Supreme silence: High court decision curtails protest rights, stifling voices in the South

As the case now returns to lower courts for further proceedings, the national discourse on the limits of free speech and the right to protest continues to evolve.

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A critical ruling by the Supreme Court has cast a long shadow over the constitutional rights of protesters in Texas, Mississippi, and Louisiana. By declining to review the Mckesson v. Doe case, the nation’s highest court has let stand a lower court’s decision that potentially imposes severe financial liabilities on protest organizers—a move that many fear could chill free speech and curb the democratic right to assembly.

The case at the core

The roots of Mckesson v. Doe trace back to a 2016 Black Lives Matter protest in Baton Rouge, Louisiana. During this demonstration, sparked by the police killing of Alton Sterling, an unidentified individual threw an object that injured a police officer. Instead of pursuing the unknown assailant, the injured officer filed a lawsuit against DeRay Mckesson, a prominent activist associated with the movement, claiming that Mckesson was indirectly responsible for his injuries.

The legal battle that ensued focused heavily on whether Mckesson could be held liable for the actions of another protestor under negligence. Initial rulings favored Mckesson, noting the lack of direct involvement in the violent act. However, the Fifth Circuit Court of Appeals overturned these decisions in 2023, allowing the negligence claim against McKesson to proceed. The Fifth Circuit ruled that the plaintiff had “plausibly alleged that McKesson…knew or should have known that the police would be forced to respond to the demonstration, that the protest would turn violent, and that someone might be injured as a result.”

The Supreme Court’s decision not to hear the case has been interpreted by many legal experts and activists as a silent endorsement of the Fifth Circuit’s stance. Justice Sonia Sotomayor, in her commentary on the court’s denial, highlighted that this decision should not be seen as agreement with the lower court’s findings. Instead, she noted the importance of the Court’s previous decision in Counterman v. Colorado, which emphasized that negligence should not be used to punish protected speech.

Despite this, the ruling stands as a formidable precedent that could significantly deter individuals and organizations from orchestrating protests, particularly on issues of racial justice and police accountability. The fear of being held liable for the unforeseeable actions of others could severely restrict the organization of large-scale demonstrations, effectively dampening the collective voice of dissent.

The implications of this ruling are particularly severe for the states under the Fifth Circuit’s jurisdiction. Legal analysts predict that this decision will lead to a notable decline in organized protests, as the risk of financial and legal repercussions becomes too great a burden for many activists. The ruling not only affects those directly involved in civil rights movements but also sets a precarious standard that could be applied to various forms of assembly and free speech across the United States.

The reaction from the community and civil rights organizations has been one of alarm and mobilization. Groups such as the American Civil Liberties Union (ACLU) and local activist networks have expressed their concerns about the ruling’s impact on fundamental American freedoms. Moreover, legal experts continue to debate the potential long-term effects this precedent could have on the interpretation of the First Amendment.

DeRay Mckesson, reflecting on the decision, emphasized the need to continue fighting for civil liberties, stating, “But people don’t need to be afraid to show up. The Constitution still protects our right to protest.” His words resonate with many who see this as a pivotal moment in the ongoing struggle for civil rights and social justice.

This Supreme Court inaction occurs amidst a broader backdrop of increasing legislative attempts across various states to restrict protest activities. These efforts, often framed as measures to maintain public order and safety, have been criticized as attempts by state governments to silence dissent, particularly when it challenges prevailing social or political norms.

“The goal of lawsuits like these is to prevent people from showing up at a protest out of the fear that they might be held responsible if anything happens,” McKesson said. “But people don’t need to be afraid to show up. The Constitution still protects our right to protest.”

As the case now returns to lower courts for further proceedings, the national discourse on the limits of free speech and the right to protest continues to evolve. Advocates for civil liberties are calling for vigilance and continued advocacy to ensure that this decision does not mark the beginning of a significant rollback of protest rights in America.

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Alexandra Jacobo is a dedicated progressive writer, activist, and mother with a deep-rooted passion for social justice and political engagement. Her journey into political activism began in 2011 at Zuccotti Park, where she supported the Occupy movement by distributing blankets to occupiers, marking the start of her earnest commitment to progressive causes. Driven by a desire to educate and inspire, Alexandra focuses her writing on a range of progressive issues, aiming to foster positive change both domestically and internationally. Her work is characterized by a strong commitment to community empowerment and a belief in the power of informed public action. As a mother, Alexandra brings a unique and personal perspective to her activism, understanding the importance of shaping a better world for future generations. Her writing not only highlights the challenges we face but also champions the potential for collective action to create a more equitable and sustainable world.

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