Fifth Circuit Rules Against Civil Rights Activist DeRay Mckesson in Long-running Protest Rights Case

The decision in Ford v. Mckesson endangers First Amendment protections for protest attendees, leaders, and organizers

March 19, 2026 1:45 pm

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NEW ORLEANS 鈥 The Fifth Circuit ruled today in Ford v. Mckesson that a lower court erred in finding that prominent civil rights activist Deray Mckesson cannot be held liable for unlawful conduct of other people attending the protest he was at in 2016. The protest was held to celebrate the life of Alton Sterling, a Black resident who was shot and killed by two on-duty police officers. No jury has yet heard the case or determined if Mckesson is liable, but today鈥檚 decision opens the door for a trial to proceed.

鈥淭his decision is disappointing not only for me personally, but for each and every person who cherishes the right to protest,鈥 said DeRay Mckesson. 鈥淭he purpose of this lawsuit was not just to silence me, but to make people afraid to show up to protests because they might get sued for someone else鈥檚 behavior. That is an affront to our First Amendment freedoms, and even after nearly ten years, I will not stop fighting this ludicrous suit in order to protect all of our rights to protest, organize, and imagine a world beyond policing.鈥

The plaintiff, a former police officer, was hit by a rock-like object at the protest and argues that Mckesson, who was also present but did not throw the object, should be liable for the injury. In 2024, a lower court granted summary judgment to Mckesson and found that the plaintiff failed produce enough evidence to establish that Mckesson planned the protest or caused the officer鈥檚 injuries.

鈥淭his decision is wrong on the facts and on the law,鈥 said Vera Eidelman, senior staff attorney with the ACLU鈥檚 Speech, Privacy, and Technology Project. 鈥淥pening the door for a jury to hold our client liable for someone else鈥檚 behavior at a protest would make any person think twice before attending a protest. Allowing a trial to move forward on such a thin record seriously threatens our First Amendment rights to organize and attend protests without fear of burdensome litigation. This battle is not over, and we will continue to seek justice for our client and for protesters everywhere.鈥

Since 2016, this case has been at the Fifth Circuit, the Louisiana Supreme Court, and the U.S. Supreme Court on the question of whether the theory at its center鈥攖hat protest organizers can be liable for the unlawful acts of a third party at a protest not because they intended the illegality but because they 鈥渘egligently organized鈥 the protest such that the illegality was foreseeable鈥攙iolates the First Amendment.

After the Fifth Circuit accepted the theory, the Supreme Court declined to again hear Ford v. Mckesson in April 2024. Despite the Court鈥檚 denial of the cert petition, Justice Sonia Sotomayor wrote a statement emphasizing the Court鈥檚 2023 decision in Counterman v. Colorado, which held that negligence can never be the proper standard when it comes to political speech and that intent is necessary for incitement, should govern 鈥渁ny future proceedings in this case.鈥

The case then returned to district court, where Mckesson moved for and won summary judgment. Mckesson argued that the theory continues to violate the First Amendment and that, even if it is viable, Ford failed to meet his burden of proving the facts at the center of the case.

Mckesson is represented by David Goldberg, counsel of record on Mckesson鈥檚 legal team and attorney with Donahue, Goldberg & Herzog; the 桃子视频; and the 桃子视频 of Louisiana.


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