In April 2024, the Supreme Court announced it would not hear the Mckesson v. Doe case—which determined whether a protest leader can be held legally responsible for injuries inflicted by another person's "violent" act—and instead, chose to uphold the Fifth Circuit Court of Appeals ruling already in place. Since 2016, notable Black Lives Matter activist DeRay Mckesson has been in a persistent battle with an unnamed officer who holds him responsible for being hit with a "rock-like" object at a protest Mckesson organized. The catch? Mckesson didn't throw the object. However, he did organize the protest. Therefore, according to the Fifth Circuit Court's decision, is liable for the officer's injury.
In 2017, an anonymous Baton Rouge police officer sued Mckesson after he sustained injuries from being hit in the face by an object thrown by an anonymous person during a 2016 protest organized in response to the police killing of Baton Rouge resident Alton Sterling. Though the officer admits that Mckesson didn't throw the object—as the actual offender still remains unidentified—he demanded the activist be held accountable as the protest organizer.
After the US District Court for the Middle District of Louisiana granted Mckesson a motion to dismiss the original lawsuit in September 2017, the officer appealed and, as a result, the Fifth Circuit Court sided with him in 2019. Following that decision, Mckesson and the American Civil Liberties Union, who represented him, entered into a back-and-forth with the courts as they attempted to get the ruling reviewed. The Fifth Circuit sided with Doe for a final time in June 2023.
Protest Repression's Southern Precedent
The Mckesson v. Doe ruling allows protest organizers to be held responsible for the "independent, violent actions of others based on nothing more than a showing of negligence." Concerned that the ruling would make it easier for those who oppose a political or social movement to instigate violence at protests and avoid accountability, Judge Don Willett dissented from the panel, writing, "Nor can we be blind to the fact that individual rogue officers have caused violence on occasion."
Willett's concerns have historic precedence. In 1965, my maternal grandmother was an untimely bystander who witnessed the droves of Selma police officers lining up on the Edmund Pettus Bridge, waiting to brutalize the hundreds of ill-fated, peaceful Civil Rights Movement protesters led by late US Congressman John R. Lewis. Nearly 60 years later, I witnessed the same violent tactics used on peaceful college protesters who set up encampments on their campuses in protest of Israel's genocide in Gaza.
In his dissent, the judge mentioned similar historic moments of unrest, citing among them Dr. Martin Luther King's last protest for sanitation workers' rights in Memphis just before his assassination. While leading the peaceful demonstration, a few young men began to break store windows, prompting a brutal response from law enforcement against both peaceful and violent demonstrators, killing a 16-year-old boy. Willett notes that had the Mckesson v. Doe ruling been around in 1968, King would've been held responsible for the unfortunate incidents at the Memphis action.
In Justice Sotomayer's statement that accompanied the conservative Supreme Court's decision to not hear the case, she referenced the 2023 Counterman v. Colorado decision in which The Court explained that "the First Amendment precludes punishment [for incitement], whether civil or criminal, unless the speaker's words were 'intended' (not just likely) to produce imminent disorder." Simply put, for a defendant to be prosecuted for a "true threat," proof of subjective recklessness is required. But because the Counterman ruling came two weeks after the Fifth Circuit's opinion in Mckesson, the Supreme Court ruling couldn't be referenced to Mckesson's benefit. Sotomayer concluded her statement by saying that although the Fifth Circuit didn't have the ruling, lower courts now do and she expects "them to give full and fair consideration to arguments regarding Counterman's impact in any future proceedings in this case."
The Southern Blueprint for Law and Order Repression
In July 2024, the district court granted Mckesson's motion for summary judgment and with it, summarily dismissed the lawsuit after it found the anonymous officer failed to offer adequate evidence to support his negligent protest claim as grounds to hold the defendant liable for his injuries. While this is indeed a major win for Mckesson and the larger right to protest, it offers a powerful case study in the ways anti-protest sentiment is leveraged, especially in the South, to manufacture consent for repression.
Despite the Fifth Circuit's jurisdiction being limited to Texas, Louisiana, and Mississippi, draconian laws and rulings originating in the South are often the blueprint for repressive legislation across the country. While the Mckesson decision may have presented a potential threat to the future of protestors' rights, the case also shed light on the unstable nature of First Amendment rights protections in these three Southern states. As the ACLU explains, Louisiana is the only state of the three that acknowledges a "negligent protest" claim, and the Supreme Court has already ruled in cases like NAACP v. Claiborne Hardware Co. that the government can't simply blame peaceful protesters for violence that they didn't intend.
