SCOTUS Decision Spells Trouble For BLM Protest Organizer

The officer —whose identity remains secret with court documents identifying him as Jon Doe— accused Mckesson after one protester struck him with a rock during a 2016 protest. The officer claimed the BLM activist incited the violence and did nothing to calm the crowd.

Mckesson filed a request with the Supreme Court, asking the justices to decide whether the First Amendment prevents a protest leader from being held personally liable for violence perpetrated by another individual when the organizer “neither authorized, directed, nor ratified” the act.

The Justices, however, declined to hear Mckesson’s claim, Justice Sonia Sotomayor insisting that the law does not need further clarification.

“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,” Justice Sonia Sotomayor wrote in a statement.

Sotomayor’s statements, however, suggest that the officer still has his work cut out for him when the case returns to the lower court. The SCOTUS justice, citing the recent ruling in Counterman v. Colorado, insisted that the First Amendment does not allow the use of objective standards like negligence to punish speech.

“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,” she wrote. “I expect them to give full and fair consideration to arguments regarding Counterman’s impact in any future proceedings in this case.”

The officer may yet win the case after the Fifth Circuit ruled against McKesson’s request to dismiss the case in 2023. The court noted that the officer had a valid argument when he alleged that McKesson breached his duty while organizing and leading the protest.