This piece, co-authored with IFS Communications Director Luke Wachob, originally appeared in Reason on June 16, 2020.
Recent weeks have shown how easily troublemakers can infiltrate peaceful protests, as even President Donald Trump has admitted. These individuals do not support the cause of the protesters, but exploit the moment to commit acts of wanton destruction. Those few who smash up and loot high-end storefronts should not detract from the message of tens of thousands of peaceful protesters. So why should someone hurt by a lawbreaker be able to sue the person who organized the protest?
In most parts of the country, they could not. But the Court of Appeals for the Fifth Circuit, which covers Mississippi, Louisiana, and Texas, allowed such a lawsuit to proceed in December 2019. A policeman injured by an unknown attacker at a Black Lives Matter protest in July 2016 in Louisiana sued the protest’s organizer, DeRay Mckesson, for damages. Mckesson did not attack the officer or urge anyone to commit violence. He simply led the protest at which the attack happened.
The injured police officer argued that Mckesson was negligent because he should have known violence would occur at the event. If this standard had been in place throughout our history, important leaders and staunch advocates of nonviolence like Martin Luther King Jr. could have faced a wave of devastating lawsuits. Violent incidents have occurred even at peaceful protests.
The question is not whether someone got hurt, but whether organizers contributed to the harm. Mckesson did not. In permitting the lawsuit to proceed, the Fifth Circuit’s opinion handed a terrible weapon to would-be censors.
Even a successful defense of such a lawsuit costs time and money that most Americans don’t have. If protest organizers can be dragged into court whenever an injury occurs in an otherwise peaceful assembly, only those backed by big groups or the wealthy would feel secure exercising their rights. This would chill protest activity for grassroots causes across the political spectrum.
The Supreme Court should follow its own lead from defamation cases like New York Times v. Sullivan. (The Institute for Free Speech, for which the authors work, has filed an amicus brief in support of this case being heard by the Court.) In this area of law, the Court has recognized the need to protect speakers from crushing lawsuits. Public figures who allege defamation must show that not only were they defamed, but that the speaker either knew their statement was false or recklessly disregarded whether it was true.
Similarly, those filing a lawsuit against a protest organizer should have to do more than show they got hurt at a protest. They should be required to provide evidence that the organizer directly and knowingly encouraged or contributed to the harm. Otherwise, our expensive and punishing legal process will harm free speech.
The right to protest is core to the First Amendment. As Americans try to find ways to make their voices heard amidst a global pandemic, courts should not tip the scales against them. The Supreme Court has a chance to set things right. It should take it.