In an amicus curiae brief submitted to the Supreme Court of the United States (SCOTUS) on April 9, Professor Tabatha Abu El-Haj and co-authors Timothy Zick of William & Mary Law School and Hyland Hunt of Deutsch Hunt PLLC argue that the Fifth Circuit Court of Appeals decision in Mckesson v. Doe threatens First Amendment rights.

The amicus brief supports the petition for writ of certiorari of the Fifth Circuit Court’s decision in Doe v. Mckesson, which held that Black Lives Matter protest organizer DeRay Mckesson was liable under tort law for violence committed by protest participants.  

The Fifth Circuit Court’s decision holds that Mckesson was not protected by the First Amendment because the protest he led was not peaceful, as a protest participant injured Police Officer Doe. The Fifth Circuit Court suggests that it was reasonable for Mckesson to foresee harm occurring as part of the protest. Therefore, Mckesson knowingly assembled an unpeaceful protest and is not protected by First Amendment rights.

However, a foreseeable risk of violence accompanies most, if not all, protests. Therefore, the Court’s decision effectively expands tort liability to such an extent that it chills the right to freedoms of assembly and speech, according to the brief’s authors. Under this liability standard, protest organizers are held liable for violence they do not lead, incite, or condone, and “nearly endless opportunities” to sue protest organizers arise.

While SCOTUS has yet to respond to the petition for a writ of certiorari, it has received seven amicus curiae briefs in support of the petition for writ of certiorari, including amicus briefs from The Rutherford Institute, the National Association for the Advancement of Colored People, and Black Lives Matter Global Network, Inc. On April 13, 2020, Officer Doe declined to file a response to the petition unless compelled by SCOTUS.