Whether the First Amendment protects a protest organizer from civil liability for negligence in organizing and conducting a protest when a third party commits an unlawful act during the demonstration, absent any allegation that the organizer directed, authorized, ratified, or encouraged the violence

No question identified. : PARTIES In addition to the parties on the caption, Black Lives Matter Network, Inc., a party to the proceedings before the Court of Appeals, does not join in this application (nor does “Black Lives Matter,” which the court held was not an entity amenable to suit). APPLICATION FOR EXTENSION OF TIME TO FILE A PETITION FOR WRIT OF CERTIORARI To: Hon. Samuel A. Alito, Jr., Circuit Justice for the Fifth Circuit: Under this Court’s Rules 13.5 and 22, Applicant DeRay Mckesson requests an extension of twenty-one (21) days to file a petition for a writ of certiorari, seeking review of the decision of the U.S. Court of Appeals for the Fifth Circuit in Doe v. Mcksesson, No. 17-30864, 71 F. 4th 278, a copy of which is attached. See also 141 S. Ct. 48 (2020) (per curiam) (opinion of this Court granting certiorari, vacating prior decision, and remanding); 339 So. 3d 524 (La. 2022) (opinion on certified question); 947 F.3d 874 (declining, by an 8-8 vote, to rehear case en banc). 1. A panel of the Fifth Circuit issued its decision on June 16, 2023. Without an extension, the petition for writ of certiorari would be due on September 14, 2023. With the requested extension, the petition would be due on October 5, 2023. This Court’s jurisdiction will be based on 28 U.S.C. § 1254. 2. This case, which has been the subject of four panel opinions (the first two, unanimous; the latter two, 2-1), an 8-8 en banc vote, and a prior grant of certiorari— is a serious candidate for further review. 3. Respondent brought this civil action, alleging that, while on-duty as a police officer at an emotionally charged 2016 protest in Baton Rouge, Louisiana, he was struck by a rock-like-object thrown by an unknown person. He sought recovery not from the rock-hurler, but from applicant, DeRay Mckesson, a prominent justice activist whom he identified as the protest’s leader. The complaint did not allege Mckeson himself perpetrated violence or directed, authorized, ratified, or encouraged the attack (or violence of any kind), but rather that he had been negligent— breaching a duty of care, owed those present, to “organize” and “conduct” the protest “reasonably,” i.e. to avoid eliciting a police response and the attendant, foreseeable risk someone might then violently act out. a. After the district court dismissed the negligence claim as barred by the First Amendment, 272 F. Supp. 3d 841 (M.D. La. 2017), the Fifth Circuit reversed. The court held, over Judge Willett’s dissent, that the negligent-protest theory was authorized under Louisiana law and did not exceed the limits the Constitution imposes on “the grounds that may give rise to damages liability [and]...the persons who may be held accountable,” for another person’s unlawful act in “the presence of” First Amendment activity. NAACP v. Claiborne Hardware Co., 458 U.S. 886, 916 (1982). The majority’s principal rationale was that Claiborne’s protections were not triggered because the culprit’s attack was a “consequence” of Mckesson’s directing the demonstration onto a public street, noting that Louisiana law makes trafficobstruction “unlawful.” 945 F.3d at 829 (quoting Claiborne). b. After the Fifth Circuit declined to reconsider the constitutional ruling en banc, applicant sought review in this Court, which granted certiorari and vacated the decision, without deciding the constitutional question. The Court recognized the “andeniabl[e] important[ce]” of the First Amendment question, 141 8. Ct. at 50, but, echoing Judge Willett, held that the Fifth Circuit should not have reached it without first obtaining assurance from “the Louisiana Supreme Court [that the majority’s understanding of] potentially controlling Louisiana law” was sound. Jd. at 51. Certification was the proper course, the Court explained, both because the theory was “novel” and “uncertain,” id., see id. at 49, and because the unsettled state law issues were “laden with value judgments” that “peculiarly call[ed] for the exerc