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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.”
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.
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.”
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.
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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An American Airlines aircraft takes off from Fort Lauderdale-Hollywood International Airport, Thursday, Nov. 13, 2025, in Fort Lauderdale, Fla.
Lynne Sladky/AP
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The Federal Aviation Administration said Sunday it is lifting all restrictions on commercial flights that were imposed at 40 major airports during the country’s longest government shutdown.
Airlines can resume their regular flight schedules beginning Monday at 6 a.m. EST, the agency said.
The announcement was made in a joint statement by Transportation Secretary Sean P. Duffy and FAA Administrator Bryan Bedford.
Citing safety concerns as staffing shortages grew at air traffic control facilities during the shutdown, the FAA issued an unprecedented order to limit traffic in the skies. It had been in place since Nov. 7, affecting thousands of flights across the country.
Impacted airports included large hubs in New York, Chicago, Los Angeles and Atlanta.
The flight cuts started at 4% and later grew to 6% before the FAA on Friday rolled the restrictions back to 3%, citing continued improvements in air traffic controller staffing since the record 43-day shutdown ended on Nov. 12.
The number of flights canceled this weekend was at its lowest point since the order took effect and was well below the 3% cuts FAA was requiring for Saturday and Sunday. Data from aviation analytics firm Cirium showed that less than 1% of all flights were canceled this weekend. The flight tracking website FlightAware said 149 flights were cut Sunday and 315 were canceled on Saturday.
The FAA statement said an agency safety team recommended the order be rescinded after “detailed reviews of safety trends and the steady decline of staffing-trigger events in air traffic control facilities.”
The statement said the FAA “is aware of reports of non-compliance by carriers over the course of the emergency order. The agency is reviewing and assessing enforcement options.” It did not elaborate.
Cancellations hit their highest point Nov. 9, when airlines cut more than 2,900 flights because of the FAA order, ongoing controller shortages and severe weather in parts of the country. Conditions began to improve throughout last week as more controllers returned to work amid news that Congress was close to a deal to end the shutdown. That progress also prompted the FAA to pause plans for further rate increases.
The agency had initially aimed for a 10% reduction in flights. Duffy had said worrisome safety data showed the move was necessary to ease pressure on the aviation system and help manage worsening staffing shortages at air traffic control facilities as the shutdown entered its second month and flight disruptions began to pile up.
Air traffic controllers were among the federal employees who had to continue working without pay throughout the shutdown. They missed two paychecks during the impasse.
Duffy hasn’t shared the specific safety data that prompted the cuts, but he cited reports during the shutdown of planes getting too close in the air, more runway incursions and pilot concerns about controllers’ responses.
Airline leaders have expressed optimism that operations would rebound in time for the Thanksgiving travel period after the FAA lifted its order.
Across Camp Mystic on the night of July 3, 195 campers settled into their bunks. Taps played over a loudspeaker shortly after 10 p.m. Dick Eastland, the 70-year-old patriarch of the family-run all girls camp, was at home in his creek-side house on the camp property, not far from the cabins.
So too was Edward Eastland, one of his sons. Edward grew up at Camp Mystic and now directs the camp along with his wife Mary Liz, living in a house even closer to the cabins and the Guadalupe River than his father.
Heavy rain was in the forecast, and camp staffers had already pulled from the water the largest boats — 20-foot-long “war canoes” — as they always did before a big rain in the flood-prone area.
What follows is the most detailed description to date of the events that took the lives of more than two dozen campers and counselors, and the elder Mr. Eastland, at the 99-year-old summer retreat.
The descriptions and rendering of those events were taken from the first interviews that Camp Mystic’s owners have granted, along with never-before-seen videos and photos taken during flooding at the camp, data from devices such as Apple watches, cell phones and vehicle crash data, and court documents from a lawsuit filed by some of the parents of children who died.
The Times visualized the water levels at the camp over the course of the night using videos and photos from the camp and estimates from a flood simulation by First Street, a nonprofit that assesses flood risk in the United States. The moving dots on the diagrams in this story show the simulated flow and depth of water at different times, and the extent of flooding.
1:14 a.m.
At 1:14 a.m. on July 4, the National Weather Service warned of potentially life-threatening flooding in the area. By that point, according to data from his phone, Dick Eastland was already up and monitoring the weather.
Around 1:45 a.m., he radioed his son, Edward. “His words were that we’ve gotten about two inches of rain in the last hour and that we need to move the waterfront equipment,” Edward Eastland told The New York Times, his first time recounting his story publicly. Members of the grounds crew went to the waterfront and pulled the remaining smaller canoes to higher ground on the hill nearer to the cabins. No one expected the water to rise that high, Edward Eastland said.
