Supreme Court rejects 1st Amendment appeal from Black Lives Matter activist DeRay Mckesson

WASHINGTON – The Supreme Court on Monday let stand a lower court’s ruling that a Black Lives Matter protest organizer can be sued by a police officer injured by an unknown assailant, a decision affecting the First Amendment right to protest.

The court turned down an appeal from DeRay Mckesson, a Black Lives Matter activist, who said he should not be held personally liable for the assailant’s actions.

Justice Sonia Sotomayor wrote that the denial is not an expression of which side has the better case. Instead, Sotomayor said the appeals court in Louisiana should take into account a Supreme Court decision issued in a different case, Counterman v. Colorado, that could impact this one.

"I expect them to give full and fair consideration to arguments regarding Counterman's impact in any future proceedings in this case," Sotomayor wrote.

The 5th U.S. Circuit Court of Appeals in New Orleans last year said the injured officer has a plausible argument that Mckesson ran the protest in a way that made it likely there would be a violent confrontation with police.

Lawyers for the American Civil Liberties Union, which is defending Mckesson, argued the appeals court’s decision violates the First Amendment and a 1982 Supreme Court decision about damages caused during boycotts of white merchants led by the NAACP.

In a supporting brief, the NAACP said that throughout the Civil Rights Movement, the court rejected attempts by segregationists to suppress political activity through criminal charges and civil suits.

The appeals court decision, the NAACP said, “invites harassment and silencing of today’s civil-rights activists and leaders.”

After the appeals court ruled, the Supreme Court decided a different First Amendment case about a man sentenced to more than four years in prison in Colorado for sending threatening Facebook messages. The court said prosecutors used too tough a standard to convict Billy Counterman. Prosecutors, the justices said in a 7-2 decision, must show a defendant acted recklessly, meaning the person "disregarded a substantial risk that his communications would be viewed as threatening."

Mckesson had asked the Supreme Court to confirm that that decision meant the suit against him could not move forward.

"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 in Mckesson's claim," Sotomayor wrote. "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," Sotomayor wrote.

This was the second time the Supreme Court has gotten involved in Mckesson’s case.

In 2020, the court said the appeals court wrongly decided Mckesson could be sued without a clear understanding of Louisiana law. They sent the case back for further review.

After completing that review in conjunction with the Louisiana Supreme Court, a split three-judge panel of the 5th Circuit said the lawsuit could proceed.

Mckesson rose to prominence as an activist in the BLM movement during protests in Ferguson, Mo., following the August 2014 shooting death of Black teen Michael Brown by a white police officer.

In 2016, the shooting death of Alton Sterling by a white police officer triggered weeks of protests across the U.S.

During protests in Baton Rouge, La., an officer − identified in the court filings as John Doe − was struck in the face by a rock. He suffered injuries to his brain, jaw and teeth.

The officer’s suit against Black Lives Matter was tossed out on the theory that BLM is a social movement and cannot be sued.

He’s seeking damages against Mckesson on the theory that he “knew or should have known … that violence would result.”

This article originally appeared on USA TODAY: Supreme Court 1st Amendment case from BLM activist DeRay Mckesson