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.
new video loaded: Loud Booms Heard Along the East Coast This Week
Loud booms were heard in the Boston area on Saturday and in South Carolina on Thursday. NASA said the noise in Boston was caused by a fireball piercing the air; the cause of the South Carolina boom is still unknown.
The wife of Maine Democratic Senate candidate Graham Platner says she is deeply hurt by public revelations of her husband’s extramarital sexting.
Amy Gertner accused a former campaign official of betraying her trust by disclosing deeply personal details about her marriage.
Platner’s campaign has faced multiple controversies, including a tattoo resembling a Nazi symbol, which he since covered, and past inflammatory statements.
AI-generated summary was reviewed by a CNN editor.
The wife of Maine Democratic Senate candidate Graham Platner said she was “deeply hurt” after details of her husband’s extramarital sexting became public Saturday, accusing a former campaign official and confidante of betraying her trust.
The statement from Platner’s wife, Amy Gertner, came after both The New York Times and The Wall Street Journal reported that shortly after Platner announced his Senate campaign last year, Gertner flagged to campaign staff sexual text messages her husband had with other women.
“I know who Graham is,” Gertner said in a statement delivered through Platner’s campaign. “I know the man I married and the husband he has been to me on the best and the worst days of my life. That hasn’t changed, and it won’t.”
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Genevieve McDonald, the former political director for Platner’s campaign, confirmed to CNN on Saturday that Gertner disclosed to her last year that Platner had been sexting multiple women and that the campaign evaluated the matter as a potential political liability.
According to both The Times and The Journal, Gertner told Platner’s campaign last August about text messages she had found in spring 2025 between her husband and other women early in their marriage. The publications reported that she flagged the messages as Platner’s campaign internally vetted the candidate.
CNN has not independently confirmed the existence of the text messages. CNN did verify that an account on the messaging app Kik appears to belong to Platner. The account, under the username “phustle0331,” features a profile photo showing Platner shirtless in a bathroom with a towel on his waist and uses a handle similar to ones on his since-deleted Reddit account and a now-deleted Instagram account.
According to The Times, Gertner reported her husband’s messages to other women to his campaign’s then-political director, McDonald — whom Gertner appeared to refer in Saturday’s statement.
“I confided deeply personal details about my marriage to someone I considered a friend,” Gertner’s statement said.
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“I trusted this person with the most private chapter of our lives — the early days of our marriage before any campaign was on our mind — and I am deeply hurt by her betrayal and the invasion of our privacy,” she said.
Platner, a Marine Corps veteran with no prior political experience, has become a lightning rod since announcing his upstart campaign to challenge incumbent Republican Sen. Susan Collins.
He received fierce blowback early in his campaign after it was revealed that he had a tattoo resembling a Nazi symbol on his chest. Platner said he got the tattoo when he was in his 20s and in the military and did not realize its significance until recently. He has since said he has covered the tattoo.
But reporting by CNN’s KFile later undercut his claim of ignorance over the tattoo’s symbolism. In a social media thread from 2019, Platner discussed the emblem — a skull-and-crossbones “Totenkopf” — while noting that many US service members had adopted the imagery.
CNN and other outlets have also reported on other statements Platner made before he was a Senate candidate. He once called himself a “communist” and dismissed police as “bastards.” He disavowed those comments during a previous interview with CNN.
The announcer’s voice broke the silence that had fallen over the racetrack: “Here comes Spunky!”
As a white, fluffy object, supposed to look like a hare, shot past the starting box, a line of eight greyhounds burst out, a blur of canine energy rocketing down the straightaway.
Such races were once a familiar sight across the country, as bettors flocked to tracks in 19 states, from Florida to Massachusetts to California. At its height, in the 1980s and early 1990s, dog racing drew tens of millions of spectators, routinely posting higher yearly attendance figures than hockey or tennis. Spectator bets totaled roughly $3.5 billion every year.
But today only two dog tracks remain, down from more than 60. Both are in West Virginia, the only state where commercial races still take place. Attendance has waned as pressure from animal rights groups led many states to ban dog tracks and as the legalization of sports betting nationwide gave people a bounty of new gambling options.
Now a bill is making its way through Congress that would ban dog racing altogether. Fans and critics agree that the sport is on its final lap.
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“I know at some point, it’s going to end,” said Ronald Welch, who was sitting at a picnic table last month at the track in Wheeling, W.Va. “But still I’d be heartbroken if it did.”
Public sentiment about greyhound racing had already started shifting by the early 2000s, due in part to the efforts of Carey Theil and Christine Dorchak.
Through their Boston-based nonprofit, GREY2K USA Worldwide, the couple has led lobbying to end dog racing over concerns about animal welfare.
The industry has faced criticism for killing dogs that could no longer race, though many of the documented cases took place before adoption programs became common in the 2000s. Critics also draw attention to confined living spaces in the kennels where most of the dogs live, along with reports of performance enhancing drugs, and diets of low-quality meat.
The New York Times reached out to five kennels associated with the Wheeling racetrack. They did not respond or declined to comment.
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The efforts by GREY2K and other organizations have yielded changes, with 44 states banning greyhound racing. When voters in Florida, once a stronghold, approved a ban in 2018, it was a gut punch to the industry.
