Key Takeaways

1. McKesson v. Doe is a landmark case at the intersection of First Amendment rights and state law negligence claims, with significant implications for protest organizers.
2. The U.S. Supreme Court vacated a lower court decision that threatened to hold protest leaders liable for the unforeseen actions of others, emphasizing the need for clarity on state law before addressing constitutional issues.
3. The case underscores the ongoing debate about balancing public safety with the right to protest, and its outcome will continue to shape the legal risks faced by civil rights activists and organizers.

Introduction

McKesson v. Doe, 592 U.S. 1 (2020), stands as a pivotal case in the realm of protest rights, civil liability, and the First Amendment. At its core, the case asks whether a protest organizer can be held personally liable for the violent acts of an unknown participant during a protest. The U.S. Supreme Court’s involvement has brought national attention not only due to the high-profile parties involved—namely DeRay McKesson, a prominent Black Lives Matter activist—but also because of the potential chilling effect on protest activity if organizers face broad legal exposure for the actions of others.

This guide provides a comprehensive overview of the case, its legal background, the Supreme Court’s decision, and the broader implications for protest rights and civil liberties. We will analyze the relevant legal standards, the court’s reasoning, and the ongoing litigation, drawing from official sources such as the Supreme Court opinion, SCOTUSblog, and Law.Cornell.Edu.

Factual and Procedural Background

The Baton Rouge Protest and Officer Doe’s Injury

In July 2016, following the police shooting of Alton Sterling in Baton Rouge, Louisiana, DeRay McKesson helped organize a protest outside police headquarters. The demonstration, part of a nationwide movement against police violence, was intended to be peaceful. However, during the protest, some participants allegedly threw objects at police officers. Officer Doe, whose identity remains confidential for safety reasons, was struck by a rock or piece of concrete thrown by an unidentified individual, resulting in injury.

The Lawsuit: Doe v. McKesson

Officer Doe filed a lawsuit in federal district court against McKesson, alleging that McKesson’s role in organizing the protest led to his injury. The claim was based on negligence under Louisiana state law, asserting that McKesson should have foreseen the risk of violence and was therefore responsible for the actions of the unidentified assailant. The suit did not allege that McKesson personally threw the object or incited violence, but that his organization of the protest was itself negligent.

District Court Proceedings

The U.S. District Court for the Middle District of Louisiana granted McKesson’s motion to dismiss, holding that the First Amendment barred Doe’s claims and that McKesson could not be held liable for the actions of others at a protest he organized. This decision was consistent with established precedent, including the Supreme Court’s decision in NAACP v. Claiborne Hardware Co., 458 U.S. 886 (1982), which protected protest leaders from liability for the independent, violent acts of others unless they had specifically incited violence.

Fifth Circuit Reversal

On appeal, the U.S. Court of Appeals for the Fifth Circuit reversed the district court’s dismissal, holding that McKesson could potentially be found liable under a negligence theory. The panel opined that a protest organizer could be responsible for injuries resulting from a demonstration if it was foreseeable that violence might occur. This decision alarmed civil rights advocates, who saw it as a threat to the First Amendment and the right to organize protests.

The Supreme Court’s Involvement

Granting Certiorari

Recognizing the potentially sweeping implications for First Amendment rights, McKesson petitioned the U.S. Supreme Court for review. The Court granted certiorari to address whether the First Amendment precluded Doe’s state law negligence claim against McKesson, and whether the Fifth Circuit’s interpretation of Louisiana law was correct.

The Supreme Court’s Opinion

On November 2, 2020, the Supreme Court issued a per curiam opinion in McKesson v. Doe. Rather than ruling directly on the constitutional question, the Court vacated the Fifth Circuit’s judgment and remanded the case, instructing the lower court to seek clarification from the Louisiana Supreme Court on unresolved questions of state law.

