“Confirmed Judges, Confirmed Fears” is a blog series documenting the harmful impact of President Trump’s judges on Americans’ rights and liberties. It includes judges nominated in both his first and second terms.
What’s at stake in this case?
This involves an ongoing effort to hold a Black Lives Matter protest organizer personally responsible for an act of violence against a police officer carried out by an unknown person at the protest. If the effort succeeds, it would deter people from exercising their First Amendment rights to protest against the government. The March 2026 case is Ford v. McKesson.
What happened in this case?
This is the latest chapter in a case that has been in the courts for many years. In 2016, DeRay McKesson helped organize a protest in front of the Baton Rouge Police Department as part of a string of Black Lives Matter protests across the country concerning abusive police practices. Because the protest was on a public highway in violation of the law, officers were ordered to make arrests. One of those officers, John Ford, was hit and injured by a rock thrown by an unknown protester. Ford sued McKesson for negligence under Louisiana law.
A district court judge dismissed the case under binding Supreme Court precedent protecting the First Amendment. In the 1982 case of NAACP v. Claiborne Hardware, the Supreme Court ruled that a protest organizer can’t be held liable for violence carried out by protesters unless the organizer used words that are “likely to incite imminent lawless action,” or gave someone “specific instructions to carry out violent acts or threats,” or have “authorized, directed, or ratified specific tortious activity.” Since the police officer’s complaint did not contend that McKesson had done any of these things, the district court judge dismissed it.
But he was reversed by a Fifth Circuit panel in 2019. In 2020, Trump judges Andrew Oldham, Kurt Engelhardt, and James Ho cast the deciding votes to deny a full court rehearing of that ruling. The decision was sharply criticized as threatening First Amendment freedoms. Later that year, the Supreme Court vacated the decision over a question of Louisiana law.
The case eventually resumed in the federal courts, addressing the same First Amendment questions as before. Once again, a district court dismissed the lawsuit on First Amendment grounds. And now, once again, a three-judge panel of the Fifth Circuit has reversed that decision.
How did Judge Oldham and the majority rule?
Trump Judge Andrew Oldham provided the deciding vote, joining an opinion written by Reagan judge Edith Jones. They focused on the officer’s allegation that McKesson organized the blocking of the street by protesters. This, according to the majority, made it foreseeable that the police would need to be called to the scene to clear the protesters, and that this could lead to the type of violence that Officer Ford experienced.
What did the dissent say?
Judge Carolyn Dineen King, nominated by President Carter, vigorously dissented. She criticized the majority for focusing on “the wrong lawless action.” The relevant question isn’t whether he intended an unlawful occupation of the highway, she wrote. Instead, the question is whether he intended or risked someone throwing a rock at a police officer who was trying to clear the highway.
She wrote that the opinion Oldham joined “imperils First Amendment liberties.” She explained the danger of letting Ford’s lawsuit proceed without even making him show that it was a protester who threw the rock at him, rather than a bystander or even a counter-protester. This “makes every protest a hostage to the reaction by others.”
Even actions by someone opposed to the protest can lead to civil liability for the protest organizer on the theory that some level of violence was foreseeable. Perhaps worse, “the government can unleash its law enforcement officers, armed with riot gear and today’s decision, upon its citizens, including, as in this case, its dissidents,” and make the protest organizers liable for the violence.
Why is the result harmful?
The decision made possible by Judge Oldham, a potential future Trump Supreme Court nominee, poses a threat to the freedom of speech throughout the Fifth Circuit: Louisiana, Mississippi, and Texas. It is especially dangerous in an era where the administration has engaged in government violence to suppress those who disagree with the president’s policies. It exemplifies the importance of having fair-minded judges who will protect the rights of all people.