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In 2016, civil rights activist Deray Mckesson was sued by an unnamed Baton Rouge police officer for injuries sustained during a protest organized by Mckesson. The officer claimed that a third party at the protest threw an object at him, leading to injuries including knocked-out teeth and a brain injury. The officer argued that Mckesson should have known that the protest would turn violent based on previous incidents involving Black Lives Matter protests.

The case has gone through several rounds in lower courts, with the Fifth Circuit recently ruling that the case could proceed. The court stated that Mckesson had directed tortious activity and incited violence by organizing and directing the protest in a manner likely to lead to a violent confrontation with police. The American Civil Liberties Union, representing Mckesson, argued that the claims against him violated his First Amendment rights and that the lower court’s decision could chill protected First Amendment activity nationwide.

Despite these arguments, the Supreme Court decided not to take up Mckesson’s case. Justice Sonia Sotomayor, in a separate opinion respecting the denial, noted that the high court’s recent decision in Counterman v. Colorado should influence how lower courts handle Mckesson’s case. Sotomayor emphasized that the Fifth Circuit did not consider Counterman when issuing its opinion, but that lower courts should consider its impact in future proceedings related to Mckesson’s case.

The rejection of Mckesson’s appeal raises questions about the limits of liability for organizers of protests and demonstrations. The case also highlights the tensions between free speech rights and the responsibility of organizers to ensure safety and non-violence at such events. The Supreme Court’s decision not to hear the case leaves the Fifth Circuit’s ruling intact, potentially setting a precedent for cases involving the liability of protest organizers for actions taken by third parties during demonstrations.

Moving forward, the implications of this case could have far-reaching effects on the rights of individuals to organize and participate in protests. With the court’s refusal to hear Mckesson’s appeal, the legal landscape surrounding protests and demonstrations may shift, potentially placing greater responsibility on organizers for the actions of others during such events. This case underscores the complex intersection of First Amendment rights, personal liability, and the role of courts in balancing these considerations in cases involving public protests and demonstrations.

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