First Amendment groups welcomed a U.S. Supreme Court decision earlier this month in a case that involved an injured Baton Rouge police officer’s liability claim in the wake of a violent Black Lives Matter demonstration.
The decision was a partial victory for DeRay Mckesson, the organizer of the demonstration that blocked a highway near Baton Rouge police headquarters in 2016. The protest followed the killing of a Black man, Alton Sterling, by police.
When officers began to arrest protesters to clear the highway, an unidentified person in the crowd threw a rocklike object that struck the police officer, leading to loss of teeth and a brain injury. The unnamed officer sued Mckesson, arguing that he was liable for the officer’s injuries since Mckesson directed the illegal obstruction of a highway and was aware of possible consequences.
The Supreme Court overturned a decision by the Fifth Circuit Court of Appeals favoring the officer’s position, finding fault with the appeals court’s theory of personal liability in such situations.
“We think that the Fifth Circuit’s interpretation of state law is too uncertain a premise on which to address the question presented,” the high court stated in its Nov. 2 opinion. “The constitutional issue, though undeniably important, is implicated only if Louisiana law permits recovery under these circumstances in the first place.”
The court then suggested the Louisiana Supreme Court could provide guidance on how state law bears on the litigation and remanded the case to that court.
The Louisiana branch of the American Civil Liberties Union said the Fifth Circuit ruling could have had dire consequences on free expression cases had it been allowed to stand, adding that it would have deconstructed long-held safeguards that protect Americans’ right to protest.
Ken Paulson, director of the Free Speech Center at Middle Tennessee State University, which works with Louisiana State University on free speech issues, echoed that position in an email to the Louisiana Record.
“If every protest organizer were to be held liable for the conduct of everyone who participates, few would have the courage to assemble large groups to challenge injustice,” Paulson said. “You wouldn’t generate much of an impact if your march only consisted of family and friends.”
In addition, the U.S. Supreme Court’s decision strengthened the right of people to assemble, which is an important means for the public to right a wrong, he said.
“Presumably, any further litigation would require direct fault or negligence by the organizer, which is a significantly higher bar,” Paulson said.
Attorney David Goldberg, Mckesson’s lead attorney, also said the ruling vindicated people’s right to petition their government. “It is a significant defeat for those who seek to use the threat of damages lawsuits to silence the voices of people of modest means who participate in our government by taking to the streets to have their voices heard,” Goldberg said in a prepared statement.