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The Supreme Court effectively abolishes the right to mass protest in three US states

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The Supreme Court effectively abolishes the right to mass protest in three US states

The Supreme Court announced on Monday that it will not hear Mckesson v. Doe. The decision not to hear Mckesson leaves in place a lower court decision that effectively eliminated the right to organize a mass protest in the states of Louisiana, Mississippi, and Texas.

Under that lower court decision, a protest organizer faces potentially ruinous financial consequences if a single attendee at a mass protest commits an illegal act.

It is possible that this outcome will be temporary. The Court did not embrace the United States Court of Appeals for the Fifth Circuit’s decision attacking the First Amendment right to protest, but it did not reverse it either. That means that, at least for now, the Fifth Circuit’s decision is the law in much of the American South.

For the past several years, the Fifth Circuit has engaged in a crusade against DeRay Mckesson, a prominent figure within the Black Lives Matter movement who organized a protest near a Baton Rouge police station in 2016.

The facts of the Mckesson case are, unfortunately, quite tragic. Mckesson helped organize the Baton Rouge protest following the fatal police shooting of Alton Sterling. During that protest, an unknown individual threw a rock or similar object at a police officer, the plaintiff in the Mckesson case who is identified only as “Officer John Doe.” Sadly, the officer was struck in the face and, according to one court, suffered “injuries to his teeth, jaw, brain, and head.”

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Everyone agrees that this rock was not thrown by Mckesson, however. And the Supreme Court held in NAACP v. Claiborne Hardware (1982) that protest leaders cannot be held liable for the violent actions of a protest participant, absent unusual circumstances that are not present in the Mckesson case — such as if Mckesson had “authorized, directed, or ratified” the decision to throw the rock.

Indeed, as Justice Sonia Sotomayor points out in a brief opinion accompanying the Court’s decision not to hear Mckesson, the Court recently reaffirmed the strong First Amendment protections enjoyed by people like Mckesson in Counterman v. Colorado (2023). That decision held that the First Amendment “precludes punishment” for inciting violent action “unless the speaker’s words were ‘intended’ (not just likely) to produce imminent disorder.”

The reason Claiborne protects protest organizers should be obvious. No one who organizes a mass event attended by thousands of people can possibly control the actions of all those attendees, regardless of whether the event is a political protest, a music concert, or the Super Bowl. So, if protest organizers can be sanctioned for the illegal action of any protest attendee, no one in their right mind would ever organize a political protest again.

Indeed, as Fifth Circuit Judge Don Willett, who dissented from his court’s Mckesson decision, warned in one of his dissents, his court’s decision would make protest organizers liable for “the unlawful acts of counter-protesters and agitators.” So, under the Fifth Circuit’s rule, a Ku Klux Klansman could sabotage the Black Lives Matter movement simply by showing up at its protests and throwing stones.

The Fifth Circuit’s Mckesson decision is obviously wrong

Like Mckesson, Claiborne involved a racial justice protest that included some violent participants. In the mid-1960s, the NAACP launched a boycott of white merchants in Claiborne County, Mississippi. At least according to the state supreme court, some participants in this boycott “engaged in acts of physical force and violence against the persons and property of certain customers and prospective customers” of these white businesses.

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Indeed, one of the organizers of this boycott did far more to encourage violence than Mckesson is accused of in his case. Charles Evers, a local NAACP leader, allegedly said in a speech to boycott supporters that “if we catch any of you going in any of them racist stores, we’re gonna break your damn neck.”

But the Supreme Court held that this “emotionally charged rhetoric … did not transcend the bounds of protected speech.” It ruled that courts must use “extreme care” before imposing liability on a political figure of any kind. And it held that a protest leader may only be held liable for a protest participant’s actions in very limited circumstances:

There are three separate theories that might justify holding Evers liable for the unlawful conduct of others. First, a finding that he authorized, directed, or ratified specific tortious activity would justify holding him responsible for the consequences of that activity. Second, a finding that his public speeches were likely to incite lawless action could justify holding him liable for unlawful conduct that in fact followed within a reasonable period. Third, the speeches might be taken as evidence that Evers gave other specific instructions to carry out violent acts or threats.

