The judicial branch has been essential to the enforcement of the First Amendment and other provisions within the Bill of Rights. Unlike the legislative and executive branches, which can initiate laws and orders, courts have to wait for cases to get to them.
Over time, the court has developed numerous doctrines to ensure that the cases it hears are genuine cases or controversies that are appropriate for adversarial judicial proceedings. Federal courts also seek to respect state court decisions and will not generally intervene in such cases while they are in progress. The case of Olivier v. City of Brandon indicates that this does not mean that they will not be eventually reviewed.
Anti-abortion man fined for preaching outside 'protest area'
At issue was a case brought by Gabriel Olivier, an evangelical Christian street preacher in Mississippi, who had used a bullhorn and banners with scripture verses and pictures of aborted fetuses to convey his message to individuals going to an amphitheater.
Olivier had been arrested, fined, and placed on probation for preaching outside the bounds that an ordinance in the City of Brandon, Mississippi, labeled as a “designated protest area.” Olivier thought the designated protest area was too far away from the city amphitheater for him to adequately convey his message.
Although Olivier had paid his fine, he wanted to return to street preaching near the city amphitheater and was seeking both a declaration under Section 1983 of the Civil Rights Act (first enacted in 1871) that the ordinance infringed on his First Amendment free speech rights and an injunction against its enforcement.
A U.S. District Court and a U.S. Court of Appeals had both ruled against Olivier, largely on the basis of a Supreme Court decision in the case of Heck v. Humphrey, 512 U.S. 477 (1994), which had barred the use of Section 1983 in cases where individuals were seeking habeas corpus relief to overturn convictions and release them from state custody. However, eight of 17 justices on the appeals court had dissented, and another circuit had issued a conflicting ruling in another case.
Justice Kagan: Olivier's case against city regulation can continue
Justice Elena Kagan wrote an opinion for a unanimous Supreme Court. She decided that Olivier’s suit was not barred by the decision in Heck because Olivier was not contesting the fine he had paid or release from state custody but was seeking only to be able to continue street preaching in non-designated areas in the future.
Justice Kagan observed that prior to Heck, the Court had ruled in Wooley v. Maynard, 430 U.S. 705 (1977), that an individual, in this case a Jehovah’s Witness who had covered the phrase “Live Free or Die” from his New Hampshire license plate, could come to court to seek declaratory and injunctive relief. Heck had brought that precedent into question by limiting the use of Section 1983 actions when individuals were seeking to overturn their earlier convictions and/or seeking release from state custody.
Kagan noted, however, that subsequent court decisions in Edwards v. Balisok, 520 U.S. 641 (1997) and Wilkinson v. Dotson, 544 U.S. 74 (2005) had limited the Heck ruling to cases involving retrospective rather than the kind of prospective, or future, relief that Olivier was requesting in this case. This meant that Olivier’s case has as much right to continue as had Wooley’s.
Kagan noted that were Olivier unable to seek judicial relief, he “would face the same dilemma as Maynard: flout the law and risk another prosecution, or else forgo speech he believes is constitutionally protected.”
Courts must decide if rules were 'reasonable time, place and manner' restrictions
Although this decision allows Olivier to continue with his appeal, lower courts will have to decide whether the restrictions that the city of Brandon imposed on Olivier are reasonable time, place and manner restrictions. Under standards established in Ward v. Rock Against Racism (1989), this will, in turn, require the courts to decide whether the restrictions are sufficiently content neutral, narrowly tailored or adequately provide alternative channels for him, and others like him, to convey his message.
John R. Vile is a political science professor and dean of the Honors College at Middle Tennessee State University.