Can a Protest Leader Be Sued for Negligence When Crimes Occur?

How liable are protest leaders for the actions of people attending the events they organize? Many protests over the years have involved violence, looting, and other criminal behavior.

The First Amendment doesn't protect speech that incites violence, but what about civil negligence claims? If protest leaders can be held liable on a theory of negligence, then organizing a protest is financially risky, to say the least. Does the First Amendment protect against negligence claims?

The Supreme Court had the chance to clarify the law on this issue in McKesson v. Doe. They decided not to. By denying cert, the Supreme Court leaves a Fifth Circuit decision in place that allows a claim of negligence against a protest organizer. There is now some doubt on the state of the law.

Justice Sonia Sotomayor wrote to explain the court's rationale in denying cert, but lower courts will have some freedom moving forward to hold protest organizers liable for negligence, particularly in Louisiana, Texas, and Mississippi, the Fifth Circuit's jurisdiction.

A Long-Running Case

Back in 2019, the Fifth Circuit found that DeRay Mckesson, who organized a Black Lives Matter protest, could be liable for an officer's injury even though Mckesson did not injure the officer directly. During that protest, a still-unidentified protestor threw a hard object that hit a police officer in the Baton Rouge Police Department in the head, causing severe injury.

Mckesson did not throw the item, but the police officer sought to hold Mckesson accountable in a civil court under various legal theories, one of which was negligence. The officer alleged that Mckesson "knew or should have known" that violence could occur at the event.

The case went up and down in federal court for years, with both the U.S. Supreme Court and the Supreme Court of Louisiana weighing in. In 2023, the Fifth Circuit Court of Appeals again issued a decision on the case. It dismissed most claims but found that Mckesson could be liable under a theory of negligence.

Mckesson, represented by the ACLU, appealed to the Supreme Court. After considering the case for seven consecutive conferences, the Supreme Court denied cert.

But before we get to Justice Sotomayor's explanation, let's go over the Fifth Circuit opinion.

The Fifth Circuit's Opinion

The Fifth Circuit essentially affirmed its previous ruling. In a 2-1 decision, the Fifth Circuit held that Mckesson created unreasonably unsafe conditions in organizing the 2016 protest by holding it in front of a police station and directing protestors onto a public highway, a violation of Louisiana traffic laws. The protest was in response to the shooting death of Alton Sterling earlier that year by a Baton Rouge police officer.

According to the majority, the injured police officer plausibly alleged his injuries "were the result of Mckesson’s own tortious conduct in directing an illegal and foreseeably violent protest.” Both parties agree that Mckesson did not advocate for violence.

It is the first time a federal court has held that a protest organizer can be liable for simple negligence based on the actions of a participating protestor.

In his dissent, Judge Don Willett pointed to the Supreme Court's 1982 decision in NAACP v. Claiborne Hardware, which held that the First Amendment protects protest organizers from liability for third-party actions in all instances except:

First, a finding that he authorized, directed, or ratified specific tortious activity would justify holding him responsible for the consequences of that activity. Second, a finding that his public speeches were likely to incite lawless action could justify holding him liable for unlawful conduct that in fact followed within a reasonable period. Third, the speeches might be taken as evidence that Evers gave other specific instructions to carry out violent acts or threats.

The majority held that because Mckesson encouraged the protest to move onto a public highway, he could be liable because that amounted to an authorization of tortious activity and incited lawless action (breaking traffic laws). Judge Willet, in the dissent, disagreed, writing that "[u]nder Claiborne, Mckesson cannot be liable for violence unless he encouraged violence. It is not enough that he encouraged or committed unlawful-but-nonviolent actions that preceded violence."

To apply this holding to another situation, would a Capitol police officer be able to sue Donald Trump for negligence after being injured on January 6 if the injured officer showed that Trump encouraged a participant to jaywalk on their way to the Capitol? The Fifth Circuit majority seems to say yes.

Justice Sotomayor's Explanation

The Supreme Court does not need to explain its rationale in denying cert, although justices do weigh in when they feel it necessary. Here, Justice Sotomayor wrote to note that denying cert expressed no view on the merits of the First Amendment arguments at issue in Mckesson.

Justice Sotomayor nonetheless made her views apparent, writing that two weeks after the Fifth Circuit's decision, in the 2023 case Counterman v. Colorado, "the [Supreme] Court made clear that the First Amendment bars the use of 'an objective standard' like negligence for punishing speech" and that Claiborne and other incitement cases “demand a showing of intent" to incite violence.

In other words, the Supreme Court reached the opposite conclusion from the Fifth Circuit in a 7-2 decision just weeks after the Fifth Circuit opinion.

She closed by writing that "[a]lthough 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."

It is clear that Justice Sotomayor (and the ACLU) think that the district court should again dismiss all of the officer's claims.

However, while Sotomayor's views are apparent, the full Supreme Court did not weigh in. Thus, the Fifth Circuit opinion is still in effect. The district court where Mckesson is being sued will have some leeway in deciding if the case goes before a jury.

Until the First Amendment issue in this case is resolved, protest organizers in Texas, Louisiana, and Mississippi may want to tread carefully and get the advice of a lawyer before organizing a protest event.

Related Resources

• Does the First Amendment Protect Speech That Advocates Illegal Conduct? (FindLaw's U.S. Constitution)
• Fifth Circuit Upholds Texas' Age Verification Requirement for Adult Websites (FindLaw's Federal Courts)
• Does the First Amendment Protect Protestors? (FindLaw's U.S. Constitution)