“The Right to Protest for Right”: Reaffirming the First Amendment Principle that Limits the Tort Liability of Protest Organizers

On December 16, 2019, the U.S. Court of Appeals for the Fifth Circuit held in Doe v. Mckesson that a court could hold DeRay Mckesson liable for damages to a police officer whom an unidentified assailant injured at a 2016 Black Lives Matter protest that Mckesson helped organize. Mckesson did not cause the officer’s injuries, and he did not order, encourage, or incite the protestors at the demonstration to act violently. The Fifth Circuit held that Mckesson could be liable only because he played a role in organizing the demonstration. In 1982, the U.S. Supreme Court set forth an important principle in NAACP v. Claiborne Hardware Co. that limited the extent to which a court could hold protest organizers engaged in protected First Amendment activity liable for the violent acts of third parties. Many First Amendment scholars considered the Fifth Circuit’s decision in Doe v. Mckesson a direct affront to the principle set out in Claiborne Hardware. Indeed, Mckesson engaged in core protected speech activity when he protested police misconduct and thus should have fallen under the protection of the stringent standard. In November of 2020, in Doe v. Mckesson, the Supreme Court reversed and remanded the Fifth Circuit’s decision, but it did so in a per curiam opinion based only on issues concerning Louisiana tort law theories, leaving the First Amendment implications unanswered. This Note argues that the limited liability principle set forth in Claiborne Hardware is an essential protection for organizers and for democracy, such that the Supreme Court should look for opportunities to reaffirm it in the wake of the Fifth Circuit’s latest attack.