The Supreme Court Does Not Care About Your Right to Protest

Protesters outside of the Supreme Court of the United States in May 2022. Photo from Frypie, CC BY-SA 4.0 via Wikimedia Commons

Once again, the Supreme Court of the United States has made a decision that puts every citizen in jeopardy: they refused to hear a case about protecting our right to protest.

Over the past decade and a half, it’s felt as if protesting and demonstrations have become a weekly - and sometimes daily - occurrence in the U.S., from the Occupy Wall Street Movement in the early 2010s to the beginning of the Black Lives Matter Movement in 2013, The March for Our Lives (2018), and the current pro-Palestine protests happening across the country.

These protests and movements can occur and stir conversation because of the fundamental right to protest that we, the people of the U.S., were guaranteed when the Constitution and Bill of Rights were ratified.

Since the current Supreme Court bench began disregarding decades, if not centuries, of precedent, it’s as if they can’t be bothered to protect us, especially since their recent denial of a case.

On April 15, 2024, the Supreme Court denied a petition for a writ of certiorari, defined by the United States Courts as “a request that the Supreme Court order a lower court to send up the record of the case for review,” from the counsel of DeRay McKesson, a civil rights activist, co-founder of the police reform campaign “Campaign Zero” and prominent leader of the BLM Movement. 

The petition was McKesson’s latest attempt to question the constitutionality of the lawsuit first brought against him in 2016 by an unnamed police officer, referred to in the case as “John Doe,” who is said to have been injured after a protestor ‘threw a “rock-like” object during the protest and hit him’ at the BLM protest in Baton Rouge that occurred on Nov. 7, 2016, as reported in the case summary released by the American Civil Liberties Union.

The official complaint made by the plaintiff, John Doe, was that the defendant, McKesson, “knew or should have known that the physical contact and riot and demonstration that they staged would become violent as other similar riots had become violent and thus [defendants] knew or should have know[n] that violence would result especially after they began assaulting police, they knew or should have known their actions could cause and/or lead to serious personal injury.”

On Sept. 28, 2017, the District Court of the Middle District of Louisiana ruled to dismiss the complaint with prejudice (i.e., permanently dismiss) at first, with the reasoning being that the plaintiff “has failed, however, to state a plausible claim for relief against an individual or entity that both can be sued and falls within the precisely tailored category of persons that may be held liable for his injuries, which he allegedly suffered during activity that was otherwise constitutionally protected.”

If this case was intended to be permanently dismissed, why is it still active seven years later? Simply put, Doe found a loophole and appealed to the Court of Appeals in the Fifth Circuit. The loophole is that McKesson, as the organizer of the protest, led the group to illegally occupy the highway stretch they were demonstrating on. Due to what Doe and the court’s initial opinion from the appeal deem negligent conduct from McKesson, Doe consequently suffered injuries. 

McKesson then, as noted in the same case summary by the ACLU, “sought Supreme Court review” in 2020, who then “vacated the Fifth Circuit’s opinion and directed it to ask the Louisiana Supreme Court to address whether a protest organizer could be held liable for injuries an officer sustains during a protest under Louisiana state law.”

“While recognizing that ‘the constitutional issue’ presented by the case is undeniably important,’ the Court determined that the case might be ‘greatly simplified’ by guidance from the Louisiana Supreme Court on the meaning of Louisiana law,” the ACLU summarized.

The Louisiana Supreme Court eventually ruled in 2022 that this issue was permissible under state law and the case could continue.

So what does it mean now that the organizer of a protest can be sued for actions taken by individuals in the group that they may not have been aware of? And, in this case of McKesson’s petition, does “the First Amendment and this Court’s decision…foreclose a state law negligence action making a leader of a protest demonstration personally liable in damages for injuries inflicted by an unidentified person’s violent act, when it is undisputed that the leader neither authorized, directed, nor ratified the perpetrator’s act, nor engaged in or intended violence of any kind?”

The First Amendment clearly states that we, as the people of this country, have a fundamental right to organize and protest that cannot be taken away from us. This ongoing lawsuit, which should have stopped with the District Court of the Middle District of Louisiana, is just another example of recent efforts by powerful institutions and people to silence those who have no other way of making their voices heard in a way that matters and can evoke change; however little that may be.

The Supreme Court’s decision to deny McKesson a writ of certiorari only shows the public that they want no part in cases that may have the ability to protect protesting rights. If the ones being sued for the misbehavior of one person are those organizing, then where does that leave us for the future?

How are activists who have demonstrated and protested peacefully meant to feel safe and protected when law enforcement and the government are actively out to get them, especially when these activists are advocating for minority groups or the de-escalation of conflict?

If we as a country can’t protect those who speak up against injustice, then who can when the government is moving in a direction where it won’t?

It’s time for the government to take a step back, reevaluate, and actually align with the Founding Fathers’ idea of protected protest and organization.