In the case of McKesson v. Doe, 2020, the U.S. Supreme Court vacated a ruling by the Fifth Circuit that held DeRay Mckesson, a Black Lives Matter activist, could be sued by an anonymous police officer (Doe) who was injured during protests in Baton Rouge in 2016. The officer claimed Mckesson should have known violence would occur and thus is responsible for his injuries. However, the Supreme Court sent back this case to be reconsidered under Louisiana state law without addressing First Amendment issues raised about whether protest organizers can be held liable for damages caused by third parties as it could potentially chill free speech rights related to protest activity.

In the dissenting opinion for McKesson v. Doe, Justice Clarence Thomas argued that the Supreme Court should have taken up this case to clarify when individuals can be held liable for crimes committed by others during a protest or demonstration they organized. He disagreed with the majority's decision to send it back to lower courts without providing guidance on how First Amendment protections apply in such situations. According to him, this lack of clarity could potentially deter people from organizing protests due to fear of being held responsible for any illegal actions taken by participants, which would infringe upon their constitutional rights. Furthermore, he expressed concern about potential inconsistencies in future rulings if different courts interpret existing precedents differently.