How have federal appellate courts treated organizer liability for violence at protests after the Fifth Circuit’s McKesson decision?
Executive summary
Federal appellate treatment of organizer liability split sharply after the Fifth Circuit embraced a novel “negligent protest” theory in Doe v. Mckesson, holding that a protest leader can be sued in negligence for violence by third parties even absent intent to cause that violence [1] [2]. That view has provoked pushback from First Amendment advocates, mixed decisions in other forums, and ultimately left an unsettled circuit landscape after the Supreme Court declined immediate review in 2024 while signaling doctrinal tensions with later decisions emphasizing intent [3] [4].
1. The Fifth Circuit carves out a negligence path to liability
Beginning with its multi-opinion line in Mckesson, the Fifth Circuit concluded that Officer Doe plausibly alleged that DeRay Mckesson “organized and directed” the Baton Rouge demonstration in a way that created an unreasonable risk of violence, and thus could proceed on a negligence theory even though Mckesson neither directed nor intended the particular assault [1] [2]. The court repeatedly framed the claim as one about ordinary tort duties and foreseeability under Louisiana law, not as direct authorizing or incitement, and defended the view that state tort law can impose such liability consistent with the First Amendment [1] [5].
2. National backlash and doctrinal alarm from First Amendment scholars
Civil liberties groups, scholars, and amicus brief-writers warned that the Fifth Circuit’s approach departs from NAACP v. Claiborne Hardware and risks chilling protected advocacy by treating mere negligence as sufficient to punish protest leaders for third-party violence, a critique repeatedly aired in filings and commentary [5] [6]. Commentators argued that allowing negligent-protest suits could expose organizers to “ruinous financial liability” for spontaneous acts by attendees and incentivize the suppression of controversial demonstrations [7] [3].
3. The Supreme Court’s non-intervention left the Fifth Circuit rule intact but unsettled
When the Supreme Court declined to grant certiorari in 2024, it left the Fifth Circuit’s ruling in place for that circuit, prompting immediate statements from the ACLU and others noting that the decision would remain binding in Louisiana, Mississippi, and Texas absent future review [3] [8]. Justice Sotomayor’s statement, and later commentary, pointed toward a developing conflict with subsequent high-court precedent emphasizing a requirement of intent for speech-related sanctions, indicating the issue was not doctrinally settled [4] [9].
4. Countervailing developments in other courts and in the district court record
Other forums have reacted differently: the Louisiana Supreme Court—on certification questions—indicated state tort law could recognize negligent-protest claims, which fed the Fifth Circuit’s pathway, while later district-court proceedings and advocacy emphasized that the Supreme Court’s Counterman decision suggests negligence is too low a bar when First Amendment interests are implicated [6] [10]. The ACLU and advocates successfully argued in some proceedings that Counterman’s emphasis on subjective intent undermines negligent-protest liability under the First Amendment, producing conflicting rulings beneath the appellate level [10] [4].
5. What appellate practice looks like now: fragmented, fact-bound, and regionally confined
As a result, federal appellate treatment is fractured: within the Fifth Circuit the negligent-protest theory survives as a plausible claim on pleadings and under state tort certification, while elsewhere the constitutional argument that negligence cannot substitute for intent when restricting speech-based conduct has persuasive force and has led to different outcomes and calls for certiorari [1] [3] [4]. The dispute thus remains heavily fact-specific—hinging on organizers’ actions, state-law duties, and whether courts treat the claim as tort or speech-regulating doctrine—leaving no uniform nationwide rule from the federal appellate courts to date [5] [9].
6. Stakes and likely next steps in the litigation landscape
Because the Fifth Circuit’s decision applies only within its jurisdiction, and because commentators predict both chilling risks and state-law defenses, the question is likely to return to higher courts: either the Supreme Court will squarely resolve whether negligence can ground liability for protest organizers in light of Claiborne and Counterman, or divergent circuits will force resolution by creating a circuit split; until then appellate treatment will continue to oscillate between enforcing negligent-protest theories and insulating protesters with intent-based First Amendment protections [3] [4] [5].