BATON ROUGE - The U.S. Supreme Court said Monday a Baton Rouge police officer's trial against Black Lives Matter activist Deray Mckesson may proceed, but justices wouldn't weigh in on what they thought of Mckesson's claim that he enjoyed First Amendment protection for his actions.

Former BRPD officer Brad Ford was hit in the face with a piece of asphalt thrown by protesters in the days after the shooting of Alton Sterling. Ford says Mckesson is responsible because he summoned a crowd to Baton Rouge and should have known there would be violence.

"I got hit with a piece of asphalt in the mouth," Ford said. "It broke some teeth, cut the inside of my mouth, cut my tongue, gave me a concussion, and it affected my eyesight."

But Mckesson says he was exercising his First Amendment rights at the protest and that he could not be responsible for Ford's injuries. He asked the U.S. Supreme Court whether the leader of a demonstration can be sued for an injury to a police office caused by another protestor.

While the Supreme Court denied to hear McKesson's appeal Monday, the order was not an assessment of the value of the claim, merely that a decision of the Fifth U.S. Circuit Court of Appeals — that he could possibly be held liable — would stand. The Supreme Court explained that in a recently-ruled-upon case, Counterman v. Colorado, could affect the Fifth Circuit's original ruling. 

In Counterman, the Court ruled that “the First Amendment precludes punishment [for incitement], whether civil or criminal, unless the speaker’s words were ‘intended’ (not just likely) to produce imminent disorder.”

Justice Sonia Sotomayor wrote for the court: "Although the Fifth Circuit did not have the benefit of this Court’s recent decision in Counterman when it issued its opinion, the lower courts now do. I expect them to give full and fair consideration to arguments regarding Counterman’s impact in any future proceedings in this case."