There is No Such Thing as Negligent Protest

The Supreme Court should fix a recent Fifth Circuit opinion that misconstrues the First Amendment

Black Lives Matter Protest by Anthony Quintano

In an earlier post, I called attention to Doe v. Mckesson, a recent decision by the United States Court of Appeals for the Fifth Circuit. The case involves a protest in front of the Baton Rouge police department led by DeRay Mckesson, a Black Lives Matter movement leader. Mckesson eventually led the protesters onto a local interstate to block traffic. At this point, Baton Rouge police began making arrests, and during this confrontation an unidentified protester struck and severely injured an officer.

Nobody disputes that the protester who struck the officer would be criminally and civilly liable for their actions should they be identified. The complication in this case arises because the officer also sued Mckesson. The officer argued that because Mckesson led the protest and engaged in lawbreaking by obstructing traffic, he should be personally responsible for the officer’s injuries at the hands of another protester.

The Fifth Circuit concluded that the First Amendment does not shield Mckesson from potential tort liability for the violent actions of the unidentified protester. Under the court’s reasoning, Mckesson can be liable for the officer’s injuries simply because there was a chance that the protest could lead to injuries, even though Mckesson did not direct, encourage, or engage in any violent conduct. In doing so, the Fifth Circuit effectively established a tort of negligent protest.

There is no such thing as negligent protest. In suggesting such a standard, the Fifth Circuit endangers core First Amendment protections, specifically the right of assembly. Mckesson has petitioned the United States Supreme Court to review the Fifth Circuit’s decision. This is a matter of great importance, and the Supreme Court should take the case to correct the Fifth Circuit’s error.

Last month, I filed an amicus brief urging the Supreme Court to do just that. I was fortunate to be represented by my former student, Andrea Butler, and the law firm of Bryan Cave Leighton Paisner.

Our brief makes two principal arguments. First, the negligent protest theory violates the right of assembly and deters the exercise of First Amendment rights. Second, the decision drastically departs from earlier Supreme Court precedent. As our brief argues, the Fifth Circuit’s reasoning fails on textual, historical, and precedential grounds.

The Text of the First Amendment

The text of the First Amendment does not limit assembly to the purposes of petitioning the government. To be sure, the text is not grammatically clear:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Notice that in the final clause of the First Amendment, a singular “right” refers to both “to assemble” and “to petition.” But the comma after “assemble” and the conjunction “and” are both textual clues to antecedent drafts that the Framers cobbled together to compose the First Amendment. The original context of the First Amendment makes clear that assembly and petition are two separate and independent rights. In other words, the First Amendment protects the right of the people peaceably to assemble.

In 1886, the Supreme Court misread the text and concluded otherwise. Surprisingly, the Court has never fixed its erroneous reading, although as I noted in an earlier post, it came tantalizingly close in its 2021 decision, Americans for Prosperity v. Bonta. Mckesson’s right to assemble, so long as that assembly was “peaceable,” is thus presumptively protected by the First Amendment’s text. If you’d like to learn more about it, you can read my book for free.

The History of the First Amendment

The First Amendment’s history and tradition also demonstrate that individuals have the right to assemble in public spaces, such as the sidewalks and streets on which Mckesson protested.

At the time the First Amendment was ratified, the Assembly Clause was understood to include the right to assemble in public spaces. During the debates in the First Congress, proponents and opponents of including a distinct right of assembly mentioned the arrest and trial of William Penn for public worship on the streets of London. At the time of Revolution, political meetings often occurred in pubs—known then as “public houses.” The post-ratification history of assembly confirms this understanding. Not long after the ratification of the First Amendment, gatherings of Democratic-Republican societies in public spaces were common, underscoring that the original understanding of the Assembly Clause included the right of the people to gather in such spaces.

As the Court reinforced in its 1939 decision, Hague v. Committee for Industrial Organization, the right of peaceable assembly includes a right to “use . . . the streets and public places” for “purposes of assembly . . . and discussing public questions,” as “a part of the privileges, immunities, rights, and liberties of citizens.” These ideas are reinforced in an important 1965 article by legal scholar Harry Kalven:

In an open democratic society the streets, the parks, and other public places are an important facility for public discussion and political process. They are in brief a public forum that the citizen can commandeer; the generosity and empathy with which such facilities are made available is an index of freedom.

The history and tradition of the First Amendment also elucidate the meaning of the Amendment’s use of “peaceable.” The right to “peaceable” assemble includes a core right to non-violent protests. Importantly, and contrary to the Fifth Circuit’s holding, “peaceable” does not equate to “lawful,” which suggests the First Amendment protects some non-violent assemblies that violate other ordinances.

Supreme Court Precedent on the First Amendment

The Fifth Circuit’s decision departs drastically from the Supreme Court’s 1982 decision, NAACP v. Claiborne Hardware. In that decision, the Court recognized that a person’s exercise of the rights of speech and assembly “do not lose all constitutional protection merely because some members of the group may have participated in conduct or advocated doctrine that itself is not protected.” While the First Amendment does not protect violence, to punish a person for their involvement with “a group having both legal and illegal aims” the individual must “specifically intend to accomplish the aims of the organization by resort to violence.”

A civil lawsuit against a protester filed long after a protest has ended is not the same as law enforcement intervening to stop a protest while it is ongoing. But the consequences are similar—establishing liability in this case will create a “chilling effect” on subsequent protestors who may now face civil liability simply for leading a protest. The Fifth Circuit’s holding that Mckesson can be liable for his mere leadership of a protest, even when his actions were undisputedly peaceful and there is no suggestion he specifically intended to aid the violent conduct that injured Officer Doe, runs afoul of Claiborne’s protections.

Final Thoughts

As we noted in our amicus brief, the Fifth Circuit’s decision is “astonishingly broad and could apply to nearly any public gathering.”

Based on the Fifth Circuit’s logic, the organizers of everyday gatherings could be held liable merely for organizing events. For example, the owner of a baseball team could be liable for a tussle between opposing fans outside the stadium after a charged rivalry game, as the owner assumed control of the crowd attending the game, and it was foreseeable that opposing fans may become violent, particularly where, as is common for public sporting events, alcohol is served at the game and impassioned fans of different teams are brought in close proximity of one another. The same could be said for a protest leader that fails to call off a demonstration despite anticipating the presence of violent counter-protestors.

While there may be legitimate debate as to what counts as reasonable restrictions on the fundamental right to assemble and whether the First Amendment immunizes conduct such as highway blocking, the Fifth Circuit’s articulation of the “negligent protest” standard goes too far. It threatens to impose nearly unlimited tort liability on any protest leader as soon as the protest crosses the highly subjective and malleable line of “foreseeably violent.” The First Amendment does not tolerate such a sweeping standard governing liability for the exercise of the core right of assembly.