The media also plays a crucial role in manufacturing public consent in cases that determine free speech restrictions and protest repression. Its role in shaping how protesters are portrayed to the public, in turn, determines the public's opinion on how demonstrators should be handled. When peaceful protesters are deliberately mischaracterized as violent, support for increased use of force from law enforcement and more restrictive legislation increases. And as history has shown, when grand moments of social progress take place, particularly in the South, the powers that be often push back with even grander levels of suppression. From school integration leading to white flight to voting rights leading to poll taxes, mass incarceration, and other forms of disenfranchisement, the South is often the testing grounds for antidemocratic practices. Since 2017, 49 protest laws have been enacted across 24 states and 20 bills are pending. As false threats to democracy are created by grouping peaceful protesters with violent ones, the public's willingness to hand over their constitutional rights for a faux sense of protection rises.
This decades-old strategy of improper blame greatly impacted the Civil Rights Movement. In 1967, Birmingham News published Charles Brooks' infamous political cartoon depicting a looted, smoke-filled town following a protest led by Dr. Martin Luther King Jr. Standing next to an injured white man on the ground, King tells a reporter "I plan to lead another non-violent march tomorrow."
Now regarded as possibly the most beloved activist in American history, only one-third of Americans viewed King favorably at the movement's zenith. In the wake of his assassination and the urban riots it sparked, the 1960s era of political and civil uprisings were met with calculated calls for "law and order" from Richard Nixon's administration. His second presidential campaign came at an opportune time for repressive policymaking, as the nation was looking for an end to the race riots and a progressive move forward. It was this social climate that allowed Nixon to manufacture consent to restore order by any means, without being met with stifling public dissent. To an overwhelmingly white constituency, a promise to calm the racial unrest was an auspicious campaign platform.
Nixon's call for "law and order" in the 1960s is largely understood as a racist dog whistle for re-establishing order without providing justice, and has since been revived by other presidents like Bill Clinton and Donald Trump following periods of racial unrest. In 2020, Trump used the term to discourage activists by threatening them with more excessive force from law enforcement, tougher sentencing, and other punitive measures to suppress their movements and discourage future dissent. He often used terms like "thugs" and "terrorists" to describe Black Lives Matter (BLM) protesters and his "tough on crime" approach left Portland and other urban cities looking like scenes from a dystopic, authoritarian film.
During 2020 BLM protests, Bernice King referenced the political cartoon of her father tweeting, "Because my father and his nonviolent strategy were so beloved by America and the white power structure before he was assassinated…" Like King-led protests, BLM protests were overwhelmingly peaceful, with nearly 95 percent of them not resulting in violence or property damage according to ACLED data. Yet, nearly half of respondents to a Morning Consult poll said most protesters are trying to incite violence or destroy property. This outcome is likely due to the media's sensationalized coverage of the few instances of "violence." In June 2020, FOX News repeatedly showed b-roll of looters from two weeks prior. And outlets like the Washington Post and AP News reported the double standards of the media's coverage of BLM protests versus the Capitol insurrection.
The courts' restrictive protest rulings working in tandem with the media deliberately mischaracterizing protesters pose a legitimate risk to dissent ahead of the November election and subsequent presidential administration. Democratic presidential candidate Kamala Harris has already adopted the "law and order" posture, both in her proposed restrictions on immigration and the culture of her campaign. At the 2024 Democratic National Convention, the current vice president's campaign team unveiled a new ad satirizing their "cop vs. criminal" campaign angle with a spoof of NBC's Law & Order featuring the crimes of former president Trump.
As restrictive laws on immigration, education, LGBTQ+ rights and more proliferate throughout the country, there is growing reason to protest and a growing risk to do so. Already this year, we have seen harsh responses to pro-Palestinian and anti-Cop City protesters. Additionally, risks for violent uprisings depend on who makes it on the ballot and what potential the election's outcome will create for peaceful protesters to once again be grouped with violent agitators.
As for activists who are still planning to mobilize, Black and non-white ones in particular should be rightfully concerned about what the future holds for their ability to do so without being held liable for the actions of others.