Monday, August 10, 2020

McKesson v. Doe—Searching for Clarity on Protesters’ Rights

Guest Blogger

Tabatha Abu El-Haj

This summer’s protests following the murders of George Floyd and Breonna Taylor reveal the costs of an ill-defined right of peaceable assembly. Uncertainty about what is “peaceful” has fueled grotesque law enforcement crackdowns and left protesters exercising their constitutional rights at the mercy of officials. And it has also enabled Bill Barr and others to testify, with straight faces, that the dispersal of protesters on Lafayette Square and the tactics deployed in Portland are warranted.

The Supreme Court has an opportunity to reaffirm that political protests must not be chilled with specious claims that individuals forfeit constitutional protection simply by being in the vicinity of individuals who act violently this term. Despite the vital need for such clarity, it is unclear if the Court will grant cert. Equally unclear is how much it would resolve about the scope of the right of assembly, given that, strictly speaking, McKesson v. Doe would only set forth the conditions under which civil liability can be imposed on a protest organizer—not First Amendment limits on the power to arrest or disperse crowds. My view, however, is that McKesson could clarify a lot more than one might initially imagine.

A summer of discontent—weak and uncertain First Amendment protections

Fueled by frustration with the pandemic and mounting evidence of its disproportionate impact on communities of color, the murder of George Floyd in late May precipitated a two-week period in which the country saw some of the most extensive protesting in U.S. history. A second wave of Black Lives Matter protests for racial justice and police accountability gained national attention in the wake of heavy-handed federal crowd control tactics in Portland in July. 

The vast majority of the demonstrations we have seen this summer are comprised of precisely the type of crowds the First Amendment is intended to protect—impassioned crowds, angry at abuses of governmental power, seeking redress and reform. A minority have devolved into riotous mobs.

Policing the line between constitutionally protected protests and those that are unlawful is unquestionably a very difficult task. Unfortunately, law enforcement does a remarkably imperfect job of distinguishing between the serene, angry, and violent elements of a crowd, particularly when all are present in a single demonstration.

Their efforts are hampered by legal ambiguities about when a “disruptive” protest—one that is inconvenient, loud, angry, even obnoxious—ceases to be peaceable and loses constitutional protection. The problem arises because the term “peaceably” (and its opposite “violent”), like the phrase “freedom of speech,” is not self-defining.

The fairest statement of the law is that while protesters can be subject to reasonable time, place, and manner restrictions, only violence nullifies the protections of the First Amendment. Still, this rule raises more questions than it answers—as we have seen this summer.

Violence, whether by an individual or by several in concert, nullifies the protections of the First Amendment. But what is the requisite level of violence to persons and property to fall out of First Amendment protection? And how prevalent does the violence need to be? Some cases are easy. Early on, several demonstrations descended into extensive looting and burning of police cars. When a crowd engages in widespread lighting public or private property on fire and looting entire blocks of stores—like in Philadelphia on May 30-31—it becomes a mob.

The law gets much murkier, however, in situations that do not rise to  this level of violence. Let’s assume throwing water bottles at police in riot gear constitutes violence against persons. How many individuals have to engage in these activities to justify a constitutional order to disperse the crowd? Must law enforcement remove the offending individuals before taking the extraordinary step of dispersing a crowd full of individuals peacefully exercising their First Amendment rights?

Conversely, it is generally agreed that an unlawful assembly can be dispersed. But what constitutes an “unlawful assembly” for constitutional purposes? Do merely illegal acts render an assembly unlawful and subject to a constitutional dispersal order? Do crowds that do no more than defy time, place, and manner restrictions lose all First Amendment protection? Philadelphia’s Police Commissioner defended her department’s decision to disperse peaceful marchers on a Philadelphia highway on grounds that the crowd had become unlawful once it entered the highway without a permit. While she and the Mayor subsequently walked back their approval of the use of tear gas, their apology is somewhat ambiguous as to whether the dispersal order was itself unlawful.

In sum, despite clear constitutional protection for disruptive protest, ambiguities in the law give rise to colorable arguments justifying the over-policing of crowds this summer—if not the level of force used to disperse or arrest individuals.

McKesson v. Doe—An opportunity to bolster the right of assembly

The Supreme Court can address these issues by granting cert in McKesson v. Doe (5th Cir. 2019). Although McKesson is a case about civil liability, it could clarify, by analogy, the conditions under which it is appropriate to disperse crowds, and limit police power to arrest individuals for public order offenses during demonstrations.