Key Points from the Opinion

• Unsettled State Law: The Court emphasized that before addressing the First Amendment issue, the federal courts must determine whether Louisiana law would even allow a negligence claim under these circumstances. The Supreme Court noted, “If Louisiana law does not provide for liability in a case like this one, the First Amendment issue may be moot.”
• Certification to State Court: The Court instructed the Fifth Circuit to certify the relevant questions to the Louisiana Supreme Court, a common practice when federal courts face unresolved or ambiguous issues of state law.
• First Amendment Caution: The Court declined to address the First Amendment issue directly, reflecting the principle of constitutional avoidance—federal courts should not decide constitutional questions unnecessarily.

You can read the full text of the opinion at Supreme Court PDF and a summary at Justia Law.

Legal Issues and Precedents

The First Amendment and Protest Liability

At the heart of McKesson v. Doe is the question of when, if ever, a protest organizer can be held liable for the unlawful acts of others. The First Amendment guarantees the right to free speech and assembly, but these rights are not absolute. The Supreme Court’s decision in NAACP v. Claiborne Hardware Co. is particularly relevant.

NAACP v. Claiborne Hardware Co., 458 U.S. 886 (1982)

In Claiborne Hardware, the Supreme Court held that civil rights leaders could not be held liable for damages caused by others during a boycott unless they had specifically incited, authorized, or directed the unlawful conduct. The Court stated:

"Civil liability may not be imposed merely because an individual belonged to a group, some members of which committed acts of violence."

This precedent has been widely cited to protect protest organizers from being held responsible for the unpredictable actions of participants unless there is clear evidence of incitement or direction.

State Law Negligence Claims

The other key legal issue is whether Louisiana law recognizes a negligence claim under these circumstances. In general, negligence requires:

1. Duty: The defendant owed a duty of care to the plaintiff.
2. Breach: The defendant breached that duty.
3. Causation: The breach caused the plaintiff’s injury.
4. Damages: The plaintiff suffered harm.

Doe’s claim was that McKesson’s organization of the protest constituted a breach of duty because it created a foreseeable risk of violence. The Supreme Court’s remand focused on whether Louisiana law would actually impose such a duty on protest organizers.

Certification of State Law Questions

When federal courts face unclear questions of state law, they may certify those questions to the state’s highest court. This process allows the state court to interpret its own laws, ensuring that federal courts do not misapply state law principles. In McKesson v. Doe, the Supreme Court directed the Fifth Circuit to seek guidance from the Louisiana Supreme Court on whether a negligence claim could proceed under Louisiana law.

The Broader Context: Protest Rights and Legal Risks

The Chilling Effect on Protest Organizers

Civil rights organizations and legal scholars have warned that holding protest organizers liable for the actions of others could have a chilling effect on free speech and assembly. If activists face the threat of personal liability for unpredictable violence at protests they organize, many may be deterred from exercising their constitutional rights. The ACLU has highlighted this concern, stating that the Fifth Circuit’s initial ruling “would have made it virtually impossible for people to organize protests without risking personal financial ruin.”

Balancing Public Safety and First Amendment Rights

The case also raises important questions about how to balance public safety with the right to protest. Law enforcement officers and the public have a legitimate interest in preventing violence and maintaining order. However, the law must also safeguard the right to protest as a cornerstone of democratic society. The Supreme Court’s cautious approach in McKesson v. Doe reflects the need to navigate these competing interests carefully.

Ongoing Litigation and Future Implications

As of this writing, the case remains active, with the Fifth Circuit seeking clarification from the Louisiana Supreme Court. The outcome of that process will shape the future of protest liability in Louisiana and potentially set a precedent for other states. Legal observers continue to monitor the case closely, as its resolution will have far-reaching implications for protest organizers, civil rights activists, and the legal landscape of First Amendment protections.

