorney with the ACLU’s Speech, Privacy and Technology project. “Speaking loudly, vigorously and even rudely.”

“We are protected in meeting with, gathering with, and talking to others who share our views- and even those who don’t.”

Eidelman told the AFRO that she finds comfort in the fact that the case went all the way to the Supreme Court, because the logic of the 5th U.S. Circuit Court of Appeals “was so dangerous for protestors.” 

“We worried that people would be dissuaded from going out.”

Eidelman said that because there is a “serious cost to being a defendant in a case like this” it is important to fight vigorously so first amendment critics realize “It’s not worth it or even allowable to file lawsuits like this.”

Eidelman said that the lower courts of Louisiana must now review state law and how it applies to the first amendment. 

“We are waiting and filing briefs before the Supreme Court in Louisiana,” said Eidelman.

“The case continues.”