The Left doesn’t like the U.S. Supreme Court.
It didn’t like that, after President Donald Trump left office, six of the nine justices were appointed by Republicans, and it liked it even less when those justices overturned Roe v. Wade, pointing out that there is no “right” to abortion found in a document written more than 200 years ago. So, it’s spent the last several years waging an all-out smear campaign against the court that sometimes forces its journalists to adopt murky and nonsensical arguments — which is what happened this week.
On Monday morning, visitors to Vox came across this headline:
The Supreme Court effectively abolishes the right to mass protest in three US states
Simultaneously, the New Republic informed its readers in the first paragraph of a breaking news article dedicated to the same topic that “[t]he Supreme Court’s inaction has effectively abolished the right to mass protest across three states, allowing a lower court’s ruling to seemingly infringe upon the Constitution’s First Amendment.” (READ MORE: Bias at CBS News? Believe It.)
What actually happened on Monday was that the U.S. Supreme Court refused to hear Mckesson v. Doe and sent it back to the 5th Circuit Court (which oversees Texas, Louisiana, and Mississippi) to reconsider.
The case dates from 2016 when Black Lives Matter organizer DeRay Mckesson organized a protest in response to the death of Alton Sterling, an unarmed black man killed in a confrontation with police officers in Baton Rouge. The protest did what many BLM protests have done since then: It spiraled out of control and turned into a confrontation between police officers and angry rioters that lasted for days. During the chaos, an unidentified rioter threw a rock at a police officer who has remained anonymous (the court refers to him as John Doe) and caused significant brain damage, among other injuries. (READ MORE: Trump’s Tongue Is Trapped in Our Two-Track Justice System)
Mckesson didn’t throw the rock, but he did organize the protest, so the police officer sued him for negligence (among other things), a charge the 5th Circuit Court decided was merited — twice.
To hear Vox tell the story, you might think the judges on the 5th Circuit have a vendetta against Mckesson and are “engaged in a crusade” against him. The ACLU was no less concerned and argued that the lower court’s decision proposed “a theory under which all protest leaders can find themselves on the hook for an unlawful act they did not intend, committed by an unidentified person they neither knew nor controlled all because they were at the same protest.”
That explanation fails to account for the fact that the 5th Circuit Court threw out most of Doe’s arguments and held that Mckesson wasn’t directly responsible for the act of throwing the rock. The court simply found that Mckesson had organized the protest in “an unreasonably dangerous manner, in breach of his duty to avoid creating circumstances in which it is foreseeable that another will be injured.”
In other words, if you’re organizing a protest and notice that some of the participants are starting to collect frozen water bottles, you should probably discourage them.
As far as Vox is concerned, the issue with SCOTUS’s refusal to hear the case at all is that doing so effectively means that, at least in Texas, Louisiana, and Mississippi, any protest organizer could face “potentially ruinous financial consequences if a single attendee at a mass protest commits an illegal act.” In other words, Americans might think twice about organizing a riot in which things could become violent.
Of course, the U.S. Supreme Court doesn’t see it that way. Justice Sonia Sotomayor (a liberal judge on the court) wrote a statement explaining that Monday’s decision doesn’t necessarily mean that the court agrees with the conclusions of the 5th Circuit Court and recommended that lower courts reconsider the case in light of the recently decided Counterman v. Colorado.
In the majority opinion, which involved the First Amendment rights of a man who had sent “threatening” messages to a woman over Facebook, the court found that the First Amendment “precludes punishment, whether civil or criminal, unless the speaker’s words were ‘intended’ (not just likely) to produce imminent disorder.” (READ MORE: Black Robe Cannot Hide That Juan Merchan Is Deep Blue)
The liberal journalists at Vox and the New Republic jumped the gun a bit. SCOTUS has certainly not abolished the right to mass protests in southern states; if anything, it simply extended the litigation process. Even if the court did decide to hold Mckesson accountable for negligence at the 2016 BLM riot, it wouldn’t have abolished any kind of right. It simply would have affirmed that illegal acts during protests are still illegal acts, and those who encourage or enable them can face consequences.
The people organizing protests in front of Chicago’s International Airport and on San Francisco’s Golden Gate Bridge this week should keep that in mind.
