(CN) — The Supreme Court rejected a petition for review Monday from a Black Lives Matter activist who was held liable when a rock someone threw hit and injured a police officer during a protest he helped organize.
Demonstrators gathered in front of police headquarters on July 9, 2016, after police responding to a 911 call four days earlier shot and killed Alton Sterling, a Black resident of Baton Rouge, Louisiana. The protest was initially peaceful, although a few of the demonstrators began to throw plastic water bottles in the direction of police.
After someone threw a “rock-like” object that struck and injured a police officer, the officer sued DeRay Mckesson in federal court for organizing the protest.
The officer did not suggest that Mckesson engaged in or encouraged any violence, such as rock-throwing, but claimed McKesson knew or should have known that violence would result at the demonstration he staged and that he did nothing to calm the crowd.
In a statement from Justice Sonia Sotomayor on the denial of Mckesson's new petition, she referred to the 2023 case Counterman v. Colorado, in which the court held that free speech protections do not apply if the defendant recklessly disregarded a substantial risk that their statements would be viewed as threatening violence.
She noted that the justices determined the First Amendment precludes punishment for incitement, unless the speaker's words were intended to cause violence.
However, the court also found that a "less-demanding recklessness standard was sufficient to punish speech as a 'true threat,'” and emphasized that an objective standard like negligence would violate the First Amendment, she added.
"Because this court may deny certiorari for many reasons, including that the law is not in need of further clarification, its denial today expresses no view about the merits of Mckesson’s claim. Although the Fifth Circuit did not have the benefit of this court’s recent decision in Counterman when it issued its opinion, the lower courts now do. I expect them to give full and fair consideration to arguments regarding Counterman’s impact in any future proceedings in this case," Sotomayor wrote.
The Fifth Circuit held that McKesson could be liable under a negligence theory for injuries sustained by the police officer and rejected his argument that the First Amendment barred his liability. Mckesson's argument relies on the Supreme Court's decision in NAACP v. Claiborne Hardware Co., which said the association could not be held liable for damages arising out of its nonviolent protests.
U.S. Circuit Judge Don Willett dissented, explaining that the majority’s theory of "negligent protest" liability against a protest leader for the violent act of a rogue assailant clashed head-on with fundamentals of the Constitution.
He compared the case to other protests throughout the nation's history, noting that the Sons of Liberty are venerated for unlawfully dumping tea into Boston Harbor and that the Selma-to-Montgomery March, which was monumental to the Civil Rights Movement in 1965, involved occupying public roadways.
After the Fifth Circuit's decision, the Supreme Court granted a prior petition for writ of certiorari from Mckesson, resulting in the case being remanded to the Louisiana Supreme Court, which determined that a protest leader could be sued for negligence under state law.
Less than two weeks after the Fifth Circuit once again rejected Mckesson's claims, the justices decided Counterman.
Attorneys representing Mckesson and the police officer did not immediately respond to a request for comment.
Multiple civil rights groups and First Amendment advocates filed amicus curiae briefs to the high court in support of Mckesson's argument.
"The Fifth Circuit erred on a matter of exceptional importance in holding that a protest leader can be liable for negligent protest, even when he did not direct or engage in any violent conduct," John D. Inazu, First Amendment scholar and professor of law and religion at Washington University in St. Louis, wrote in his amicus curiae brief.
"Imposing liability here violates the First Amendment’s protections of freedom of assembly and will drastically chill protestors’ exercise of First Amendment rights based on the threat of liability for any and all damage caused by the protest, even when the event organizers never intended anything but a peaceful protest," he added.
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