“We’ve been in the endgame phase since,” Mr. Theil said.
But in West Virginia, a law passed nearly two decades ago has made it harder to land the final blow. In an effort to keep gamblers from taking their betting dollars to neighboring Pennsylvania, which had just legalized slot machines, West Virginia in 2007 said casinos could sweeten the pot by offering table games — so long as they also were operating a track with live racing.
It also diverts a percentage of slot machine and table game revenue to a fund that pays race purses. This provision comes out to roughly $15 million to $22 million a year, accounting for about 95 percent of payouts.
“Without the subsidy, this industry wouldn’t exist,” Mr. Theil said.
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A 2017 state bill would have allowed the casinos to operate without a live track, and done away with the subsidy. In a sign that support was fading even in West Virginia, it passed in both the state House and Senate. But then-Gov. Jim Justice vetoed it, saying “eliminating support for the greyhounds is a job killer.”
Mr. Theil has focused on rebutting assertions that the industry benefits the local economy. This year, a study by Ball State University commissioned by GREY2K found that apart from providing minimal low-paying jobs, the industry was buoyed almost entirely by the subsidy and provided nearly nonexistent economic benefit.
The concerns have made their way to Capitol Hill, where a bill being considered by Congress could spell the end of greyhound racing. The Greyhound Protection Act would make it illegal to train or possess greyhounds for racing and to bet on the races in-person or via simulcast.
The legislation was incorporated into the Farm Bill, a huge legislative package, which reauthorizes major food and agriculture programs roughly once every five years. The Farm Bill, which totals $390 billion in proposed spending, passed the House in April and is awaiting a Senate vote.
The act now looks like GREY2K’s best bet.
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“Greyhound racing is going to end in the United States,” Mr. Theil said. “The real question is how.”
One hour southwest of Pittsburgh, the Wheeling Island Hotel, Casino & Racetrack sits at the southern tip of the most populated isle in the Ohio River. “The Island,” as locals called it, was once the home of wealthy industrialist families. Now, it is lined with dilapidated Victorian houses and beset by flooding and opioids.
But it is still home to the racetrack, which has welcomed locals and out-of-staters from Ohio, Pennsylvania and even Canada, since 1937.
In the 1940s, when horses raced there, the track was nicknamed “Little Churchill Downs,” after the storied Kentucky venue. The track transitioned to greyhounds in the 1970s.
Nearly 40 years ago, Delaware North, a food service and hospitality company based in Buffalo, purchased the track and added a full casino. Now, the course stages around 500 races a year.
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In-person attendance is down about 60 percent over the last decade, according to Delaware North. But many of those who still come are fiercely loyal.
With the third race of the day about to begin, Donna and Dennis Kennedy lounged at a table in the betting area overlooking the track.
The couple, both former teachers from Bridgeport, Ohio, often hit the track together. It wasn’t always that way; for years, she refused to join her husband because of concerns about the dogs’ welfare.
“I’m an animal person,” she said.
But when the track was raffling off a free car, Ms. Kennedy couldn’t resist. “The first thing I did was march up to the adoption center,” she said, referring to a spot at the track where people can take in retired racing dogs. She ended up volunteering for a decade and adopting four dogs of her own.
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Mr. Kennedy, 84, had the likeness of one of them, Fancy, inked on his forearm two years ago. It was his first and only tattoo. “If those were my dogs, I’m not going to allow anyone to abuse it because that’s an investment — and we love them,” he said.
Chuck Galloway has been betting at the track since greyhounds started racing there in 1976. On the small screen in front of him, race lineups showed dogs with names like Gonz Megatron, Loyal Duck, Bulldozer Mozer and Venus.
The races are simulcast so patrons in other states and countries can bet remotely — about 95 percent of bets placed on Wheeling races are made this way.
But even with lots of the bets coming from elsewhere, there’s a certain camaraderie at the track, Mr. Galloway said. He likened it to his time campaigning for Barack Obama. “I got to know people that I never would have crossed paths with,” he said.
Several track patrons pointed to what they said was a double standard — horse racing, a sport with a blue-blood pedigree, can still capture a mass audience, while dog racing is on the verge of extinction.
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Mr. Welch, 60, the man who was sitting at the picnic table, had a theory.
“Horse racing is like apple pie. Like baseball, the Wild West,” he said. “But the dogs, they aren’t part of that American mystique.”
Mr. Welch grew up attending races in Iowa before the state banned the sport. In need of an anchor in his life after his mother passed away, he moved to Wheeling to live near the track.
“When I see them run,” he said, “it’s a spiritual experience.”
In downtown Wheeling, many people seemed to have at least a tangential connection to the racetrack — an uncle who trained dogs, a friend who worked there one summer. But not everyone knew that greyhound racing’s days could be coming to an end. Some said they were ready to see it go.
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Outside Coleman’s Fish Market, Mitchell Visnic, 40, was adamant about his distaste for any animal-related sport. “I don’t even like the zoo,” he said.
Others were disappointed but not surprised. Michael Mudrak, 42, who was sitting nearby on his lunch break, said it was emblematic.
“Take another thing away from West Virginia,” he said.
