Amicus Brief Urges Supreme Court to Hear Mckesson Case

Black Lives Matter leader sued; such harassing lawsuits chill speech and protests

April 9, 2020   •  By IFS Staff   •  

Washington, DC – The Institute for Free Speech today urged the U.S. Supreme Court to hear a case arising from a Black Lives Matter protest in Baton Rouge, Louisiana. Lower courts allowed a lawsuit seeking damages for injuries suffered by a policeman to proceed against DeRay Mckesson, even though he did not attack anyone or encourage any violence at the protest he led. Such a lawsuit inevitably chills the freedoms of speech and assembly, the Institute’s brief explains.

“Federal courts must not allow themselves to become unwitting accomplices of would-be censors. The Supreme Court should protect Americans from being dragged through an expensive and punishing legal process for exercising their First Amendment rights,” said Institute for Free Speech Legal Director Allen Dickerson.

The brief urges the Court to “use this case as a vehicle to announce pleading standards sufficient to protect lawful advocacy, including the venerable American tradition of public protest, from litigation designed to stifle it.”

The Supreme Court has long recognized the need to protect First Amendment rights from harassing lawsuits. Most notably, in the landmark civil rights era case, New York Times v. Sullivan, the Court held that libel cases by public figures must allege “actual malice” to proceed. In NAACP v. Claiborne Hardware, the Court unanimously ruled that “civil liability may not be imposed merely because an individual belonged to a group, some members of which committed acts of violence.”

Despite these precedents, and despite no serious allegation that Mckesson was actually responsible for the assault, the Fifth Circuit Court of Appeals allowed the case to proceed. This was an error, the Institute’s amicus brief explains.

“Allowing this case to survive a motion to dismiss will open Mr. Mckesson and the Black Lives Matter movement to substantial discovery and the other assorted burdens of federal civil litigation. This process will serve as a punishment of its own for Mr. Mckesson, regardless of the eventual outcome of the case. But, more fundamentally, it will serve as a weapon against a particular type of group: those who organize protests during which unsolicited acts of illegality and violence occur. Such a precedent would inevitably chill future civil rights protests and encourage organizers to remain silent,” the brief notes.

The case is Mckesson v. Doe. To read the Institute’s brief, click here.

About the Institute for Free Speech

The Institute for Free Speech is a nonpartisan, nonprofit 501(c)(3) organization that promotes and defends the First Amendment rights to freely speak, assemble, publish, and petition the government. Originally known as the Center for Competitive Politics, it was founded in 2005 by Bradley A. Smith, a former Chairman of the Federal Election Commission. The Institute is the nation’s largest organization dedicated solely to protecting First Amendment political rights.

IFS Staff

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