In the U.S. Supreme Court’s decision earlier this month declining to hear arguments in a case about the liability of protest organizers for the behaviors of people who show up to a protest, it raises concerns about the ability to organize around a cause and mobilize for that cause.
The case of Mckesson v. Doe was brought against prominent Black Lives Matter activist DeRay Mckesson by a Baton Rouge, La., police officer who was injured during a 2016 protest Mckesson organized in the aftermath of the police shooting death of Alton Sterling. During the protest, someone (not Mckesson) threw an object at the officer’s face, causing injuries. The 5th Circuit Court of Appeals, presiding over Louisiana, Mississippi and Texas, ruled that protest leaders can be held liable for unlawful acts committed by others at events they have organized, regardless of whether the organizers incited, authorized, or sanctioned those acts. (The Supreme Court’s decision in Counterman v. Colorado affirms that the First Amendment prohibits holding people liable for negligence when it comes to speech, and that intent is the standard for incitement, according to the ACLU. The Counterman decision was filed nine days after the appellate court’s decision.)
Protesting already comes with risk and tension — as we see most recently with Palestinian solidarity demonstrations at college campuses across the country — and this added concern can heighten some of the fear around organizing and participating in social movements. Still, protests are effective and even foundational to American history and progress. In her book, “The Advantage of Disadvantage: Costly Protest and Political Representation for Marginalized Groups,” UC San Diego political science professor LaGina Gause explores the ways that protesting can influence political representation and how marginalized groups have been able to benefit from this kind of collective action. She took some time to talk about some of the ways that this case intersects with her work researching this topic. (This interview has been edited for length and clarity. )
Q: What does this case, Mckesson v. Doe, bring to mind for you as it relates to your work and research around protests?
A: One thing it brings up is, related to my book, how the consequences of protests are leveraged differently on different types of populations, where you don’t see similar types of legal routes being pursued, depending on who’s protesting. A tactic like this is something that you saw used to suppress a lot of 1960s and ‘70s protests, Civil Rights Movement protests, as well, where there are attempts to make it really difficult for people to want to protest because they’re afraid of receiving similar types of reactions where you’re now being criminalized for things that you didn’t actually do, or even intend to happen. In a lot of ways, this is not just about DeRay, but also trying to discourage future people from protesting about similar types of things.
Q: These kinds of public demonstrations have a long history in the exercising of American democratic rights. Can you talk a bit about this history of protesting in the U.S.? How it has taken shape and evolved over the years?
A: One thing that we often praise and hold as very endearing about U.S. history is how this country was founded from acts of protest, thinking about the Boston Tea Party, a lot of the New England protests in opposition to British rule in the American colonies, and how that was very foundational to U.S. politics. In thinking about academic scholarship that talks about protests of the 1960s and ‘70s — yes, the Black Civil Rights Movement, but also thinking about anti-war protests, Chicano protests — and a lot of what we know about protests, a lot of scholarship and academic research has been based on understanding these more leftist types of protest movements. I define protests as any time people show up in public, as a group, to express discontent. If you think about that more expansive definition of protest, you can think of the lynching movement as a protest movement, and then in response to that, the anti-lynching as counter protests. The way that there were all of these pushbacks against different groups throughout society being given access to voting, or access to civil rights and civil liberties. I think, more recently, that we’ve been paying more attention to more conservative-led protests — thinking about Jan. 6, or the Proud Boys, or Charlottesville — but I think it’s more that people are paying more attention to those and classifying those as protests in the same way that we’ve seen there are protests for more expansive rights for marginalized groups. Protests have been very foundational to a lot of things that happen, both in expanding rights, but also restricting rights, since the foundation of this nation. The way that we think about “good protests” and “bad protests,” sometimes relates more to how much people agree or disagree with that group’s desire to, or the fact that they are actually, expressing their frustrations in public or not.
Q: What have you found about the effectiveness of protesting? Can you share some examples of its effectiveness, particularly as it relates to cases where there are efforts to effectively discourage protesting?
