Unanimous court allows street preacher’s free speech case to move forward

A unanimous court on Friday sided with a Mississippi street preacher who sued to block future enforcement of a public demonstration ordinance that he was previously convicted of violating. A lawsuit like his, “seeking purely prospective” – that is, a forward-facing – “remedy,” is not barred by Heck v. Humphrey, a 1994 ruling limiting the challenges convicted criminals can bring against the law under which they were convicted, wrote Justice Elena Kagan in Olivier v. City of Brandon, Mississippi.

The lawsuit was filed by Gabriel Olivier, a public evangelist from Bolton, Mississippi. Olivier, as Kagan noted in the court’s opinion, “believes that sharing his religious views with fellow citizens is an important part of exercising his faith” – to do so, he often stations himself outside event venues to speak to event attendees about Christianity and hand out religious literature.

But at one such venue, an amphitheater in Brandon, Mississippi, law enforcement officers raised concerns about public demonstrations, prompting city leaders to enact an ordinance that requires protesters and other demonstrators to remain within a designated protest area. Olivier was arrested for violating this ordinance in May 2021, after he left the designated area to move “to the sidewalk fronting the amphitheater” and thereby get closer to the crowds.

In June 2021, Olivier pleaded no contest, meaning that he did not admit guilt but did not dispute the charges. He was fined $304 and put on probation for one year.

A few months later, Olivier challenged the ordinance under which he was convicted by bringing a federal civil rights claim against the city. He contended that Brandon’s public demonstration ordinance violates his First Amendment right to free speech and asked for a ruling preventing the city from enforcing the ordinance against him in the future.

The city argued that Olivier could not bring his claim because of Heck, which bars an individual who has been convicted of violating a law from challenging that law when a ruling in his favor “would necessarily imply the invalidity of his [earlier] conviction or sentence.” A federal district court and then the U.S. Court of Appeals for the 5th Circuit agreed with the city, holding that Olivier’s lawsuit could not move forward.

On Friday, the Supreme Court reversed the 5th Circuit, holding that Olivier’s “suit escapes the so-called Heck bar.” “Given that Olivier asked for only a forward-looking remedy—an injunction stopping officials from enforcing the city ordinance in the future—his suit can proceed, notwithstanding his prior conviction,” Kagan wrote in her 13-page opinion.

Kagan acknowledged that, if Olivier’s Section 1983 suit is successful, it would “imply that no one—including Olivier—should have been convicted under that law.” In that sense, she wrote, “the Heck language fits. But that could just show that the phrasing was not quite as tailored as it should have been.”

Indeed, the language in Heck “swept a bit too broad,” Kagan continued. The court’s concern in that case was with suits that “require[] looking back to conduct involved in a prior conviction, and offering contradictory proof,” rather than with a suit, like Olivier’s, that is “future-oriented—even if, as a kind of byproduct, success in it shows that something past should not have occurred.”

To hold otherwise, Kagan wrote, would be to force Oliver to choose between knowingly violating the ordinance and “risk[ing] another prosecution” or “forgo[ing] speech he believes is constitutionally protected.” The court will not put Olivier to that choice, she concluded; “[h]is suit to enjoin the ordinance, so he can return to the amphitheater, may proceed.”