The Supreme Court has routinely held that participants in nonviolent First Amendment activities, such as boycotts and protests, are constitutionally protected from civil lawsuits for the consequences of those activities. In the 1982 case NAACP v. Claiborne Hardware Store, the justices considered a lawsuit brought by white merchants in a Mississippi town who had been boycotted by Black civil rights groups during disputes over racial integration and police violence. The high court ultimately ruled that the First Amendment barred such lawsuits, especially against nonviolent participants.
“The taint of violence colored the conduct of some of the [defendants],” Justice John Paul Stevens wrote for the court, referring to sporadic violent acts that had occurred during protests to enforce the boycott. “They, of course, may be held liable for the consequences of their violent deeds. The burden of demonstrating that it colored the entire collective effort, however, is not satisfied by evidence that violence occurred or even that violence contributed to the success of the boycott.”
The Fifth Circuit Court of Appeals, which ranks as among the most conservative courts in the country, took a different approach from the lower court. Two members of the three-judge panel concluded that Mckesson was in fact liable under Louisiana law for the officer’s injuries. Mckesson appealed that ruling to the Supreme Court, and in 2020, the justices summarily reversed the Fifth Circuit’s ruling. The high court concluded that the panel had erred by deciding complicated questions on Louisiana tort law without certifying the questions to the state Supreme Court first, ordering them to do so.