The Fifth Circuit conceded, in a 2019 opinion, that Officer Doe “has not pled facts that would allow a jury to conclude that Mckesson colluded with the unknown assailant to attack Officer Doe, knew of the attack and ratified it, or agreed with other named persons that attacking the police was one of the goals of the demonstration.” So that should have been the end of the case.

Instead, in its most recent opinion in this case, the Fifth Circuit concluded that Claiborne’s “three separate theories that might justify” holding a protest leader liable are a non-exhaustive list, and that the MAGA-infused court is allowed to create new exceptions to the First Amendment. It then ruled that the First Amendment does not apply “where a defendant creates unreasonably dangerous conditions, and where his creation of those conditions causes a plaintiff to sustain injuries.”

And what, exactly, were the “unreasonably dangerous conditions” created by the Mckesson-led protest in Baton Rouge? The Fifth Circuit faulted Mckesson for organizing “the protest to begin in front of the police station, obstructing access to the building,” for failing to “dissuade” protesters who allegedly stole water bottles from a grocery store, and for leading “the assembled protest onto a public highway, in violation of Louisiana criminal law.”

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Needless to say, the idea that the First Amendment recedes the moment a mass protest violates a traffic law is quite novel. And it is impossible to reconcile with pretty much the entire history of mass civil rights protests in the United States.

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Dr. Martin Luther King Jr. leads marchers in what the Fifth Circuit calls an “unreasonably dangerous” activity.
Morton Broffman/Getty Images

In fairness, the Court’s decision to leave the Fifth Circuit’s attack on the First Amendment in place could be temporary. As Sotomayor writes in her Mckesson opinion, when the Court announces that it will not hear a particular case it “expresses no view about the merits.” The Court could still restore the First Amendment right to protest in Louisiana, Mississippi, and Texas in a future case.

For the time being, however, the Fifth Circuit’s Mckesson decision remains good law in those three states. And that means that anyone who organizes a political protest within the Fifth Circuit risks catastrophic financial liability.

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2 students killed, 7 other people injured in Tennessee bus crash during school field trip

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2 students killed, 7 other people injured in Tennessee bus crash during school field trip

Two students were killed and at least seven other people were injured after a school bus crash in Tennessee on Friday, officials said.

The school bus was carrying 25 students and five adults from Kenwood Middle School in Clarksville for a field trip in Jackson, Tennessee, the school district said in a statement.

The crash, which remains under investigation, involved a Tennessee Department of Transportation dump truck, a Chevrolet Trailblazer and the school bus. It happened around noon on Highway 70 in Carroll County, said Maj. Travis Plotzer, a spokesperson for the Tennessee Highway Patrol.

Plotzer said there were two adults in the TDOT vehicle and one person in the Chevrolet Trailblazer. He said the crash is “a parent’s worst nightmare.”

The cause of the crash is under investigation.

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At least seven people who were injured were taken by air ambulance to hospitals across Tennessee, including Memphis and Nashville, CBS affiliate WREG reported. The extent of their injuries was not immediately disclosed.

This image, taken from a video, shows emergency responders at the scene of a fatal school bus crash on Friday, March 27, 2026, in Carroll County, Tennessee.

WBBJ-TV via AP


The school’s principal, Karen Miller, said counselors will be available starting Monday. In a written message to families shared on Facebook, she called the crash an unimaginable tragedy and encouraged parents to be attentive to their child’s emotional needs as they process the deaths of their classmates.

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“Please continue to pray with us for our students, families, faculty, and staff,” Miller wrote. “I am grateful for the strength of our Kenwood community, and I trust we will all support each other during this difficult time.”

Four people were taken to Monroe Carell Jr. Children’s Hospital at Vanderbilt in Nashville and were in stable condition Friday, according to a Vanderbilt Health spokesperson.

Another 19 people were taken to Baptist Memorial Hospital-Carroll County, said Kim Alexander, a spokesperson for Baptist Memorial Health Care. All were evaluated and released, though it was unclear how many actually were injured, she said.

CBS affiliate WTVF reported the school bus was on the way to participate in the Toyota Hub City Grand Prix Greenpower USA race in Jackson. The Jackson-Madison County superintendent said in a statement that they were “completely devastated” by the crash and called the loss “immeasurable,” WTVF reported.

The school district was hosting the event.