He drove to the camp office where his father and the night watchman, Glenn Juenke, were monitoring the weather. The elder Mr. Eastland checked the rain gauge that he kept at his house. A group of workers had just returned to the camp from a day off, describing a harrowing drive in the pouring rain.
2:14 a.m.
“Bubble Gum Creek is bad,” Edward Eastland texted his wife, at 2:21 a.m. “Look at the radar.” A severe thunderstorm hovered over the camp, he recalled in the interview. “Looks short tho,” she texted back, believing the heaviest rain would soon pass. “It kept saying that it would end in 30 minutes,” he recalled.
Around that time, two counselors from Bug House — a cabin of 12-year-olds closest to the river — came to the office to report water running down a steep hill into their cabin door. Edward and his father drove them back, and tried to reassure them. “At that point,” he recalled, “it was a normal flood.”
That changed quickly.
A little before 3 a.m., Edward said, a call came over the radio from a staff member in the gatehouse at the camp entrance, right along the river. “She said there’s water coming in her cabin,” he said. “She couldn’t get the door open.” Then her radio made some “very strange noises.” He could not reach her again. (The gatehouse cabin was eventually swept away in the flood; the woman survived by clinging to a tree.)
At about that time, Mr. Eastland said his father radioed from Bug House where the river was rising. “My dad said, we need to get Bug House out,” he recalled.
3:00 a.m.
The evacuation began, he said. Mr. Eastland, his father and Mr. Juenke loaded campers into each of their vehicles — two pickups and an S.U.V. — in two trips, bringing campers to the main office and directing them to walk the short distance to the recreation hall.
Counselors in a cabin further up the road, Nut Hut, watched as the evacuation took place.
The camp’s one-page safety plan, reviewed by The Times, called for them to shelter in place in a flood.
During the evacuation on July 4, the counselors were told “by the camp” not to leave their cabins, according to a lawsuit filed against Mystic. But as the water rose, the Nut Hut counselors evacuated themselves and their campers, climbing a steep hill behind their cabin.
Edward Eastland denied directing anyone to stay put during the evacuation. “When Jumble House asked me if they should walk, I said, ‘yes, go,’” he recalled, referring to another cabin.
In all, counselors in two cabins eventually evacuated on their own, climbing up the hill with their campers. Mr. Juenke helped those in a third cabin reach the hill, and then sent them up.
3:26 a.m.
“On the second trip, the water was running over the road. It was probably ankle deep,” Edward Eastland said. By then, water covered the sloping grass between the cabins and the river. Lightning crashed, revealing canoes floating over the soccer field.
Soon it was up to the top of his truck tires, he said.
At that point, Mr. Eastland and his father turned to the cabins of the youngest campers, Bubble Inn and Twins. A video, taken at 3:26 a.m. by one of the workers from a second-floor sleeping area above the commissary, captured deepening water swiftly moving past Twins, while, in the distance, campers were still able to wade through ankle and knee-deep water into the rec hall.
Mr. Juenke ended up in a cabin called Wiggle Inn, where he would ride out the rising water, with the campers and two counselors floating on inflatable mattresses. “We’re going to be OK,” Mr. Juenke recalled telling them.
3:50 a.m.
Dick Eastland parked his S.U.V. by the entrance to Bubble Inn. “He was standing outside of his Tahoe, and the water was rushing all around these cabins at this point, it was probably two or three feet,” his son said. “That’s the last place I saw him.”
Edward Eastland walked around Giggle Box and through waist-high water to the pair of connected cabins known as Twins.
“It feels like rapids at that point,” he said. He saw two counselors calling out for help from the porch. As he got to the cabin, he said he thought to himself, “we cannot get these eight-year-olds out of this cabin in this water.”
Water, he said, had never reached the cabin, not in 100 years. “It was unbelievable,” Edward Eastland recalled.
Inside the first Twins cabin, a dozen 8-year-old girls huddled in the corner together on top of two bunk beds.
“I tell them, I’m here and I’m not leaving you guys, and everything’s gonna be OK,” he said. The 11 girls in the second Twins cabin were also on the top bunks. The water at that point was rushing by the doorways and filling both cabins.
“Water started coming in through the window,” he said. “I yelled to the counselors, does anybody have a screwdriver?” Edward Eastland was thinking of trying to remove a metal vent in the low ceiling to climb through. As he moved between cabins, the counselors were yelling that the water was chest high.
