Six years ago, Richard Hershey was distributing religious leaflets on a public sidewalk in a public park surrounding a public arena in Bossier City, Louisiana, when he was accosted by police officers who insisted that he stop. Hershey, who was promoting the views of the Christian Vegetarian ***** ociation outside a Christian rock concert at the Bossier City Arena, pointed out that he was exercising his constitutionally guaranteed freedom of speech and freedom of religion. He also noted that the officers had not interfered with another leafleteer, who was advertising a local radio station.
The cops were unmoved. If Hershey did not leave immediately, they said, he would be arrested, and he likewise would be carted off to jail if he ever dared return to the park.
It would be hard to imagine a more blatant violation of First Amendment rights. But last October, the U.S. Court of Appeals for the 5th Circuit held that Hershey could not sue the officers responsible for it because they were protected by qualified immunity, a doctrine that bars federal civil rights claims unless they allege violations of "clearly established" law. Now Hershey is asking the Supreme Court to overrule that jaw-dropping conclusion, which illustrates how broad interpretations of qualified immunity prevent victims of outrageous police misconduct from vindicating their rights.
"The right to evangelize in public, free of viewpoint-based government suppression, is as clearly established as any right in the firmament," Hershey's lawyers, who include former Solicitor General Paul Clement and litigators at the First Liberty Institute, note in a Supreme Court petition filed last Friday. "It is squarely protected by two separate but overlapping clauses of the First Amendment—the Free Speech and Free Exercise Clauses—and by decisions of this Court underscoring that viewpoint discrimination is verboten and that discrimination against religious speech is viewpoint discrimination (im)pure and simple. No government official should need an on-point circuit precedent to illustrate what the Constitution itself and this Court's cases make clear beyond cavil."
Hershey filed his lawsuit under 42 USC 1983, which authorizes people to sue state or local officials for violating statutory or constitutional rights under color of law. That provision, which dates back to the Civil Rights Act of 1871, says nothing about qualified immunity. The Supreme Court invented that doctrine in the 1982 case Harlow v. Fitzgerald on the theory that officials should be liable under Section 1983 only when they had fair notice that their conduct was illegal or unconstitutional.
The cops were unmoved. If Hershey did not leave immediately, they said, he would be arrested, and he likewise would be carted off to jail if he ever dared return to the park.
It would be hard to imagine a more blatant violation of First Amendment rights. But last October, the U.S. Court of Appeals for the 5th Circuit held that Hershey could not sue the officers responsible for it because they were protected by qualified immunity, a doctrine that bars federal civil rights claims unless they allege violations of "clearly established" law. Now Hershey is asking the Supreme Court to overrule that jaw-dropping conclusion, which illustrates how broad interpretations of qualified immunity prevent victims of outrageous police misconduct from vindicating their rights.
"The right to evangelize in public, free of viewpoint-based government suppression, is as clearly established as any right in the firmament," Hershey's lawyers, who include former Solicitor General Paul Clement and litigators at the First Liberty Institute, note in a Supreme Court petition filed last Friday. "It is squarely protected by two separate but overlapping clauses of the First Amendment—the Free Speech and Free Exercise Clauses—and by decisions of this Court underscoring that viewpoint discrimination is verboten and that discrimination against religious speech is viewpoint discrimination (im)pure and simple. No government official should need an on-point circuit precedent to illustrate what the Constitution itself and this Court's cases make clear beyond cavil."
Hershey filed his lawsuit under 42 USC 1983, which authorizes people to sue state or local officials for violating statutory or constitutional rights under color of law. That provision, which dates back to the Civil Rights Act of 1871, says nothing about qualified immunity. The Supreme Court invented that doctrine in the 1982 case Harlow v. Fitzgerald on the theory that officials should be liable under Section 1983 only when they had fair notice that their conduct was illegal or unconstitutional.
2 months ago
