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Why You Need to Care About DeRay Mckesson's First Amendment Case

This ruling could make protest leaders liable for things they didn’t do

by Alexander Stockton
Jul 12 2019, 2:51pm

DeRay Mckesson, a well-known voice of the Black Lives Matter movement, marched with hundreds of people onto a busy highway in Baton Rouge in July 2016 to protest the fatal police shooting of a black man. He was quickly arrested, but the protests continued on without him.

And then a cop got attacked.

An unknown protester threw a heavy object at an officer later that night, severely injuring him. Mckesson didn’t throw the object, he didn’t tell anyone to throw it, and he wasn’t even there when it was thrown. But he's getting sued, as the alleged leader of the protest.

Mckesson was sued by cops four other times in 2016 for things that other protesters did, including at a protest he didn’t even attend. All those cases were dismissed. But this time it’s different: In April, three judges on the 5th Circuit said the Baton Rouge lawsuit could proceed, and Mckesson fears it may have a chilling effect on future protests.

Their ruling hinges on the allegation that Mckesson ordered protestors onto the highway.

“I know that part of civil disobedience is a disobedient part. And I knew that when I walked into the highway,” Mckesson told VICE News. “I knew that we were in the street to make it really clear that Alton [Sterling] should be alive today and that the only way to get the attention of people was to do things that disrupted their sense of normalcy.”

The judges call this a “but for” cause of the officer’s injury. “But for” Mckesson leading protestors onto the highway, the officer would never have been injured. By that logic, they say, he can be held liable for the injury and the case can be tried in court.

“The problem with this ruling from the court in Louisiana is that it would basically hold any civil rights leader or protester liable for any of the actions of anyone else.” Ben Wizner, a lawyer from the ACLU told VICE News. “Gandhi broke the law. Martin Luther King broke the law. But does that mean that the person who leads that march would be responsible if someone pulled out a gun and started shooting? The answer is: absolutely not.”

It’s a surprising ruling, because it seems to ignore a pretty clear Supreme Court precedent. A unanimous decision from a Civil Rights–era case, NAACP v. Claiborne Hardware Co., established that it’s legal to be part of a protest in which illegal activity occurs. Unless a protest leader directly orders violence, the Supreme Court said he should be protected by the First Amendment.

Mckesson is using this precedent to his defense. In June, Mckesson filed a petition to have his case reheard by the entire 5th Circuit, hoping they will overturn the decision of three of its judges. His petition states, “To treat damages from unintended, independent criminal violence as a ‘consequence’ for which a nonparticipant may be held liable disables the Claiborne rule in every case where it operates; indeed, it would condemn the result in Claiborne itself.” If he’s denied rehearing or if the 5th Circuit disagrees with him, he’ll appeal to the Supreme Court.

Ultimately, if the case is tried in court, Mckesson is confident he’ll win, because he says he didn’t organize the protest or order people onto the highway. What scares him, though, is how the 5th Circuit’s ruling could entangle protest leaders in litigation for the actions of rogue protestors.

“Say, for example, you organize a march. Somebody that doesn't agree with any of your views comes in and throws a rock at somebody. That person gets hurt. You're now responsible,” Mckesson told VICE News. “I think that would make people absolutely less likely to organize protests.”

Art Direction by Ana Simoes

This segment originally aired July 11, 2019, on VICE News Tonight on HBO.