“I remember seeing the waterline and just praying that it would stop going up,” he said. “And it just kept going up.”
Mr. Eastland said he was able to talk to his father on the radio, and he heard him struggling in the water.
“He said, ‘I need help. I can’t move,’” Mr. Eastland recalled. “I said, I can’t.”
Dick Eastland appeared to have been trying to get the eight-year-old girls out of Bubble Inn and into his Tahoe. It was not clear if he loaded all 13 campers and two counselors inside.
“He was right there,” Mr. Eastland recalled, standing outside the Twins cabins on a recent sunny morning, with Bubble Inn just a few steps away. But from inside the cabin that night, Mr. Eastland said he could not see him.
Then his father’s radio seemed to malfunction, Mr. Eastland said.
The water picked up Dick Eastland’s S.U.V., carrying it forcefully over the soccer field, down past the archery range and into a grove by the river, smashing the vehicle against a tall Cypress.
A data report from his vehicle, reviewed by The Times, indicated a crash at 3:51 a.m. His Apple watch showed he went underwater at the same time. He was found dead in the S.U.V., along with three campers from Bubble Inn.
Around that time, Mr. Eastland said he was in the second Twins cabin, the water at his shoulders, when a counselor yelled from the other Twins cabin that the water was carrying girls out the door.
“I’m right here in the doorway, and three girls come out of that door,” Mr. Eastland recalled, his voice shaking. “I catch two of them, and one girl gets away into the darkness.”
As he held the two girls, and gripped the doorway, the water began to rise over his head. Another camper swept from the cabin behind him grabbed onto him.
“I have no idea who it was,” he said. “She put her arms around my neck” and tried to hold on.
Then, he said, the water pushed him and the girls holding onto him from the cabin into the surging river.
Data from his Apple watch, reviewed by The Times, indicated that Mr. Eastland went underwater at 4:09 a.m.
He struggled against the current. “I could feel the pressure, like I was almost to the top,” he said, but the surface, “it just, it wasn’t there.”
The flow of the water carried Mr. Eastland alone past a row of trees along the road where an hour before he had been evacuating campers. Now the water reached the branches, which he tried to seize. But, he said, they kept breaking.
Eventually the water pushed him into the canopy of a pair of large trees, just below the Bug House cabin. He grabbed on.
Several campers and counselors from the Twins cabins were already there, clinging for their lives, Mr. Eastland said. Eight campers and three counselors survived by holding on to the same trees, he said. Another counselor survived in a tree along the road, and another camper also was found alive nearby, he said. Three more campers were later found alive down river.
The scale of the loss became clear only after the water receded, Mr. Eastland said.
Eleven campers from the two Twins cabins died in the flood. All 13 campers and both counselors who were in Bubble Inn died. Another girl was swept away after trying to return to her cabin, Jumble House, for a blanket after evacuating.
The body of one girl from Twins, Cile Steward, 8, has still not been found.
The waterlines in the cabins, measured by The Times, rose well above the heads of the campers.
In one of the Twins cabins, the lines appeared to reach the low, flat ceiling. In the other, the water stopped a few inches from the ceiling.
None of the buildings at the camp, except for the gatehouse and a wing of the commissary used for storage, were destroyed, though many were damaged. In Bubble Inn, the waterline was 6 feet 3 inches from the floor.
The riverwaters eventually surrounded and filled the first floor of the open, two-story recreation hall, where 95 campers and 15 counselors had gathered for safety, according to figures provided by Camp Mystic. They huddled on the narrow second-floor balcony that wrapped around the log-frame structure, watching beneath them the water flow through the building.
The relatives of some of the 25 campers and two counselors who died have filed lawsuits against the camp and the Eastland family, arguing that the camp had been negligent in advance of the flood and that the last-minute rescue efforts were undertaken too late.
“The Camp chose not to evacuate its campers and counselors, even as floodwater reached the cabins, until counselors demanded it,” according to one of the suits. “When it was too late, the Camp made a hopeless ‘rescue’ effort from its self-created disaster.”
In interviews with The Times, Mr. Eastland and his brother Richard, who also works and lives at the camp, said that based on decades of experience living at the camp and running it through previous floods, they believed the cabins were the safest place for the campers.
“In our minds, the cabins were built on high ground,” Richard Eastland said.
The family felt that way even after a 2011 FEMA map placed most of the cabins, including Bubble Inn and Twins, within a 100-year flood zone. The camp hired surveyors who argued there were errors in the topography used for that map; the federal agency in 2013 removed the cabins from the floodplain maps.