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Man arrested in plot to firebomb Palestinian activist’s home after undercover op

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Man arrested in plot to firebomb Palestinian activist’s home after undercover op

Police detain Nerdeen Kiswani, an organizer of pro-Palestinian demonstration group “Within Our Lifetime” during a protest on Friday, April 12, 2024, in New York.

Yuki Iwamura/AP


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Yuki Iwamura/AP

NEW YORK — A man accused of planning to firebomb the home of a prominent Palestinian activist has been arrested following a weekslong undercover operation led by the New York City Police Department, officials said Friday.

The target of the plot was Nerdeen Kiswani, who frequently leads protests in New York against Israel and the war in Gaza through the organization Within Our Lifetime.

Kiswani, 31, said law enforcement officials informed her late Thursday that they had disrupted “a threat on my life that was about to take place.”

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Federal authorities said they arrested Alexander Heifler on Thursday at his home in Hoboken, New Jersey, as he was assembling Molotov cocktails that he planned to throw at Kiswani’s home. For weeks, he had discussed the plot with an undercover NYPD detective who had infiltrated a group chat used by Heifler, according to a police department spokesperson.

An official who was briefed on the investigation said Heifler, 26, identified as a member of the JDL 613 Brotherhood, a New Jersey-based group founded in 2024 that describes its membership as “Jewish warriors” fighting back against rising antisemitism.

A website for the group says they are inspired by the original Jewish Defense League, a group linked to numerous bombings and attempted assassinations of Arab American political activists in the 1970s and 1980s.

Heifler planned to flee to Israel following the attack, according to the official, who requested anonymity because they were not authorized to discuss the details of an ongoing investigation.

An email inquiry sent to the JDL 613 was not returned.

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Kiswani, who lives in Brooklyn with her infant son and husband, said the plot would not deter her continued activism.

“I feel very blessed that they were able to thwart this, but it’s something that is a constant possibility for people who speak up on behalf of Palestine,” she said.

Heifler was charged in a criminal complaint with separate counts of making and possessing destructive devices, which each carry a maximum penalty of 10 years in prison. A message left with his attorney was not returned. He made an initial appearance in New Jersey federal court on Friday afternoon.

“Let me be clear: We will not tolerate violent extremism in our city,” New York City Mayor Zohran Mamdani said in a statement. “No one should face violence for their political beliefs or their advocacy. I am relieved that Nerdeen is safe.”

According to a court filing written by an FBI agent, Heifler spoke on a video call in February with a group that included an undercover detective about his interest in training for “self-defense” and wanting space where he could throw Molotov cocktails.

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The next day, he met with the undercover detective in person and discussed his plan to use them against Kiswani and flee the country, according to the complaint. “We have (Kiswani’s) address,” Heifler allegedly told the undercover. “So it’s like that, that would be easier if you’d be more comfortable with that.”

Heifler and the undercover detective drove to Kiswani’s residence on March 4 to “conduct surveillance” and discussed making a dozen Molotov cocktails to throw at her home and two cars parked outside, complaint said.

On Thursday, the undercover detective and Heifler met at Heifler’s Hoboken residence, where he had assembled components to make the Molotov cocktails, including a large bottle of Everclear, a highly flammable alcohol, the complaint said. Law enforcement officers then executed a search warrant at the residence and recovered the eight Molotov cocktails, the complaint said.

Kiswani co-founded the group Within Our Lifetime, which frequently organizes protests against Israel that draw hundreds of participants and often end in arrests. The group’s calls to “abolish Zionism” and support for “all forms of struggle,” including violence, has drawn fierce criticism. Kiswani denies that her criticism of Israel amounts to antisemitism.

Kiswani has been a frequent target of online vitriol. Earlier this year, U.S. Rep. Randy Fine, a Florida Republican, sparked backlash after writing in a social media post that “the choice between dogs and Muslims is not a difficult one.” The post was a response to a message Kiswani shared about dog owners, which she said was a light joke.

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“That hate against Palestinians has been bolstered by public officials, by Zionist organizations, who are never held accountable,” she said. “This is the inevitable result of that.”

The operation was carried out by the Racially and Ethnically Motivated Extremism unit within the NYPD’s counterterrorism bureau, a police spokesperson said.

“This is exactly how our intelligence and counterterrorism operation is designed to work — a sophisticated apparatus built to detect danger early and prevent violence before it reaches our streets,” Police Commissioner Jessica Tisch said.

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