Justices weigh legal precedent and a street preacher’s plight

Gabriel Olivier began publicly declaring his Christian beliefs outside a new amphitheater in Brandon, Miss., in 2018. But the town issued an ordinance restricting him to a 10-by-10-foot space, 100 yards away from the venue. When Olivier continued to preach in the prohibited areas to be closer to the public, police arrested him.

Olivier later sued the city, a suburb of Jackson, contending that its ordinance was unconstitutional. His case spiralled through the courts, turning into a debate not on the constitutionality of the law but about the route by which convicted individuals can fight for their civil rights.

On Wednesday, Olivier brought his case before the U.S. Supreme Court. In oral arguments, his attorney said he should be able to seek future protection from Brandon’s law, even though he’s already been punished for violating it. But the city of Brandon argued that if Olivier receives future protection, that essentially cancels his prior conviction, impeding the rights of state courts.

Justices seemed skeptical of the city’s arguments, repeatedly questioning why Olivier couldn’t bring his civil challenge when an individual not convicted of violating the law could.

While Olivier said he talked about Jesus Christ peaceably, the city contended that Olivier and the group he was with shouted insults at concertgoers and held signs that showed aborted babies. The city argued these actions provoked fights that led police officers to leave their traffic posts to handle the conflict.

In 2019, the city passed an ordinance that required “protests” and “demonstrations” around the amphitheater to be moved to another designated area. But the amphitheater closed temporarily in 2020 due to the COVID-19 pandemic, pausing Olivier’s preaching at the location.

In 2021, after the venue reopened, Olivier returned to the park to evangelize during a concert. Police ordered him to go to the designated protest area. While Olivier initially did so, he returned to his original post after realizing the designated spot was in a remote area. Olivier argued that the restricted area prevented people from hearing or seeing his message.

The city charged Olivier with violating the ordinance. He entered a no-contest plea in municipal court, accepting the charges and punishment without admitting guilt. The court fined Olivier and sentenced him to 10 days’ imprisonment, which it suspended, and one year of unsupervised probation.

The following month, Olivier sued the city under a Section 1983 claim, which allows individuals to sue state and local government officials. He said that the city’s ordinance violated his free speech rights. He didn’t seek to overturn his prior conviction but wanted to ensure the city couldn’t enforce its ordinance against him in future cases.

In 2022, a district court dismissed his claim without weighing its constitutional merits, instead leaning on the 1994 Supreme Court decision Heck v. Humphrey. There, the justices found that individuals convicted under a law cannot challenge that law if their legal victory “would necessarily imply the invalidity of [their] conviction or sentence.”

The court said that Olivier should instead rely on habeas corpus, a legal right that allows a detained person to challenge the legality of their imprisonment. The U.S. Court of Appeals for the 5th Circuit agreed with the lower court in 2023.

In his petition to the Supreme Court, Olivier asserted that he was never a prisoner, so he never had the option to pursue habeas corpus. He said that the 5th Circuit’s interpretation of Heck restricts the civil rights of anyone in a similar situation. They are “left with the untenable choice of violating the law again and enduring the consequences, or giving up their constitutional rights,” the brief states.

The city of Brandon argued in its own brief that Olivier wrongly complicates Heck, which necessarily limits when millions of convicted plaintiffs can challenge their convictions.

During Wednesday’s arguments, the justices asked Olivier’s lawyer, Allyson Ho, if a win for Olivier would allow him to essentially overturn his prior conviction. Ho emphasized that Olivier is only seeking forward-facing protection and not trying to undo his conviction or its probation.

Justice Sonia Sotomayor pointed out that even if that is the case for Olivier, others could take advantage of a ruling favorable to him to undo their own convictions. “Where some of my colleagues may be hung up, and I was actually too, when I read the Heck language, is the Heck language is very broad,” Sotomayor said.

Ho urged the justices to apply a narrow ruling to prevent that scenario.

City attorney Todd Butler argued that Olivier has ignored other routes to challenge the constitutionality of Brandon’s law, such as contesting it under various state statutes, the state’s constitution, or by requesting a pardon from the governor. “Although petitioner claims in this case that the courthouse doors are closed, that argument ignores the countless doors petitioner chose not to enter,” Butler said. “What this case is about is petitioner’s preferred door.”

But Justice Ketanji Brown Jackson questioned whether any of the doors Butler referenced would offer Olivier federal remedy or merely state remedy. “If we agree with you, this person ends up with no federal remedy. And that just seems odd,” Jackson said.

Justice Clarence Thomas asked Butler if an individual not convicted could bring this same suit and proceed. When Butler said yes, Thomas asked, “But if a third party can bring the exact same claim, why would the petitioner be precluded from bringing a legitimate [Section] 1983 claim?”

Thomas’ question, which other justices repeatedly echoed, showed that the high court was concerned about Olivier’s ability to challenge his constitutional rights in federal court, said Nate Kellum, an attorney for First Liberty Institute, which represented Olivier. “The underlying concern for Mr. Olivier is a right to be heard in the public square, but also something that’s equally as fundamental is a right to be heard in federal court,” Kellum said.

Kellum said another protester who was with Olivier in 2021 but wasn’t arrested brought a similar civil suit. Though the 5th Circuit ruled against this protester, it did so by considering the merits of her civil rights.

“That comparison and contrast is something that a lot of justices were concerned about,” Kellum said. “It just didn’t seem right that one person could bring the same claim, yet Mr. Olivier is barred not just now, but forever.”

If Olivier wins his case, it would be a positive step forward for individuals who wish to enforce their civil rights in court, said Liam Harrell, an attorney at the American Center for Law and Justice. Harrell said the center regularly relies on Section 1983 in its cases, including to defend religious protesters’ right to carry signs.

But if Brandon wins, it means Olivier forever loses his right to challenge the constitutionality of this law. Harrell described that as shocking.

“[If] Mississippi’s argument carries the day, I think it really does raise a troubling concern that no one would be able to challenge these laws,” Harrell said. “The First Amendment, we all know, requires some constant vigilance.”