Justices wrestle with precedent in street preacher dustup

WASHINGTON (CN) — The Supreme Court appeared likely on Wednesday to greenlight an evangelical street protester’s lawsuit against a city ordinance despite discordance amongst the justices over a three-decade-old precedent at the heart of his case.

Heck v. Humphrey, a 1994 ruling authored by the late Justice Antonin Scalia, typically bars defendants from using civil rights claims to undermine prior convictions. There seemed to be some agreement that Heck couldn’t foreclose Gabriel Olivier’s lawsuit against Brandon, Mississippi’s ordinance limiting protests around a concert venue but just not why.

Olivier was arrested for demonstrating outside of a designated protest area at Brandon’s amphitheater before a Lee Brice concert in 2021. Olivier and other church colleagues instead stood at a busy intersection holding large signs that depicted aborted fetuses, using a loudspeaker to call patrons “whores” and “Jezebels.”

A municipal court issued a fine and put Olivier on unsupervised probation, conditioned on not violating the city ordinance for a year. Olivier didn’t appeal his conviction.

While on probation, Olivier filed civil rights claims against the city, claiming the ordinance violated his First and 14th Amendment rights. Olivier argued his suit didn’t violate Heck because he was only requesting prospective relief.

Justice Elena Kagan, a Barack Obama appointee, disagreed, noting that Scalia’s sweeping opinion prevents defendants from using civil rights claims to undermine or suggest the invalidity of a prior conviction in any way.

“I’m just having a little trouble understanding how it is that we wouldn’t have to say, ‘I’m sorry, we just got it wrong when we wrote this broadly because the language says what it says,’” Kagan said.

Several of the court’s conservatives seemed to balk at walking back Heck.

“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?” asked Justice Samuel Alito, a George W. Bush appointee, pointing to sections of Scalia’s opinion that would have to be abandoned.

Allyson Ho, an attorney with Gibson Dunn representing Olivier, tried to stymie the court’s concerns, suggesting subsequent cases only applied Heck against claims where federal relief would result in immediate or faster release from confinement or when damages resulting from past confinement were concerned.

“I think it’s significant that Justice Scalia, who authored Heck, was in the majority in all of this court’s Heck cases while he was on the court,” Ho said. “So I think that has a particular pedigree in terms of how this court has approached it.”

The high court’s conservatives rarely rebuke Scalia, who was mentioned 18 times during the argument. Scalia was a leading proponent of originalism, which has shaped the majority of the conservative supermajority’s recent rulings.

Justice Sonia Sotomayor said her colleagues were stuck on the breadth of Heck’s language. But the Obama appointee suggested the court could narrow its view of prospective relief.

“If the claim does not rely on any facts of the prior conviction or anything involving the prior conviction or its proceedings, then it’s purely prospective,” Sotomayor said.

Even the justices who had trouble squaring Olivier’s case with Heck seemed to think he should have an avenue for relief. Alito said Heck was aimed at preventing end-runs around other federal relief and cases like Olivier’s seemed “far afield” of those goals.

“Doesn’t it seem a stretch of the underlying rationale of Heck to say, ‘No, you can’t ever do that; you’re 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?’” Alito asked.

The city of Brandon said Olivier’s lawsuit was barred by Heck but reassured the justices that other pathways remained available.

“Although petitioner claims in this case that the courthouse doors are closed, that argument ignores the countless doors petitioner chose not to enter,” Gregory Todd Butler, an attorney with Phelps Dunbar, said. “What this case is about is petitioner’s preferred door, one that offers his favored venue and an opportunity for attorneys’ fees.”

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