For more than four years, a rogue federal appeals court has given life to a highly dubious lawsuit targeting DeRay Mckesson, a prominent figure within the Black Lives Matter movement. The United States Court of Appeals for the Fifth Circuit’s decisions would not only strip Mckesson of his First Amendment-protected right to organize mass protests against police violence, it threatens all Americans’ ability to organize any protest.
On Friday, the Fifth Circuit handed down its latest decision in Doe v. Mckesson, the case at the heart of this crusade against the First Amendment. Under the Fifth Circuit’s latest approach, a protest organizer who commits even a minor legal violation — in this case the court faulted Mckesson for leading a protest “in front of the Baton Rouge police station” and for attempting “to block a public highway” — may potentially be held liable for the illegal actions of someone else who attended the protest.
In 2016, Mckesson helped organize and lead a protest near the Baton Rogue Police Department building, following the fatal police shooting of Alton Sterling. During that protest, an unknown individual threw a rock or similar object at the plaintiff in the Mckesson case, a police officer identified in court documents by the pseudonym “Officer John Doe.” Sadly, the officer was struck in the face and, according to one court, experienced “injuries to his teeth, jaw, brain, and head, along with other compensable losses.”
There is no question that whoever threw this object should be held liable for their illegal action. But even Judge Jennifer Elrod, the author of the latest Mckesson opinion, admits that “it is clear that Mckesson did not throw the heavy object that injured Doe.” That should be the end of this case, as the First Amendment provides robust safeguards against holding protest leaders responsible for the actions of a single rogue protester.
Instead, Elrod devises a tortured legal theory that…
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