Cite as: 601 U. S. ____ (2024) 1
Statement of SOTOMAYOR, J.
SUPREME COURT OF THE UNITED STATES
DERAY MCKESSON v. JOHN DOE
ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
No. 23–373. Decided April 15, 2024
The petition for a writ of certiorari is denied.
Statement of JUSTICE SOTOMAYOR respecting the denial
of certiorari.
Earlier in this case, the Fifth Circuit held that petitioner
DeRay Mckesson, the leader of a Black Lives Matter protest
in Baton Rouge, Louisiana, could be liable under a negli-
gence theory for serious injuries sustained by a police officer
when an unidentified individual attending that protest
threw a hard object that hit the officer in the face. 945 F. 3d
818, 828–829 (2019). In so holding, the Fifth Circuit re-
jected Mckesson’s argument that the First Amendment
barred his liability in these circumstances absent a showing
of intent to incite violence. Id., at 832. Judge Willett dis-
sented, explaining that the majority’s theory of “ ‘[n]egligent
protest’ liability against a protest leader for the violent act
of a rogue assailant . . . clash[ed] head-on with constitu-
tional fundamentals.” Id., at 846 (opinion concurring in
part and dissenting in part).
This Court vacated the Fifth Circuit’s judgment and re-
manded for certification of the underlying state-law ques-
tions to the Louisiana Supreme Court, recognizing that
there would be no need to reach the constitutional question
on which the panel had divided if Louisiana law did not pro-
vide for negligence liability in these circumstances. See
Mckesson v. Doe, 592 U. S. 1, 4–6 (2020) (per curiam). The
Court explained that “certification would ensure that any
conflict in this case between state law and the First Amend-
ment is not purely hypothetical.” Id., at 6.
2 MCKESSON v. DOE
Statement of SOTOMAYOR, J.
When the Louisiana Supreme Court took up the question
and concluded that state law did allow the claim, the Fifth
Circuit once again had to answer the constitutional ques-
tion. See 71 F. 4th 278, 282 (2023). The same divided panel
then reaffirmed its prior holding that Mckesson could be li-
able in negligence to the officer, again rejecting Mckesson’s
argument that the First Amendment precluded the imposi-
tion of negligence liability in these circumstances. See id.,
at 295–297. Judge Willett again dissented on this point,
arguing that, under this Court’s decision in NAACP v.
Claiborne Hardware Co., 458 U. S. 886 (1982), “a protest
leader’s simple negligence is far too low a threshold for im-
posing liability for a third party’s violence.” 71 F. 4th, at
306 (opinion concurring in part and dissenting in part). A
negligence theory of liability for protest leaders, the dissent
pointed out, “would have enfeebled America’s street-blocking
civil rights movement, imposing ruinous financial liability
against citizens for exercising core First Amendment free-
doms.” Id., at 313.
Less than two weeks after the Fifth Circuit issued its
opinion, this Court decided Counterman v. Colorado, 600
U. S. 66 (2023). In Counterman, the Court made clear that
the First Amendment bars the use of “an objective stand-
ard” like negligence for punishing speech, id., at 78, 79, n. 5,
and it read Claiborne and other incitement cases as “de-
mand[ing] a showing of intent,” 600 U. S., at 81. The Court
explained that “the First Amendment precludes punish-
ment [for incitement], whether civil or criminal, unless the
speaker’s words were ‘intended’ (not just likely) to produce
imminent disorder.” Id., at 76 (citing Claiborne, 458 U. S.,
at 927–929, among other cases). Although the Court deter-
mined that a less-demanding recklessness standard was
sufficient to punish speech as a “true threat,” it emphasized
that an objective standard like negligence would violate the
First Amendment. See 600 U. S., at 82.
Mckesson now asks this Court to “grant certiorari and
Cite as: 601 U. S. ____ (2024) 3
Statement of SOTOMAYOR, J.
confirm that Claiborne forecloses negligent-protest liabil-
ity.” Pet. for Cert. 15. Because this Court may deny certi-
orari for many reasons, including that the law is not in need
of further clarification, its denial today expresses no view
about the merits of Mckesson’s claim. Although the Fifth
Circuit did not have the benefit of this Court’s recent deci-
sion in Counterman when it issued its opinion, the lower
courts now do. I expect them to give full and fair consider-
ation to arguments regarding Counterman’s impact in any
future proceedings in this case.