The Supreme Court on Monday declined to hear an appeal from Black Lives Matters organizer DeRay Mckesson, letting stand a lower court’s decision that some critics fear could wind up limiting the First Amendment rights of Americans to organize protests against the government and police.

The upshot is that Mckesson’s case will return to a lower court for further review.

There were no noted dissents but Justice Sonia Sotomayor wrote separately and said that lower courts would be able to take into account a separate First Amendment decision from the court last term that could work in Mckesson’s favor.

The Baton Rouge protest at issue in the case followed the 2016 killing of Alton Sterling, a Black resident shot and killed by police. Since then, protests erupted in cities across the nation – some of which turned violent – in response to the killing of George Floyd by Minneapolis police in 2020.

Lawyers for an officer injured in the Baton Rouge incident argued that Mckesson planned an unlawful protest and that the violence was foreseeable. The First Amendment, the lawyers argued, does not protect against damage claims if an organizer’s actions are “negligent, illegal and dangerous.” The officer lost teeth when the object was thrown, his lawyers said, and suffered injuries to his “brain and head.”

Mckesson relied heavily on a major Supreme Court decision from 1982 that is tied to the Civil Rights Movement. In that case, a unanimous court limited liability for protest organizers in similar situations. The decision reversed a Mississippi Supreme Court ruling that Charles Evers, a well-known civil rights activist, could be held liable for damages during a 1966 boycott of White merchants.

The unnamed officer in the current case countered that precedent shouldn’t stop the appeal because the violence that took place in Louisiana was “reasonably foreseeable” and was a consequence of Mckesson’s “own negligent, and illegal activity.”

The Supreme Court had considered the case before. In an unsigned opinion in 2020, the justices sent the matter back to appeals courts to review the Louisiana law, declining to reach the First Amendment questions. The legal questions were reconsidered and Mckesson still lost.

Last year, the US Court of Appeals for the 5th Circuit sided again with the officer, who is using a pseudonym, John Doe.

“This case would be different if all Mckesson had done was organize a lawful protest, and if an unidentified protester had nonetheless assaulted Doe,” the majority 5th Circuit opinion read. “But that is not what Doe alleges happened. Rather, Doe alleges that Mckesson organized and led the protest in such a manner that his actions ‘were likely to incite lawless action.’”

Writing in partial dissent, US Circuit Judge Don Willett said that the majority’s position would “reduce First Amendment protections for protest leaders to a phantasm, almost incapable of real-world effect.”


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