A federal appeals court — one dominated by MAGA-aligned judges who routinely read the law in ways that even the conservative Supreme Court finds untenable — has spent the last half-decade harassing DeRay Mckesson, a prominent civil rights activist and an organizer in the Black Lives Matter movement, Vox reports. As part of this crusade, two Fifth Circuit’s judges effectively eliminated the First Amendment right to organize a protest in a case known as Doe v. Mckesson. Mckesson’s case has already been up to the Supreme Court once, and the justices strongly hinted in a 2020 opinion that the Fifth Circuit’s attacks on Mckesson’s First Amendment rights should end — labeling this case “fraught with implications for First Amendment rights.” The Fifth Circuit did not take the hint, issuing a new opinion last July reaffirming its attack on First Amendment-protected political protests.
Now the case is before the Supreme Court again, and Mckesson’s lawyers want the justices to restore the First Amendment as fast as they possibly can. In 2016, Mckesson helped organize a protest near Baton Rouge’s police department building, following the fatal police shooting of Alton Sterling in that same Louisiana city. At some point during that protest, an unknown individual threw a rock or some other hard object at a police officer, identified in court documents by “Officer John Doe.” Sadly, the object hit Doe and allegedly caused “injuries to his teeth, jaw, brain, and head, along with other compensable losses.” Judge Jennifer Elrod, the author of the Fifth Circuit’s most recent opinion targeting Mckesson, admits that “it is clear that Mckesson did not throw the heavy object that injured Doe. Nevertheless, Doe sued Mckesson, claiming that, as the organizer of the protest where this injury occurred, Mckesson should be liable for the illegal action of an unidentified protest attendee. That is not how the First Amendment works. The Supreme Court held in NAACP v. Claiborne Hardware (1982) that “civil liability may not be imposed merely because an individual belonged to a group, some members of which committed acts of violence.”