Right to Mass Protest Jeopardized Amid Supreme Court Inaction

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WASHINGTON – The US Supreme Court has decided not to hear a case stemming from a Black Lives Matter (BLM) chapter in Baton Rouge, effectively upholding a lower court decision that adds limitations to the right to mass protest in Louisiana, Mississippi, and Texas. 

It all began with a lawsuit against Black Lives Matter (BLM) following a protest in Baton Rouge. Demonstrators took to the streets after a Baton Rouge officer shot and killed 37-year-old Alton Sterling. 

BLM organizers issued a call to action, and protestors arrived outside the police department. As tensions grew, the attendees were led onto a local highway, which is a crime in Louisiana punishable by up to six months in prison. 

One protestor began throwing objects at police, eventually wounding an officer. The officer suffered injuries to his face, jaw, teeth, and head. Authorities have not been able to identify the individual who cast the object. However, the police seemingly targeted the only person they could name. 

Officer John Doe v. McKesson

The lawsuit named local activist Deray McKesson as the main defendant. McKesson was working with the local BLM chapter responsible for organizing the 2016 protest. The plaintiff remains anonymous, identified simply as “Officer John Doe.” The unnamed officer then brought legal action against McKesson and BLM, claiming they should be held responsible for the actions of a protest attendee.

Along its way to the Supreme Court, several civil rights groups put forth efforts in McKesson’s favor. The NAACP, Institute for Free Speech, and Howard University Human and Civil Rights Clinic all filed briefs to persuade the court’s decision. 

In January 2024, the Fifth Circuit Court of Appeals heard the case. Initially, the court dismissed the claims submitted by Doe. Judges stated that because McKesson didn’t directly instruct the protestor to injure an officer, the claim held no precedent. Then, that decision was reversed. 

It was then determined that the First Amendment, which protects the right to mass protest, does not protect McKesson from being held liable for injuries. 

McKesson continued to dispute the case until reaching the highest court in the land. Because the Supreme Court took no action, it upheld the lower court decision. 

Protests of America’s Past

Protesting is something innate to the American people. The 1773 Boston Tea Party stands out as one of the earliest mass protest actions.

Once the US had declared its independence from Britain and emerged into the modern day, the modes of protest shifted. The 1960s saw the beginning of several movements. Civil Rights, Women’s Rights, Environmentalism, and Anti-War Movements led to no shortage of causes. 

Instead of taxation boycotts, these new-age protests organized sit-ins, marches, and demonstrations. 

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As the internet emerged, Americans were able to connect in ways previously unimaginable. News of unjust actions spread like wildfire, and millions of people can take action in a matter of seconds. 

The Future of Protest

Despite the Civil Rights and Women’s Movements working to create a more inclusive society, efforts have persisted to nullify previous accomplishments. Issues such as the continued police killings of unarmed Black men and abolishing the right to a safe and legal abortion have only added to the tensions of our time. 

After Donald Trump took office, women gathered to protest the election of a president known for his history of womanizing. Then, in 2020, hundreds of thousands of Americans publicly protested the police killings of George Floyd and Breonna Taylor. 

The right to mass protest will remain. However, the three states represented by the Fifth Circuit may see shifts in how they conduct such events. Organizers who lead a protest can be held liable if someone is injured during the demonstration. It’s somewhat ludicrous to expect an organizer to know and mitigate the actions of every single individual in attendance, especially if the numbers are in the hundreds or thousands.

To take a page out of the police handbook, one bad apple doesn’t spoil the whole bunch.