DeRay Mckesson

DeRay Mckesson, photographed in New York City.

A lawsuit against prominent activist DeRay Mckesson threatens to dismantle U.S. Supreme Court precedent from the civil rights era that safeguards the right to protest, according to the American Civil Liberties Union.

On Friday, December 6, the ACLU asked the U.S. Supreme Court to review the case and overturn the Court of Appeals’ ruling against Mckesson and in favor of a Baton Rouge police officer.

On July 9, 2016, Mckesson went to Baton Rouge to celebrate the life of Alton Sterling, who was shot and killed by two on-duty police officers four days before, and to demand accountability during a protest. Local organizers had asked him to come to give advice and help spread awareness through his social media network, he said. 

“I got arrested very quickly that night,” Mckesson said in an ACLU video about the case. “I stayed in police custody for about 17 hours, and one of the things that I realized when I got out was that I had been sued by a Baton Rouge police officer.”

Mckesson found out that a police officer had allegedly been struck by a rock during the protest and was suing him for “inciting violence,” in the lawsuit, Doe v. Mckesson.

“I have no clue when this rock was apparently thrown at an officer,” Mckesson said, “but I did not throw a rock and I certainly didn’t remember any moment where an officer said that he got hurt.”

The officer did not allege that Mckesson threw the rock but that Mckesson is responsible for the injuries simply because he encouraged the protest.

Even though the case was originally dismissed, the Fifth Circuit Court of Appeals sided with the police officer, claiming Mckesson’s “negligent actions were the cause of Officer Doe’s injuries.”

The Court of Appeals ruled, “Mckesson is liable in negligence for organizing and leading the Baton Rouge demonstration.”

The question at the heart of this case is whether or not Mckesson can be held personally liable for the alleged violent actions of someone else, said Ben Wizner, director of the ACLU Speech, Privacy and Technology Project.

“This is an incredibly important First Amendment case,” Wizner said. “When I go to a protest that has hundreds and thousands of people, I can’t possibly know what someone else in that protest might decide to do. I can’t even know if that person shares my beliefs – perhaps he was sent undercover by a government agent or a movement that opposes what we’re doing.”

The Court of Appeals ruling essentially said that organizers could be held liable because they ignored a “foreseeable risk of violence” occurring between protestors and police by holding the demonstration.

“By that standard, I really think that every moment for social change in this country is jeopardized,” Wizner said. 

Historically, peaceful civil rights demonstrations ended up in violent interactions with police officers, Wizner said, and some of those were a result of the FBI and J. Edgar Hoover sending in agent provocateurs to discredit the movement.

“And if the law had allowed anybody to sue the leaders of the Civil Rights Movement for damages that were not caused by them personally, those movements would have been bankrupt before they could have achieved any kind of social change. And that’s what is at stake here.”

In 1982, the U.S. Supreme Court ruled that protestors were not liable in damages for the consequences of their nonviolent activity and were protected under the “highest rung of the hierarchy of First Amendment values.” The case, NAACP v. Claiborne Hardware Co., dated back to a 1968 boycott in Mississippi. It has been cited repeatedly, including to dismiss a lawsuit against then-candidate Donald Trump for violent acts committed at a campaign rally and to challenge efforts to stifle Keystone XL pipeline protests.

“The goal of lawsuits like these is to prevent people from showing up at a protest out of the fear that they might be held responsible if anything happens,” said Mckesson.

“If this precedent lasts, it could make organizers all across the country responsible for all types of things they have no control over, such as random people coming into a protest and causing problems. We can’t let that happen.”

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