One of the First Amendment’s bedrock protections for a free press and free expression is the rule that an individual lawfully exercising their constitutional rights can’t be held liable for a stranger’s uncoordinated decision to break the law nearby. As we’ve often emphasized, that rule is a critical safeguard for reporters who attend tumultuous events where violence may break out — political rallies, say, or mass demonstrations — in order to bring the public the news. But a recent order of the U.S. Supreme Court gives reason for concern that that longstanding First Amendment principle may no longer have five votes among the justices.
The case, Mckesson v. Doe, has come before the justices before. In it, a Louisiana law enforcement officer alleges that he was struck by a rock while policing a Black Lives Matter demonstration — but rather than sue the individual who threw the rock, the officer chose to sue activist DeRay Mckesson for organizing the protest in the first place. Under the Court’s 1982 decision in NAACP v. Claiborne Hardware, that should have made for an easy case: Before you can be held liable for another person’s decision to break the law at a demonstration, the First Amendment requires proof that you “authorized, directed, or ratified” the stranger’s violent conduct. By insisting on that evidence of bad intent, the Constitution provides breathing room for lawful newsgathering and expression, ensuring that journalists can go about their jobs at chaotic events without fear that a third-party’s unlawful conduct will be imputed to them.
Remarkably, the U.S. Court of Appeals for the Fifth Circuit allowed Doe’s lawsuit to go forward regardless — even though Doe never alleged that Mckesson intended his injury — on the theory that Mckesson was negligent as to the risk that the protest would turn violent.
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