Street preacher gets Supreme Court go-ahead for fight to protest at concerts 

WASHINGTON (CN) — Despite a 30-year-old precedent by originalism’s chief architect, the Supreme Court ruled Friday to allow an evangelical street protester’s lawsuit against a city ordinance that limits protests around concert venues.

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. But Gabriel Olivier asked the Supreme Court to greenlight his suit against a Brandon, Mississippi, ordinance because he was only requesting prospective relief.

The high court agreed. In a unanimous ruling led by Justice Elena Kagan, a Barack Obama appointee, the court held that Olivier’s suit could proceed because he wasn’t trying to attack his old conviction or risk parallel litigation on his prior conduct.

“The suit, after all, is not about what Olivier did in the past, and depends on no proof addressed to his prior conviction,” Kagan wrote. “Unlike in Heck, the suit merely attempts to prevent a future prosecution. So the Heck bar does not come into play.”

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, as long as he didn’t violate 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.

During oral arguments in December, Olivier avoided directly challenging Heck, suggesting subsequent cases only applied the precedent against claims where federal relief would result in immediate or faster release from confinement or when damages resulting from past confinement were concerned.

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

Without disturbing Heck, Kagan noted the opinion’s language might have been too broad. If Olivier succeeds, she said it would mean his prior conviction was unconstitutional.

“So, strictly speaking, the Heck language fits,” Kagan wrote. “But that could just show that the phrasing was not quite as tailored as it should have been.”

Kagan said general language in opinions should be read as referring in context to circumstances similar to those in the case before the court. And the court agreed that Olivier’s case was different enough from the circumstances in Heck. Still the justices said his case should proceed, stating that Heck’s language was just too broad.

“That language was used in Heck to identify claims that were really assaults on a prior conviction, even though involving some indirection,” Kagan said.

But Kagan said there was no looking back in Olivier’s suit.

“Both in the allegations made, and in the relief sought, the suit is all future-oriented — even if, as a kind of byproduct, success in it shows that something past should not have occurred,” Kagan wrote. “The Heck court did not consider such a suit, and the Heck language was not meant to address it.”

Under the city’s contrary logic, Kagan said other citizens would also be barred from challenging the city ordinance.

Olivier’s case will be sent back to the lower courts for further proceedings.

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