The Atlantic

A Stunning Vote Reversal in a Controversial First Amendment Case

A Fifth Circuit panel judge has changed his mind about DeRay Mckesson’s liability for violence at a Baton Rouge protest, but Americans’ right to protest is still under assault.
Source: Leah Millis / Reuters

Updated at 10:10 a.m. ET on Wednesday, December 18, 2019.

“In America, political uprisings, from peaceful picketing to lawless riots, have marked our history from the beginning—indeed, from before the beginning,” wrote Judge Don R. Willett of the Fifth Circuit Court of Appeals in a remarkable opinion issued Monday. “The Sons of Liberty were dumping tea into Boston Harbor almost two centuries before Dr. King’s Selma-to-Montgomery march (which, of course, occupied public roadways, including the full width of the bloodied Edmund Pettus Bridge).”

The allusion to unruly protest is not what is remarkable about Willett’s opinion. That sort of talk is black-letter, almost boilerplate judicial language about First Amendment protection for political protests that edge up to, or even into, violence in the streets.

What is remarkable, in which a Louisiana police officer is attempting to impose possibly ruinous tort damages on DeRay Mckesson, a national leader of Black Lives Matter. Doe (who is proceeding under a pseudonym) claims that Mckesson owes him damages because the officer was injured in a protest outside the Baton Rouge Police Department on July 9, 2016. During that protest, someone in the crowd threw a hard object that injured the officer. Mckesson was present that night, but Doe doesn’t claim that Mckesson threw the object; instead, he claims—in defiance of Supreme Court precedent—that Mckesson owes him damages because the civil-rights leader .

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