VOL. I · OCT. 17, 2026 ● NO. 07 ● FREE SPEECH & THE FIRST AMENDMENT
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The free-speech desk — the First Amendment, censorship, and the right to be heard, tracked ruling by ruling across the fifty states.
Protest Rights
Dissenting Judges Urge Supreme Court to Shield Protest Leaders
After the Fifth Circuit let a negligence suit against activist DeRay Mckesson proceed, six dissenting judges pressed the Supreme Court to decide whether the First Amendment bars such protest-leader liability.
Demonstrators marching with signs at a street protest, illustrating the assembly rights at stake in the Mckesson litigation. — AI-generated illustration
As of August 2026, the long-running case against Black Lives Matter organizer DeRay Mckesson remains a flashpoint for protest rights. The Fifth Circuit allowed a theory holding Mckesson potentially liable for an injury inflicted by an unidentified attacker during a 2016 demonstration, and six judges dissented from the denial of rehearing.
The suit was brought by an officer hurt when someone threw an object at a protest Mckesson helped lead. The Fifth Circuit's negligence theory would let organizers be sued for creating allegedly dangerous conditions, even without directing or inciting any violence.
Dissenting judges, led by Judge Don Willett, warned this creates a "negligent protest" doctrine that chills political assembly. They urged the Supreme Court to take the case and reaffirm robust First Amendment protection for demonstration leaders.
The Supreme Court previously vacated an earlier ruling and returned the case for reconsideration. The renewed cert push keeps a central question unresolved: when, if ever, can a protest organizer be held financially responsible for a stranger's violence.
6
Dissenting judges
2016
Year of protest
Pull quote
— Source
Video caption
How the case moved
2016
An officer is injured at a Baton Rouge protest Mckesson helped lead.
2020
Supreme Court vacates a Fifth Circuit ruling and remands.
2023
Fifth Circuit panel again allows the negligence theory to proceed.
AUG 2026
Six judges dissent from denial of rehearing and back a cert petition.
✓ Fact check
Claim
“Protest organizers are automatically liable for any violence that occurs at their demonstrations.”
Reality
The First Amendment generally protects organizers from liability for others' violence absent authorization or incitement; the Mckesson theory remains contested and unresolved.
§
Legal References
Bluebook citation · cases, statutes & the record
Primary legal authority cited in this report. Links go to the public record where one exists.
¶
Academic References
ABA / law-review style · secondary scholarship
Secondary scholarship that informs the analysis.
[1]
Reference text
Author bio
Source: Reason (Volokh Conspiracy)
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