Gabriel Olivier stood outside of the amphitheater in Brandon, Mississippi, loudly preaching his Christian faith through a megaphone by hurling a string of epithets at passersby: “Jezebel,” “Nasty,” “Drunkards,” he yelled at people who were entering a concert the venue was hosting in May 2021.
The Brandon police chief, William Thompson, handed him a copy of a city ordinance limiting protests outside events and ordered him to move to the venue’s designated protest area. The street preacher followed the police chief’s instructions briefly, but felt that the concertgoers weren’t hearing his message at the designated spot, and he returned to an area that had more people. Police issued him a citation for violating the ordinance.
On Wednesday, those events led Olivier and the City of Brandon to the U.S. Supreme Court.
In 2019, the City of Brandon had adopted an ordinance requiring protestors to gather in a specific area of the amphitheater during live events, requiring signs to be handheld and restricting demonstrators from using loudspeakers that “are clearly audible more than 100 ft.”
That day in May 2021 was not Olivier’s first time proselytizing at the amphitheater; he had frequently preached there between 2018 and 2019. But it was his first time preaching after the city ordinance went into effect.
In municipal court, Olivier pleaded no contest and paid a fine but did not appeal the conviction. He instead filed a lawsuit against the City in the U.S. District Court for the Southern District of Mississippi to collect damages and seek an injunction to prevent the City from enforcing the ordinance in the future; he alleged that the ordinance violated his First and 14th Amendment rights.
That lower court ruled that the U.S. Supreme Court’s 1994 precedent in the case Heck v. Humphrey, authored by the late conservative Justice Antonin Scalia, barred Olivier from suing over the law. The Heck case found that plaintiffs who are convicted of crimes cannot use civil litigation to challenge laws under which they were convicted in cases where a successful challenge “would necessarily imply the invalidity” of the conviction.
The U.S. Court of Appeals for the Fifth Circuit agreed with the district court and dismissed the case with prejudice.
At the U.S. Supreme Court on Wednesday, the justices are not considering the merits of Olivier’s arguments over free speech and religious freedom. Instead, the issue is over the technicality of whether or not he can even challenge the law.
His lawyer, Allyson N. Ho, a partner at Gibson, Dunn, & Crutcher LLP, told the justices that her client was only seeking an injunction to prevent him from being punished for his street preaching in the future and barring further enforcement of the ordinance—not an overturning of the evangelist’s conviction.
“A prior conviction shouldn’t ever bar a claim for future protection,” the attorney told the court on Wednesday. “Olivier’s past prosecution makes him a perfect plaintiff because past enforcement is good evidence that the threat of future enforcement is real. The Court should confirm that the federal court has doors that remain open to persons like Olivier whose rights have already been infringed.”
Conservative Justice Samuel Alito pointed to Heck v. Humphrey and asked Ho if she was arguing to overturn that 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?” he asked her. “The Court said that the district court must consider whether a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence. If it would, the complaint must be dismissed unless the plaintiff can demonstrate that the conviction or sentence has already been invalidated.”
Ho argued that her case was consistent with that, but he showed skepticism.
“What Heck protects is anything looking back to the set of facts in the past, and it protects that conviction,” Ho said. “It protects individual convictions, not the criminal law in the abstract, Your Honor.”
G. Todd Butler, who represented the City of Brandon, argued that Olivier could have contested the city’s ordinance, rather than pleading no contest.
“Petitioner had the opportunity to challenge the constitutionality of the city’s ordinance in the Mississippi trial court where he was prosecuted,” he said, as he listed a series of other options Olivier had to challenge the law, including “on direct appeal through Mississippi’s appellate courts” or by seeking “post-conviction relief under Mississippi law.”
“Although petitioner claims in this case that the courthouse doors are closed, that argument ignores the countless doors Petitioner chose not to enter,” he continued. “What this case is about is Petitioner’s preferred door, one that offers his favored venue and an opportunity for attorney’s fees. That is the singular door that this Court’s decision in Heck versus Humphrey closes, and it closes it only until a favorable termination is achieved.”
Justice Ketanji Brown Jackson, an appointee of former President Joe Biden, pressed Butler on whether he agreed that “there’s a distinction between someone who is trying to attack or change his conviction and someone who’s trying to prevent a future conviction based on the same behavior.”
Butler said he could see the difference, but that Heck “recognizes both a direct method and an indirect method.”
Several of the justices, including Chief Justice John Roberts, expressed concern that questions in the case could lead to a complicated outcome.
The U.S. Supreme Court will likely rule on the case sometime next year. Even if Olivier’s lawsuit is allowed to go forward, however, it could be years before the courts rule on the merits of the case.