Court system yet to address looming new threat to free speech

 May 5, 2024

This story was originally published by the WND News Center.

The American court system has yet to address a looming new threat to free speech: a determination that a cop can sue a protest organizer over what someone else did.

The Rutherford Institute, which fights for the religious and civil rights of Americans, said the result likely will be a new shadow over protests over abortion, over gun rights, over pandemic mandates, and many more.

"The ramifications of this case could chill constitutionally protected civil rights protests across the political spectrum," explained John W. Whitehead, chief of the Rutherford and author of "Battlefield America: The War on the American People." "This is yet another Machiavellian attempt by the government to sidestep the Constitution and prevent Americans from exercising their First Amendment right to speak truth to power."

The institute warned the case has the potential for huge influence on speech across all political spectrums as well as the right to protest.

The Supreme Court recently declined to review, sending the dispute back to the lower courts for yet more consideration.

The wrong ruling could mean that people who organize or lead protests, for whatever reason, could be held liable civilly for the actions others take.

The case, Mckesson v. Doe, involves a personal injury lawsuit by a police officer attempting to hold a protest organizer financially liable for injuries the officer sustained when responding to a demonstration, even though the organizer himself did not cause the injury.

It dates to July 2016 when there was a demonstration in front of the Baton Rouge Police Department’s headquarters to protest the escalating police violence directed at black men and women nationwide and demand accountability and reforms.

During the event, DeRay Mckesson, one of the event organizers, "engaged in no acts of violence and did not incite or encourage violence by others," the institute pointed out.

But some others did. A few criminals threw rocks at officers, and one hit one officer, who then sued Mckesson demanding more than $75,000 damages from him, for what the other protester did.

The officer claimed the organizer must have known that there would be violence.

So far, a trial court dismissed the officer's claims, as Mckesson was engaged in constitutionally protected activity. But then 5th U.S. Circuit Court of Appeals said the First Amendment allows liability like that.

While the Supreme Court has declined to sound off right now – the case now will proceed to trial on the claim Mckesson should have known violence was possible – Justice Sonia Sotomayor pointed out the court recently decided Counterman v. Colorado.

That case included the ruling that the First Amendment bars the use of "an objective standard" like negligence for punishing speech.

She explained, "The court explained that 'the First Amendment precludes punishment [for incitement], whether civil or criminal, unless the speaker's words were 'intended' (not just likely) to produce imminent disorder."

The report said the ultimate trial result could then be appealed, too.

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