A: More historically, thinking about efforts to discourage protests, we talk a lot about Selma [the 1965 march from Selma to Montgomery, Ala., to petition for voting rights for Black people, which was met with a level of violent resistance resulting in one of the days of the march labeled as “Bloody Sunday”]. The fact that you had people trying to cross a bridge, being met with very brutal police reactions, or of youth in Greensboro at the sit-in being met with violence for sitting at a counter [the 1960 sit-in at a Woolworth’s lunch counter, organized by students at North Carolina Agricultural and Technical College in Greensboro, N.C., to protest segregated, unequal services]. Similar things were happening in Louisiana, or the fire hoses being used against children at protests, or the famous “Letter from Birmingham Jail” and Martin Luther King Jr. showing up to a protest. While he was peacefully arrested, it’s not inexpensive to be arrested for a protest and have to pay bail and have to deal with the legal repercussions of showing up to court and all those types of things. Even more recently, thinking about the reactions to protests going on at Columbia right now, where students are being arrested for peaceful demonstrations and the reaction of law enforcement not d with the school. There is the use of tactics to not only address the people who are protesting, but people who are there to figure out what’s going on and how your presence there might lead you to even be arrested. Or, students who are being kicked out of school and out of their dorms and facing other types of consequences for engaging in peaceful (perhaps unlawful, I guess against school code) occupying spaces that are supposed to be public. These tactics are definitely meant to not just address people who were actually there, but also people who might want to because they’re sympathetic to the cause.
What I found is that there are certain types of groups who tend to face more penalties when they try to protest in public, and the intention of those penalties are meant to persuade people. When groups are willing to protest publicly, despite knowing that they’re likely to receive harsh consequences for their protest, sometimes it actually leads to more policy responsiveness, or at least, some policy responses where you might not otherwise see concessions from an institution or government, partly because of the fear of public repercussions. The longer the protests happened, the more time people had to ask questions about why people were protesting, getting more information about it, leading them to, perhaps, be more sympathetic than they might have been to the cause that protesters are talking about if that protest had not happened.
Also, partially because groups who were willing to face those types of consequences, well aware that they might occur, tend to do so because they really care about the cause. It’s really hard to imagine someone facing those types of extreme consequences if they didn’t care about the issue, which in some ways might inform people to want to represent the issues important to their constituents. That signal of, “I’m willing to speak up about this, despite knowing that I might face harsh consequences,” suggests that, “This is an issue I should be paying attention to. Perhaps it’s because I didn’t know that this was that important to you and now that I see that you’re willing to do this, I want to learn more, I want to represent these issues.” It could also be, and this is the argument that I made more in the book, it’s a politically expedient way to represent groups that you previously, maybe, didn’t expect were that concerned about an issue. Now that you see how motivated they are to seek that representation, they might also be motivated in ways that could affect your re-election. They might decide not to vote for you, or to another candidate in ways that could cost you your re-election. So, being more concerned because you want to maintain your livelihood as an elected official, you start representing people for issues that, perhaps, you knew were important to them, but you didn’t know how important to them it would be.
Q: One of the prominent concerns in this case focuses on how it has the potential to suppress First Amendment rights to freedom of speech and assembly by introducing this fear of liability for the actions of other participants that organizers did not encourage, incite, or authorize. In our previous conversation in 2022, you talked a bit about how characterizing protests as violent can suppress participation in this kind of civic action. Can you revisit that for us here?
A: Yeah, I think part of it is, if you can paint a crowd as being violent, then it justifies police action to quell violence, right? People are OK with police being aggressive toward people who are behaving in ways that they are uncomfortable with.
It can also make people afraid to show up because they don’t want to be caught up in violence, concerned about the ways that they might be harmed physically because of their presence at an event that they didn’t think would be violent. Some people take their children to a protest, but you don’t want to take your child to a protest when you think the people who are protesting are going to engage in violent behaviors, so if you can paint someone as being violent, that could reduce the number of people who would attend, but also reduce the number of people who will be outraged by actions to suppress the protest event.
If this is allowed to continue to happen, it could also result in people showing up to the event for the purpose of making violence happen. In some of the 2020 protests, even in San Diego, there were places where there were Black Lives Matter protesters and media reports said counter protesters showed up and started smashing windows. It wasn’t the people actually sponsoring the event, it was the people who showed up wanting to condemn the event and make it seem like the protesters are more violent than they are. The way this case seems like it is set up is that, regardless of whether the people who were there were ing what DeRay was wanting to protest for (they might have been in opposition to him and the movement), the fact that they became violent could also be something that he is given consequences for. It’s also a way that it’s not just suppression from state actors, but other people who are realizing, “Hey, I can show up and throw something at a cop, not even be d with their protests, but now the cops are reacting because they’re like, ‘OK, people are getting aggressive, we have to shut this down,’” and the whole event is shut down because of someone not even d with the issues being protested about, trying to sow violence. Some of the reports happening around Columbia seem to be that there are some people who are questioning some of these stories of people who got violent, asking, “Who are these people? Were they even Columbia students? Were they sympathizers, or even people who didn’t the issue just trying to make the event seem more aggressive than the students are intending it to be?” That room for chaos creates opportunities for people to cast doubt on the protesters’ intentions and their motives and tactics in ways that might stoke more opposition and more repression.
