Is it illegal to protest in Texas? Fact-checking false claims
The claim: It’s now illegal to protest in Mississippi, Louisiana and Texas
An April 16 Instagram post (direct link, archive link) includes a screenshot of a post on X, formerly Twitter, that claims residents of certain states no longer have a First Amendment right.
“Hi just letting you know it’s now illegal to protest in Mississippi, Louisiana and Texas,” reads the post, which is a response to a Vox News article on the topic. “This is not good.”
The Instagram post received more than 70,000 likes in 10 days. Other versions of the claim spread widely on X.
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Our rating: False
The First Amendment guarantees Americans the right to protest. The claim is a mischaracterization of a case in which an appellate court ruled a protest organizer could be held liable for an attendee assaulting a police officer. The case did not ban protesting.
Protesting remains protected, but ruling raises concerns, expert says
The image in the Instagram post includes a screenshot of an X post by Vox News, which reported on the Supreme Court’s decision not to hear the Louisiana-based court case Mckesson v. Doe. But even that article acknowledged the case revolves around liability, not the right to protest.
“There’s nothing about this case … that actually made protesting illegal,” said Mississippi College law professor Franklin Rosenblatt.
The case surrounds a complaint from a Louisiana police officer, referred to as John Doe, who said an unidentified protester threw an object at him during a 2016 protest over the fatal police shooting of 37-year-old Alton Sterling, a Black man from Baton Rouge, Louisiana, according to court documents.
The officer sued protest organizer and Black Lives Matter activist DeRay Mckesson on the basis that he "knew or should have known that the police would be forced to respond to the demonstration, that the protest would turn violent and that someone might be injured as a result."
The 5th Circuit court, which has jurisdiction over Louisiana, Mississippi and Texas, found Mckesson could be held liable for the officer's injuries if he was proven to have been negligent. But it did not ban protesting or say organizers would always be held responsible.
“Our limited holding guarantees only that Doe may proceed to discovery on his negligence claim,” the court said. “It does not guarantee that he will prevail on that claim.”
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The Supreme Court denied Mckesson’s petition to hear the case in April, though Justice Sonia Sotomayor said future proceedings in the case should bear in mind the court’s 2023 decision in Counterman v. Colorado. In that case, the court found that a person can't be punished for incitement "unless the speaker's words were intended – not just likely – to produce imminent disorder."
Claims that the Mckesson case bans protests in three states is "irresponsible," particularly in light of pro-Palestinian protests sweeping college campuses around the nation, said University of Texas at Austin law professor Steven Collis, who is also director of the university's Bech-Loughlin First Amendment Center.
Americans have the right to peacefully protest under the First Amendment, but Collis said the government can limit that right by imposing reasonable time, place and manner restrictions.
The 5th Circuit court said protest organizers can't be held liable for attendees' actions as long as they maintained “minimally acceptable standards of care,” meaning they’ve made an effort to ensure a safe and peaceful protest, Collis said.
While it is yet to be seen which side will prevail, University of Texas School of Law professor Tara Leigh Grove said the 5th Circuit ruling does provoke "real and important" questions about the future of protesting in those states.
“There are reasons to be concerned about the decision, even if the protest organizer wins this case,” Grove said. “The fact that you can be sued at all could deter people from being willing to organize protests going forward.”
USA TODAY has debunked an array of false claims surrounding protest movements, including that a flyer saying “rape is resistance” was distributed at Columbia University protests, that University of Pennsylvania students chanted “We want Jewish genocide” at a pro-Palestinian protest and that Columbia University canceled all in-person classes through the end of the semester because of campus protests.
USA TODAY reached out to users who shared the post for comment. One responded but did not provide evidence to support the claim.
Our fact-check sources:
Steven Collis, April 29, Phone call with USA TODAY
Franklin Rosenblatt, April 26, Phone call with USA TODAY
Tara Leigh Grove, April 26, Phone call with USA TODAY
ACLU, April 22, The Supreme Court Declined a Protesters’ Rights Case. Here’s What You Need to Know.
Courthouse News Service, April 15, BLM protest organizer held liable for officer’s injuries fails to earn Supreme Court review
SCOTUSblog, April 15, Court declines to intervene in lawsuit against Black Lives Matter organizer
Supreme Court, April 15, DeRay Mckesson v. John Doe
Supreme Court, June 27, 2023, Counterman v. Colorado
Court of Appeals for the Fifth Circuit, June 16, 2023, Appeal from the United States District Court for the Middle District of Louisiana No. 17-30864
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This article originally appeared on USA TODAY: False claim it's illegal to protest in Texas, Mississippi | Fact check
