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12 ¦ JUNE 15, 2020 NEWS

¦ From NATIONWIDE on PAGE 11 2019, the court issued yet another ruling, this time
Kailee Scales, managing director Black Lives because Judge Don Willett, one of the Fifth Circuit
Matter Global Network, also said, “Thousands of judges who ruled earlier, changed his mind.
Americans across the country have already brought “Unquestionably, Officer Doe can sue the rock
about political change by protesting the systemic thrower. But I am unconvinced he can sue the pro-
racism faced by Black Americans. The Supreme test leader,” Willett stated. The Claiborne precedent
Court should make sure that protesters and commu- “foreclosed squarely” the notion that Mckesson
nity organizers are not deterred by baseless lawsuits could be sued, he said.
from the vital work of advocating for Black lives.” “In America, political uprisings, from peaceful
The main Supreme Court precedent that lawyers picketing to lawless riots, have marked our history
for Mckesson are pointing to is NAACP v. Claiborne from the beginning—indeed, from before the be-
Hardware, a 1982 decision that invoked the First ginning,” Willett wrote. “The Sons of Liberty were
Amendment to protect nonviolent protesters from dumping tea into Boston Harbor almost two centu-
being sued. ries before Dr. King’s Selma-to-Montgomery march
Merchants in Claiborne County, Mississippi, sued (which, of course, occupied public roadways, includ-
the NAACP in 1966 for mounting ing the full width of the bloodied
a boycott of white-owned stores Edmund Pettus Bridge).”
that hurt their businesses. Acts of The Supreme Court was sched-
violence also occurred, and the The petition from a Black uled May 15 to consider whether
high court said those who were to take up the Mckesson case, but
harmed by the violence could sue. Lives Matter leader, that was postponed to give the po-
But the organizers of the protest DeRay Mckesson, takes lice officer’s lawyers more time to
could not be sued, the court ruled. on new importance amid respond to Mckesson’s briefs. The
the national protests petition may be considered this
“Through exercise of their First that followed the death month or later in the summer.
Amendment rights of speech, of George Floyd in the
assembly, association and peti- Baton Rouge lawyer Donna
tion, rather than through riot or custody of police in Grodner, who represents the John

revolution, petitioners sought to Minneapolis. Doe police officer, said in her

bring about political, social and brief, “When a demonstration
economic change,” the late Jus- that is lawful and peaceful and
tice John Paul Stevens wrote for thus constitutionally protected (as
the majority. He added, “The right to associate does expression, association, assembly, or petition), trans-
not lose all constitutional protection merely because forms into an unlawful, unpeaceful, and dangerous
some members of a group may have participated in activity ... does the First Amendment protect the
conduct ... that itself is not protected.” leader of that illegal activity from the reasonably
The Claiborne Hardware case became a key prec- foreseeable consequences of his own negligent,
edent at a time when segregationists used litigation illegal, and dangerous activity under ordinary tort
to cripple the civil rights movement. law? No.”
When lawyers for Mckesson countered the officer’s ¦

lawsuit, a federal district judge sided with Mckesson, Tony Mauro, based in Washington, covers the
citing the Claiborne case. The case then went to the U.S. Supreme Court. A lead writer for ALM’s
U.S. Court of Appeals for the Fifth Circuit, which Supreme Court Brief, Tony focuses on the court’s
ruled against Mckesson, finding that the First Amend- history and traditions, appellate advocacy and
ment did not make him immune from being sued. the SCOTUS cases that matter most to business
The appeals court reviewed the case again and litigators. Contact him at [email protected]. On
came to the same conclusion. But in December Twitter: @Tonymauro

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