OPINION | Don't Panic About Your Right to Protest: How the Recent SCOTUS Decision Affects Us in Washington

by Michele Storms

Recent media reports on the Supreme Court's decision not to hear a protester's rights case have many concerned about our ability to organize for causes we believe in. On April 15, the Justices declined to hear Mckesson v. Doe. This case was brought by a police officer against DeRay Mckesson, a prominent civil rights activist. The officer claims Mckesson should be liable for personal injuries the officer suffered after an unknown individual — not Mckesson — threw a "rock-like" object at him during a 2016 protest of the killing of Alton Sterling by Baton Rouge, Louisiana, police.

The officer does not claim Mckesson authorized or even knew about the rock-throwing incident. Rather than sue the rock-thrower, however, the officer is suing Mckesson on the theory that he allegedly helped organize the protest and that, in doing so, he "should have" known that the protest would become violent.

The ACLU represented Mckesson in this case and argued that this standard of liability violates the First Amendment and would pose an unconstitutional burden on our right to protest. It would chill free speech by making protests too "risky" to organize. Despite this, the Fifth Circuit held that a protest organizer could be liable for the independent, violent actions of others based on nothing more than a showing of negligence.

The ACLU and co-counsel then filed a petition for Supreme Court review, which was denied. The Court's decision not to intervene at this juncture means the Fifth Circuit's opinion remains in place. Many activists and organizers are understandably troubled by how this theory of "negligent protest" could impact our ability to organize. Thankfully, the story, and the right to organize a protest, does not end here.

Even though the Supreme Court allowed the Fifth Circuit's dangerous ruling to stand, the impact of that decision is limited. It currently only impacts three states: Louisiana, Texas, and Mississippi. Furthermore, of those three, only Louisiana courts have established a negligent protest claim, further limiting the impact to that state alone. And while it is possible that a future protest organizer in Louisiana might find themselves before a court that tries to apply the Fifth Circuit's reasoning, the First Amendment still provides significant protections against punishment or liability for protected protest activities.

In addition, other Supreme Court cases make clear that the First Amendment requires more than just negligence before a person can be held liable for speech. Justice Sonia Sotomayor pointed this out in a statement accompanying the denial of review in Mckesson. She explained that just last year, the Court held in Counterman v. Colorado that the First Amendment prohibits holding anyone liable for mere negligence when it comes to the impacts of their speech. Lower courts should apply Counterman in all future proceedings, even though it was decided after the Fifth Circuit issued its ruling in Mckesson. So, the Fifth Circuit's decision is not the only case that will be considered in future cases.

The goal of lawsuits like these is to scare people from organizing and attending legal protests — full stop. But the law still protects the right to protest, and in Washington State, your rights are not impacted. The First Amendment still firmly protects your right to assemble and express your views.

Police and government officials can place some narrow restrictions on protests (like limiting the route of a march or the use of certain sound equipment), but courts in Washington recognize those restrictions have to be reasonable and limited. For example, in a recent ACLU-WA case (Black Lives Matter v. Seattle) a Washington court recently affirmed individuals' right to protest without fear of police violence. We at the ACLU want you to know that the Court's decision to deny review does not mean the Fifth Circuit's ruling is correct or will be applied in Washington, and we will fight to ensure your right to protest and speak out.

Freedom of speech, expression, and assembly are foundational to the health of our democracy. Holding protest leaders accountable for the behavior of a single bad actor extracts too high a cost on our democracy, stifling speech and debate. At a time when the rights of so many marginalized communities are under attack, our right to protest is as crucial as ever.

The South Seattle Emerald is committed to holding space for a variety of viewpoints within our community, with the understanding that differing perspectives do not negate mutual respect amongst community members.

The opinions, beliefs, and viewpoints expressed by the contributors on this website do not necessarily reflect the opinions, beliefs, and viewpoints of the Emerald or official policies of the Emerald.

Michele Storms is the executive director of ACLU-WA.

📸 Featured Image: Hundreds of people react to a speech during a teach-in and peaceful protest organized by Africatown on June 5, 2020, at 23rd and Jackson. (Photo: Susan Fried)