House Republicans Push for Supreme Court Review of First Amendment Case

Two Republican members of the House are urging the U.S. Supreme Court to take up a case that could enhance First Amendment protections for religious expression. They contend that police officers should not be granted qualified immunity for what they describe as “obvious” violations of the Constitution against Christian evangelist Richard Hershey.

“Mr. Hershey’s rights were essentially treated as optional when the officers chose to overlook them,” said Rep. Nathaniel Moran (R-Texas) in a statement. “The decision from the Fifth Circuit fails to address this issue, which contradicts the intentions of the Founders and leads to inconsistencies that undermine individuals’ rights to free speech and religious exercise. Such violations of First Amendment rights should concern everyone, regardless of political affiliation or beliefs.”

Moran and Rep. Glenn Grossman (R-Wis.) have filed an amicus brief in support of Hershey’s petition to the Supreme Court. Their argument focuses on resolving a conflict among federal appeals courts regarding whether government officials can claim qualified immunity for clear First Amendment violations.

The brief asserts that the Constitution safeguards Hershey’s sidewalk preaching under both the Free Speech and Free Exercise Clauses. They argue that police officers should not be protected by qualified immunity in cases of evident constitutional breaches. Furthermore, they believe Congress intended for Section 1983 to hold government officials accountable for infringing on constitutional rights, suggesting that the Supreme Court needs to reevaluate the law given the differing opinions from federal appeals courts.

Recently, First Liberty Institute, along with the law firm Clement & Murphy PLLC, requested the Supreme Court to review the Fifth Circuit’s ruling, which relieved Louisiana government officials of responsibility for stopping Hershey from distributing Christian vegetarian literature on a public sidewalk outside a park.

Hershey was reportedly handing out religious pamphlets near the Bossier City Arena in Louisiana in February 2020 when police and security personnel intervened and instructed him to leave. First Liberty claims there was no written policy about leafleting on public sidewalks surrounding the venue.

The lawyers argue that Hershey’s activities are protected by the First Amendment, describing how he experienced harassment and threats of arrest, which compelled him to leave the area out of fear of being taken into custody.

Afterward, Hershey filed a lawsuit against the police and five security guards, alleging violations of his free speech rights. A federal district court ruled in favor of qualified immunity for the officers, and this decision was later upheld by the Fifth Circuit.

The appeals court remarked, “The government’s actions alleged in appellant’s complaint are completely inexcusable. His case could proceed in other circuits, and even in the Fifth Circuit if he were an inmate alleging mistreatment.” They suggested this Court should step in to reaffirm that there are no exceptional circumstances under Section 1983 when it comes to clearly established constitutional rights.

Efforts to reach First Liberty Institute and Hershey for comments were met with no immediate response.