But the July 4 flood had changed what high ground was for the camp, Richard Eastland said.
There had been no plan for how to evacuate campers, the Eastlands said. The evacuation was improvised, as the water level rose more rapidly than they had ever seen. The camp is planning to create an evacuation plan for the future, Richard Eastland said.
And, the Eastlands said, the camp will never again use the cabins that flooded to house campers or counselors.
“No, never,” Edward Eastland said.
But next summer they plan to reopen their separate, adjacent camp – Camp Mystic Cypress Lake – that sits higher up a hill and did not flood that holiday weekend.
Some families have welcomed the news, while others, including those whose children died in the flood and the lieutenant governor, Dan Patrick, have criticized the camp for its decision. The Texas Legislature is planning to hold hearings on what took place at the camp though a date has not yet been announced.
Edward Eastland said he has been going to counseling. He has returned many times to the spot where his father died along with several girls from Bubble Inn, at the base of a Cypress tree, by the now-gently flowing river.
“Every morning is horrible,” he said, his voice quavering. “I want to help the families. I don’t know what to do though.”
“We are so sorry,” said his wife, Mary Liz. “I feel like no one thinks that we’re sorry.”
Methodology
Times’ journalists generated the 3-D model of Camp Mystic from high-resolution LiDAR data captured by The Times using a drone flown over the camp on Nov. 12. The flood simulation provided by First Street models water levels at the camp over the course of the night, based on rain on the night of the flood and topography in the area. Photos and videos from the camp point to water levels even higher than the simulation’s estimate.
Republican congresswoman Marjorie Taylor Greene says she’s facing threats following a barrage of personal criticism from US President Donald Trump on social media.
The former MAGA ally posted on X, saying she had been contacted by private security firms “with warnings for my safety as a hotbed of threats against me are being fueled and egged on by the most powerful man in the world”.
She went on: “As a woman, I take threats from men seriously.
“I now have a small understanding of the fear and pressure the women, who are victims of Jeffrey Epstein and his cabal, must feel.
“As a Republican, who overwhelmingly votes for President Trump’s bills and agenda, his aggression against me, which also fuels the venomous nature of his radical internet trolls (many of whom are paid), this is completely shocking to everyone.”
Calling her “wacky,” a “RINO” (Republican In Name Only) and swapping her surname from Greene to “Brown” (“Green grass turns Brown when it begins to ROT!”), Donald Trump rescinded his support for the Georgia representative and suggested he could back a primary challenger against her.
Ms Greene claims the president’s “aggressive rhetoric” is in retaliation for her support for releasing files about disgraced paedophile financier Jeffrey Epstein.
After the US government shutdown ended, a petition to vote on the full release of the files about Epstein received enough signatures – including that of Ms Greene – to bring it to a vote in the House of Representatives.
Ms Greene claimed text messages she sent to Mr Trump over the Epstein files “sent him over the edge,” writing on social media: “Of course he’s coming after me hard to make an example to scare all the other Republicans before next week’s vote to release the Epstein files.”
She went on: “It’s astonishing really, how hard he’s fighting to stop the Epstein files from coming out that he actually goes to this level.”
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Trump rebukes MAGA ally over foreign policy
High-profile figures, including Mr Trump, have been referenced in some of the documents.
The White House has said the “selectively leaked emails” were an attempt to “create a fake narrative to smear President Trump”, who has consistently denied any involvement or knowledge about Epstein’s sex trafficking operation.
Mr Trump has called the Epstein files a “hoax” created by the Democrats to “deflect” from the shutdown.
Watch Sky’s Martha Kelner clash with Taylor Greene earlier this year…
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Marjorie Taylor Greene clashes with Sky correspondent
In another post on X, Ms Greene wrote: “I never thought that fighting to release the Epstein files, defending women who were victims of rape, and fighting to expose the web of rich powerful elites would have caused this, but here we are.
“And it truly speaks for itself. There needs to be a new way forward.”
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The new Epstein files: The key takeaways
Read more on Jeffrey Epstein:
Ghislaine Maxwell ‘wants Trump to commute sentence’
What Epstein’s right-hand woman said about Trump and Andrew
Epstein took his own life in prison in 2019 while awaiting a trial for sex trafficking charges and was accused of running a “vast network” of underage girls for sex. He pleaded not guilty.
Following a conviction for soliciting prostitution from a minor in 2008, he was registered as a sex offender.
Mr Trump has consistently denied knowledge of Epstein’s crimes.
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