A lawsuit against a Black Lives Matter activist could chill all of our speech

If democracy is our nation’s engine, then political protest is its gas pedal — and it has been since our founding. Early Americans rose up to protest the tyranny of the Stamp Act and the Tea Act, fighting taxation without representation and planting the seeds of independence. Two decades later, they enshrined the freedom to protest in the First Amendment.

All throughout America’s 250 years, that freedom has given millions the voice to demand change. It spearheaded the fight against segregation. It secured voting rights for women. And today, Americans gather in public parks and city streets for No Kings rallies, the March for Life and countless other political and social causes.

But a lawsuit that has snaked through the courts for eight years threatens our prized freedom to protest, exposing protesters to vast damages for acts they didn’t commit and chilling Americans from making their voices heard.

That should trouble any freedom-loving American.

In 2016, DeRay McKesson joined a protest against the fatal police shooting of Alton Sterling, during which a police officer was hit with a rock. But DeRay did not throw the rock. Nor did he ask anybody to throw rocks or engage in any other violence.

Yet the officer sued McKesson, instead of the rock-thrower. On what basis, you ask? The officer claims he was responsible for organizing the protest.

If you’re wondering whether the First Amendment protects against such a lawsuit, let’s be clear that it does. Nearly 35 years ago, the Supreme Court ruled in NAACP v. Claiborne Hardware that the First Amendment shields protest leaders from lawsuits, absent a few narrow exceptions, resulting from some protestors engaging in violent acts.

That makes sense. After all, given how important the freedom of protest has been to America’s history and advancement, we wouldn’t want to silence political protesters or prevent protests from ever being organized because of the threat of lawsuits.

But after eight years, McKesson still faces a lawsuit for doing no more than exercising his First Amendment rights. Why? A federal appeals court has ruled that he must face trial because he could “reasonably foreseeable” that “organizing the protest” would result in a random protester throwing a rock that hit a police officer.

That standard is called “negligence,” and it is an apt standard for car crashes and botched surgeries. But it has no place when political speech is threatened.

In fact, the Supreme Court recently ruled that the Constitution requires some subjective intent — not mere negligence — to prosecute someone for making a true threat. If that is the case, negligence is nowhere near enough to hold a protest organizer liable for something he didn’t do.

McKesson’s case poses high stakes for freedom of speech. If protesters face six- or seven-figure damage awards for acts they didn’t commit, the inevitable result will be to chill Americans from participating in the very protests upon which our nation is built. And make no mistake — those figures are not hypothetical.

Just consider the protest leaders in Claiborne Hardware, who faced having to pay a judgment over $1 million before the Supreme Court stepped in and upheld their constitutional freedoms.

You might disagree with McKesson’s message, or that of Black Lives Matter, the group he helped lead. That is your First Amendment right, just as much as it is McKesson’s right to protest or even organize a political protest and not be dragged through court for nearly a decade because of someone else’s actions. But when the rights of one are under threat, all our rights are under threat. If McKesson can face years of costly and anxiety-producing court proceedings and liability for protesting, so can anyone.

Don’t let this alarm bell deter you from peacefully protesting. Rather, keep exercising your First Amendment rights with pride and vigor. In a year when we are commemorating our nation’s 250th birthday, using your voice to stand up for the freedom to protest that inspired our founding is a great way to celebrate.

In the meantime, cross your fingers and pray that McKesson finally gets the outcome the Constitution promises.

JT Morris is a supervising senior attorney at the Foundation for Individual Rights and Expression.

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