Don’t Let the First Amendment Forget DeRay Mckesson

The Roberts Court has repeatedly assured the nation that the First Amendment protects everyone, regardless of popularity and regardless of viewpoint. The Court has a chance to put its doctrinal money where its free-speech mouth has been. It should do that as soon as possible by summarily reversing a recent atrocious Fifth Circuit decision called Mckesson v. Doe—rather than waiting until a Louisiana policeman has a chance to bankrupt a civil-rights activist with enormous litigation costs.

In this decision, a conservative panel of the Fifth Circuit—without even hearing oral argument—mounted a frontal offensive on a venerable First Amendment precedent that has protected unpopular speakers for four decades. The panel’s three judges (E. Grady Jolly from Mississippi, Jennifer Walker Elrod from Texas, and Don Willett from Texas) flatly defied that precedent and allowed a punitive lawsuit to proceed against DeRay Mckesson. Mckesson is one of the founders