The case arose out of incidents at a Black Lives Matter protest that was allegedly organized by well-known activist, Deray McKesson, in Baton Rouge, Louisiana. Although there is no evidence that the protest writ large descended into violence, a police officer was severely injured by a heavy object thrown by an unknown assailant. The police officer sued McKesson. The Fifth Circuit (initially unanimously) reversed the lower court to hold that McKesson, as an organizer, could be held liable for the violent actions of this unknown individual, despite the absence of a credible allegation that McKesson directed or encouraged that violent act.

The Fifth Circuit reasoned that McKesson lost the protection of the First Amendment because he committed the unlawful act of encouraging protesters to block a highway—an act he should have foreseen would result in violence. McKesson has asked the Supreme Court to reverse and reaffirm precedent, holding that the First Amendment precludes imposing financial liability on protest leaders for injuries inflicted by the uncoordinated, independent violent act of a third party.

If the Court grants cert, I expect it will reverse and reaffirm the holding of NAACP v. Claiborne Hardware Co.—which involved an NAACP boycott in response to the killing of a young African-American man by police. The chilling effects of the Fifth Circuit’s rule are too stark to decide otherwise. Given the dizzying array of reasonable time, place, and manner regulations today, the Fifth Circuit’s principle that a protester loses First Amendment protection when she commits an unlawful act effectively eviscerates First Amendment for protesters—even if limited to contexts where violence is foreseeable. If adopted, the organizers of the march that went sour in Philadelphia could not only be dispersed for failing to have a permit but also subsequently held liable for any injuries to police officers or damage to property perpetrated by third parties—even counter-demonstrators.

A win for McKesson, however, could be an even bigger win for the right of assembly.

First, the central principle in Claiborne Hardware Co. is that civil liability may not be imposed on someone merely because she belongs to a group, some members of which committed acts of violence, absent proof of coordination or incitement. Affirming that “[t]he Constitution does not insulate violence, but it does insulate citizens from responsibility for others’ violence,” (Willet, J., dissenting) would be a big win for protesters as it would clarify that police cannot constitutionally order an entire crowd to disperse simply because a small group threatens or engages in violence.

Second, the Court could use McKesson to affirm that, as with speech, the First Amendment shield only disappears when there is an imminent threat of violence. And the bar for the requisite level of violence is high. This too would be a big win for protesters: Deciding that the “First Amendment only allows civil liability for violent conduct that ‘occurs in the context of constitutionally protected activity’” is a critical step toward deciding that the First Amendment only allows criminal liability for violent conduct that occurs in the context of constitutionally protected activity—a much needed limit on the use of public order offenses to remove protesters from the streets.

Third, the Court could (and should) reject the Fifth Circuit’s suggestion that by violating reasonable time, place, and manner restrictions, McKesson lost the shield of the First Amendment. Fourth, and most ambitiously, McKesson provides an opportunity for a textual turn in First Amendment law. The Court could recognize that the First Amendment explicitly protects public assemblies, a form of conduct. Moreover, the text of the First Amendment makes clear that the question of constitutional protection for an assembly turns on its peacefulness, not its legality. This is not an entirely nitpicky point since the Fifth Circuit sought to thread the line between speech and conduct, arguing that “the basis of potential liability . . . was McKesson’s actions and conduct in directing the illegal demonstration, not his speech and advocacy.”

Finally, McKesson offers an opportunity to reaffirm that political protest and dissent is at the core of First Amendment and our democratic tradition—as Judge Willett’s dissent nicely articulates. The value of such a reaffirmation should not be underestimated. The past four years have witnessed a range of efforts to de-legitimize protests and the press, and have come at a time when both have been exercised for the First Amendment’s core purpose: to highlight the government’s failings, including persistent racism, violations of the rule of law, corruption and mismanagement. The Court should do whatever it can to say, “No.”

Final Thoughts

This summer’s police protests illustrated that, despite the Supreme Court’s historical neglect of the right to peaceably assemble, it still has a huge role to play in modern American politics. McKesson provides the Court an opportunity to reverse course and clarify both the importance and scope of the right to assembly.

Tabatha Abu El-Haj is Professor Of Law at Drexel University Thomas R. Kline School of Law. You can reach her by e-mail at tabatha.abuelhaj at

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