Siding with Street Preacher against Free Speech Restrictions
Life Legal has filed an amicus curiae brief with the U.S. Supreme Court in the case of Olivier v. City of Brandon, which involves a street preacher convicted of violating an arguably unconstitutional ordinance in Brandon, Mississippi. The case hinges on a highly technical legal point – the applicability of a previous case, Heck v. Humphrey. At stake, though, is the ready ability to challenge local ordinances that violate the First Amendment.
Although the Country Music Hall of Fame is located far away in Nashville, Tennessee, Brandon is also considered a center for the genre, and its amphitheater hosts many of the most successful performers year round. The public property adjacent to the property therefore constitutes a prime location for reaching people with messages of all kinds. In 2019, the City of Brandon passed an ordinance confining “protests” and “demonstrations” outside the Brandon Amphitheater to a designated protest area.
Gabriel Olivier is a street preacher of the sort that may be familiar to many readers, especially those who regularly visit crowded cities. Think, “Go into all the world and preach the gospel to every creature” (Mark 16:15), or picture the apostles on Pentecost morning, and you’ll get the idea. Olivier does not exclusively preach against abortion, but such preaching does comprise a considerable portion of his message – as it has historically for Christian preachers since at least as early as the beginning of the second century.
In May of 2021, Olivier visited the Brandon Amphitheater with other evangelical Christians to pursue his preaching ministry. He was directed by William Thompson, Chief of Police, to go to the protest area. Thompson also presented Olivier with a copy of the ordinance.
Olivier at first complied with Thompson’s order but then, believing the designated area to be too isolated to allow for the communication of his message, returned to his previous location. This is when he was charged with violating the ordinance.
Olivier pleaded no contest in municipal court, received a suspended jail sentence, and paid a fine. He did not appeal his conviction.
He then sued the City of Brandon, claiming violations of his First and Fourteenth Amendment rights. He asked for a preliminary and permanent injunction against future enforcement of the ordinance. The City moved for summary dismissal of the case on the grounds that Olivier’s claims were barred by Heck, because he had already been convicted of violating the ordinance. The district dismissed Olivier’s case as requested, and the Fifth Circuit Court of Appeals upheld the dismissal.
The question before the U.S. Supreme Court is whether Heck v. Humphrey has been properly applied in this case.
Our brief argues against its applicability. In essence, Heck determined that, to recover damages for an alleged unconstitutional violation of rights related to a criminal conviction, a plaintiff must show that the conviction has been overturned or expunged in state court. The plaintiff in Heck was barred from bringing a federal civil rights claim that would imply the invalidity of his state court conviction.
Olivier is not, however, seeking to invalidate his conviction. He is seeking to prevent future enforcement of an ordinance that he has good reason to believe is unconstitutional. Hence, his facts are clearly distinguishable from those in Heck – and his argument should not have been dismissed by the lower courts.
The use of Heck to prevent plaintiffs from seeking forward-looking relief will lead to irrational and unjust results, as it already has in Olivier’s case. The Supreme Court should take the case to clarify what Heck does and doesn’t mean.
All of this may seem arcane in the extreme to many Life Legal supporters. However, understanding and explaining such legal details are what our work often entails. In Robert Bolt’s Man for All Seasons, Thomas More tells his future son-in-law and biographer, William Roper, that England is “planted thick with laws from coast to coast – Man’s laws, not God’s.” America is planted thick with case law, with decisions made by courts high and low. Their proper application can make the difference between freedom and totalitarianism, even between life and death. It’s our job to make a rational path through those thickets – always in the pursuit of our pro-life mission.
That’s what we’ve done through our brief in this case.