Supreme Court may revive First Amendment suit from sidewalk preacher who shouted at concertgoers

By John Fritze, CNN

(CNN) — After years of shouting on a sidewalk, street preacher Gabriel Olivier managed to make his case to the Supreme Court without raising his voice, holding a sign or calling anyone a “sissy.”

Olivier wants to challenge an ordinance in federal court that was enacted by a suburban Mississippi city that bars people from protesting outside an amphitheater. But before he can advance his lawsuit, he must deal with a 1994 Supreme Court precedent that is intended to bar people convicted of a crime from using civil lawsuits to effectively reverse their convictions.

Though the justices asked difficult questions of both sides during oral arguments on Wednesday, Olivier seemed likely to eke out a limited win that would allow him to continue his fight.

Olivier claimed the ordinance violates his First Amendment rights to share his faith publicly. Officials from the city of Brandon asserted that Olivier was part of a group that used a loudspeaker to call people “whores,” “Jezebels” and “sissies” as they tried to enter an amphitheater to attend concerts and other events.

His problem is that he was already convicted under the ordinance. And rather than raise his First Amendment claims during his criminal case, Olivier filed a subsequent civil suit seeking to hold the ordinance unconstitutional. The 1994 precedent bars people convicted of crimes from using certain civil suits as an indirect way of challenging those previous convictions.

Several justices – both conservative and liberal – openly wrestled with the broad language of that precedent on the one hand, and the idea of blocking a person from challenging a possibly unconstitutional law just because they had once been convicted of that law, possibly decades ago.

“What you’re basically saying is, simply because they’ve been previously convicted, they cannot seek prospective relief 20 years from now,” Justice Sonia Sotomayor, a member of the court’s liberal wing, told the attorney for the city.

Justice Samuel Alito, a conservative, suggested it might be a “stretch” to interpret the 1994 decision in Heck v. Humphrey as meaning that a person is “forever barred from engaging in what you think is protected First Amendment activity because you were previously convicted under this statute and received, more or less, a slap on the wrist.”

The arguments turned almost entirely on how to interpret that precedent, written by the late Justice Antonin Scalia, which was intended to block people convicted of a crime from filing a civil suit against police or other officials that would, if successful, effectively let them invalidate their conviction. If a court reviewing that civil suit found an underlying law unconstitutional, people guilty of violating it would almost certainly seek to toss their conviction.

Olivier has said he would not do so – that he only wants to block future enforcement of the ordinance.

Alito was a particularly interesting questioner during the arguments, which lasted just under 90 minutes. Though at times he seemed sympathetic to Olivier’s position, he posed tough questions to his attorney as well about the precedent.

“In order for you to win, would it not be necessary for us to backtrack on a number of things that the court said in Heck?” Alito asked at one point.

“How,” he asked, could Olivier’s position “be consistent with that?”

Though the case is technical, the court’s decision could have broad implications for similar ordinances across the country. Local governments fear Olivier’s position will create new legal challenges to parade permitting requirements, zoning rules for adult businesses and regulations around homeless encampments.

The conservative 6-3 Supreme Court has repeatedly sided with religious claims in recent years, although Olivier’s case at this point is not directly about the First Amendment. There has also been a thorny debate percolating over the extent to which Americans can sue officials under a civil rights law Olivier is relying on for his case, a dispute that came into sharper view in an unrelated case earlier this year.

Olivier is represented in part by First Liberty Institute, a group that has brought several successful religious appeals to the Supreme Court in recent years.

Olivier traveled to Brandon several times in 2018 and 2019 to share his faith on sidewalks near the city’s amphitheater. In 2019, the city passed an ordinance requiring protesters to gather in a designated area about 265 feet away. It banned loudspeakers that could be heard more than 100 feet and required signs – regardless of their message – to be handheld.

The city described the protests as chaotic. The group sometimes held large signs depicting aborted fetuses, it said. Concertgoers would walk into traffic to avoid the group. Police would have to intervene to prevent fights between the group and attendees, the city said.

In 2021, as concertgoers arrived to hear country music artist Lee Brice perform, police advised Olivier and his group to move to the designated area. Olivier declined, according to court records, and was arrested for violating the ordinance. He pleaded no contest and was sentenced to a fine and a year’s unsupervised probation.

Another theme that several justices raised is what would happen if a third party – say, another person in Olivier’s group, who had not been convicted of violating the law – brought a civil suit challenging the same law. In that circumstance, Olivier would benefit in the same way as if he had brought the civil challenge himself.

“The thing that makes your case a little quirky, this case, is the friend, the compatriot who is doing exactly the same thing,” Justice Ketanji Brown Jackson asked the attorney for the city. “And no one is suggesting that he couldn’t get a pre-enforcement challenge.”

That is precisely what happened in Olivier’s case. Another protester outside the concert who was not arrested, Spring Siders, attempted to join the suit. The 5th US Circuit Court of Appeals concluded Siders, even though she was not barred by the 1994 precedent, was unlikely to win.

A decision is expected next year.

This story has been updated following oral arguments.

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