Analysis of the Supreme Court’s Reasoning

Constitutional Avoidance and Judicial Restraint

The Supreme Court’s decision to vacate and remand the case, rather than rule directly on the First Amendment issue, reflects the doctrine of constitutional avoidance. This principle holds that courts should avoid deciding constitutional questions if a case can be resolved on other grounds. By requiring the Fifth Circuit to seek guidance from the Louisiana Supreme Court, the Court ensured that the federal courts would not unnecessarily wade into constitutional waters if the state law claim is ultimately unavailable.

Protecting Protest Rights While Respecting State Law

The Court’s approach also demonstrates respect for the federalist structure of American law. State courts are the ultimate arbiters of their own laws, and federal courts should not preempt their authority. At the same time, the Court’s opinion sends a clear signal that any state law imposing liability on protest organizers must be carefully scrutinized to avoid infringing on First Amendment rights.

The Role of Precedent

By referencing NAACP v. Claiborne Hardware, the Supreme Court reaffirmed the principle that protest leaders are generally protected from liability for the independent acts of others, absent evidence of incitement or direction. This precedent remains a bulwark against efforts to chill protest activity through civil litigation.

The Fifth Circuit’s Reasoning and Its Critique

The Fifth Circuit’s Approach

The Fifth Circuit’s opinion reasoned that McKesson could be liable under a negligence theory if it was foreseeable that violence would result from the protest he organized. The panel emphasized that the protest blocked a public highway and that previous protests in Baton Rouge had resulted in violence, suggesting that McKesson should have anticipated the risk.

Criticisms and Concerns

Legal scholars and civil liberties groups have criticized this reasoning on several grounds:

• Overbreadth: The ruling could expose protest organizers to liability for any unlawful acts that occur at large gatherings, even if they have no control over participants.
• Vagueness: The standard of “foreseeability” is inherently subjective and could be applied inconsistently, leading to uncertainty for activists.
• First Amendment Concerns: The ruling risks chilling protected speech and assembly by making organizers responsible for the unpredictable actions of others.

The Vox article provides a detailed analysis of these concerns.

The Current Status and Future Prospects

Certification to the Louisiana Supreme Court

Following the Supreme Court’s remand, the Fifth Circuit certified the key questions of Louisiana law to the Louisiana Supreme Court, which will determine whether a negligence claim like Doe’s is viable under state law. This process may take months or even years, and the outcome will be closely watched.

Potential Outcomes

Several scenarios are possible:

1. Louisiana Supreme Court Finds No Duty: If the state court finds that Louisiana law does not impose a duty on protest organizers in these circumstances, the case will likely be dismissed, and the First Amendment issue will be moot.
2. Louisiana Supreme Court Finds a Duty Exists: If the state court finds that such a duty exists, the case will return to the federal courts to address the First Amendment question directly.
3. Legislative Action: The Louisiana legislature or other state legislatures may respond by clarifying or amending state law to address protest liability explicitly.

Broader Implications

Whatever the outcome, McKesson v. Doe will serve as a reference point for future cases involving protest liability, civil rights, and the intersection of state tort law with constitutional protections.

Conclusion

McKesson v. Doe is a landmark case with profound implications for civil rights, protest law, and the First Amendment. The Supreme Court’s decision to vacate and remand reflects a careful balancing of constitutional and state law principles, underscoring the importance of protecting protest organizers from undue liability while respecting the role of state courts in interpreting their own laws.

As the case continues to unfold, it will remain at the forefront of debates about protest rights, public safety, and the scope of civil liability. Legal professionals, activists, and scholars alike should closely monitor developments, as the ultimate resolution will shape the legal landscape for years to come.

For more detailed legal research and analysis, attorneys are encouraged to visit Counsel Stack.

Additional Resources

• Official Supreme Court Opinion (PDF)
• SCOTUSblog Case Page
• Justia Law Summary
• Law.Cornell.Edu Full Text
• ACLU Press Release
• Vox Analysis

Disclaimer: This guide is for informational purposes only and provides a general overview of McKesson v. Doe. It does not constitute legal advice. The case involves complex and evolving legal issues; attorneys and parties should consult official sources and qualified counsel for guidance on specific situations.