SCOTUS Misses a Chance To Protect Peaceful Protesters
In his last protest march, Martin Luther King Jr. led a parade of demonstrators down Beale Street in Memphis, lending his support to striking sanitation workers. After a few young black men started breaking storefront windows, the indiscriminate police response killed one suspected looter and injured dozens of protesters.
Under a legal theory blessed by the U.S. Court of Appeals for the 5th Circuit, King could have been held liable for the unanticipated harm that ensued from that March 1968 protest, even though he neither directed nor advocated vandalism or violence. On Monday, the U.S. Supreme Court declined to review that decision, which threatens to chill the exercise of First Amendment rights by exposing protest leaders to crushing civil liability based on conduct beyond their control.
The case involves a lawsuit that blames Black Lives Matter leader DeRay Mckesson for the injuries that a police officer suffered during a 2016 demonstration in Baton Rouge after someone hurled “a piece of concrete or a similar rock-like object” that struck him in the head. Last June, a divided 5th Circuit panel allowed that lawsuit to proceed on the theory that Mckesson “negligently” organized a protest on the street outside police headquarters when it was “reasonably foreseeable for the police to respond, and violence to ensue.”
That ruling flies in the face of First Amendment principles that the Supreme Court reaffirmed less than two weeks later. In Counterman v. Colorado, which involved a man who had sent hundreds of alarming Facebook messages to a local musician, the Court held that mere negligence was not enough to hold him criminally liable for “true threats.”
In this context, Justice Elena Kagan said in the majority opinion, the appropriate standard is recklessness, meaning “the defendant consciously disregarded a substantial risk that his communications would be viewed as threatening violence.” That more demanding standard is necessary
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