On August 1, 2026, a dissenting opinion from Fifth Circuit Judge Don Willett and five other judges—Carl Stewart, James Graves, Stephen Higginson, Dana Douglas, and Irma Carrillo Ramirez—criticized the decision to send activist DeRay Mckesson to trial over alleged liability for violence at a Black Lives Matter protest.

The judges highlighted that the Supreme Court has deemed the constitutional issue "undeniably important": whether the First Amendment permits a negligent-protest liability theory that replaces intent with the mere foreseeability of a stranger's violence.

They noted that after a decade of litigation, full discovery, and appeals, all prior obstacles to Supreme Court review have been resolved, including state-law uncertainties that previously prompted vacatur. Despite this, Mckesson faces trial not due to evidence linking him to the assault but because he was a prominent activist who allegedly helped lead demonstrators into a roadway and could have foreseen ensuing disorder.

The dissent referenced the 1982 Supreme Court case Claiborne Hardware Co., which requires proof that a defendant authorized, directed, or ratified specific tortious activity—or that their speech incited imminent lawless action under Brandenburg v. Ohio. The judges emphasized that liability demands a personal nexus between the defendant and the violence, which they argue is not established merely by Mckesson allegedly directing demonstrators into the road.

They further stated, "Civil liability may not be imposed merely because an individual belonged to a group, some members of which committed acts of violence," underscoring the need for specific intent or direct involvement to justify legal sanctions.

An excerpt from the 2023 panel majority opinion, authored by Judge Jennifer Walker Elrod and joined by Judge Grady Jolly, sets forth the First Amendment rule that was the subject of the en banc call.

This case continues to raise significant questions about the limits of protest leader liability and First Amendment protections.

Sources