With support from the University of Richmond

History News Network

History News Network puts current events into historical perspective. Subscribe to our newsletter for new perspectives on the ways history continues to resonate in the present. Explore our archive of thousands of original op-eds and curated stories from around the web. Join us to learn more about the past, now.

A Bizarre War on Protest By Republican Judges

Last week, a deeply chilling case concerning Americans’ First Amendment right to organize protests gained new life. A three-year-old, clearly erroneous decision threatens to bankrupt protest organizers across the political spectrum. But multiple courts keep passing the case among themselves like a hot potato, rather than correcting an obvious error.

At the center of this years-long saga is a conservative federal appeals court’s 2019 decision in Doe v. Mckesson. If it is allowed to stand — or worse, if it is embraced by the Supreme Court — it could potentially chill all public protest in the United States by subjecting the organizers of protests to crippling liability.

That 2019 decision, moreover, is merely the most alarming chapter in a case involving a tragically injured police officer, a prominent civil rights activist, a Trump judge who publicly recanted his own effort to restrict First Amendment rights, and at least four different courts — including the Supreme Court of the United States.


The Court held in NAACP v. Claiborne Hardware (1982) that, barring unusual circumstances that are not in play here, “civil liability may not be imposed merely because an individual belonged to a group, some members of which committed acts of violence.” When a group of people gather together in protest, each individual member of the group is responsible for their own actions. But the First Amendment neither permits the group as a whole, or the group’s leaders, to be held liable for one individual’s illegal behavior, unless the group or leader directly incited the illegal acts.

The reason why should be obvious. If protest leaders can be hauled into court — and potentially forced to pay out of their own pockets — for the actions of a single protest attendee, then no sensible person will organize a protest. The personal financial risk is simply too great. And thus the First Amendment right to protest with wither away.


With respect to Mckesson, the facts of Claiborne are, in many material respects, identical to the facts of this case. And the Claiborne decision precludes holding Mckesson liable for the actions of an unknown person who attended the Baton Rouge protest.

Claiborne involved a boycott of white businesses led by a Mississippi chapter of the NAACP. During the course of this boycott, according to the Mississippi Supreme Court, some individuals “engaged in acts of physical force and violence against the persons and property of certain customers and prospective customers” of these white businesses.

But the Supreme Court rejected the argument that either the NAACP or specific NAACP leaders who helped organize this boycott could be held liable for the violent actions of people who participated in the boycott.

Claiborne did lay out three circumstances when leaders of a protest may be held responsible for the actions of individual protesters. One is if a protest leader’s “public speeches were likely to incite lawless action,” but Doe’s lawyers do not point to any statements by Mckesson that incited anyone to throw rocks at cops. Similarly, Mckesson could be liable if he gave someone “specific instructions to carry out violent acts or threats,” but Doe does not point to any such instructions from Mckesson.

Read entire article at Vox