PUBLISHED:April 10, 2020

First Amendment Clinic files amicus brief in U.S. Supreme Court on behalf of First Amendment scholars in support of a Black Lives Matter protest organizer


Leading First Amendment scholars have signed onto the clinic’s brief arguing that a Fifth Circuit ruling, if left standing, could dismantle precedent safeguarding the right to protest.

The Duke Law First Amendment Clinic filed an amicus brief on April 9, 2020 on behalf of leading First Amendment scholars, urging the U.S. Supreme Court to grant certiorari in Mckesson v. Doe, a case involving potential civil liability for an organizer of a Black Lives Matter protest in Baton Rouge, La.

Third-year law students Joseph D’Antonio, Mitchell Menlove, and Kaan Ulgen drafted the brief under the supervision of Professor H. Jefferson Powell, the clinic director, Supervising Attorney Nicole Ligon, and First Amendment Fellow Ian Kalish. Prominent First Amendment legal scholars Floyd Abrams, Erwin Chemerinsky, Walter Dellinger (Duke’s Douglas B. Maggs Professor Emeritus of Law), Geoffrey R. Stone, Nadine Strossen, and Kenneth P. White signed onto the brief.

The brief supports petitioner DeRay Mckesson, a civil rights activist and one of the most prominent leaders of the Black Lives Matter movement. Mckesson helped to organize a civil protest in Baton Rouge in July 2016 at which a police officer was struck by a rock thrown by a lone protestor. The officer subsequently sued Mckesson, arguing that he should be held liable for negligently organizing a violent protest.

The district court granted Mckesson’s motion to dismiss for failure to state a claim. However, the Fifth Circuit reversed and held that the First Amendment did not bar the officer’s negligence claim against Mckesson. Mckesson is now asking the Supreme Court to overturn that ruling, which, if left standing, has the potential to dismantle landmark Supreme Court precedent safeguarding the First Amendment right to protest.

“The rule set down by the Fifth Circuit here has the capacity to chill a large amount of valuable speech,” said D’Antonio. “The right to protest is a time-honored tradition that has important roots in our civil democracy, and it needs to be protected vigorously.”

The clinic’s brief argues that organizers should not be held liable for the actions of others during a protest. It emphasizes the unique and vital role civil protests play in our democratic society, a role that has been acknowledged and protected by the Court as a core First Amendment activity, most pertinently in NAACP v. Claiborne Hardware Co. There, the Court recognized that a protest organizer could not be held liable for the violent actions of another unless the organizer “authorized, ratified, or directly threatened acts of violence” himself. The brief argues that the Fifth Circuit’s decision in Mckesson’s case directly contravenes this precedent. Further, the brief warns that punishing protest leaders in this and similar contexts could vastly deter civil protests that have been an important engine for change in our society.

“One large concern is that, if this sort of liability can be attached to protest organizers, state governments could feasibly use tort law as a backdoor method to silence unpopular or politically inconvenient protests,” said Menlove.

Added Ulgen: “Protest movements do not have endless resources. Forcing organizers such as Mr. Mckesson to litigate for actions of other protestors and show that they were not negligent will either bankrupt movements, cause them to stop organizing, or both. This decision has the potential to stifle protest movements in their crib if it is not overturned.”

A copy of the amicus brief can be found on the website of the Supreme Court.