PYONGYANG, NORTH KOREA: Police have arrested a man for preaching the Gospel outside a public building. As the case goes to court…
Oops, my mistake! That wasn’t North Korea; it was Brandon, Miss., heart of America’s Bible Belt! And the case is before the United States Supreme Court today.
In 2019, the City of Brandon enacted an ordinance requiring protestors outside the Brandon Amphitheater to remain in a designated protest area (“free speech zone”) during live events. It also prohibited loudspeakers and non-handheld signs.
Gabriel Olivier, an evangelical Christian who regularly preached in public places, was preaching outside the Amphitheater. There is no evidence that he preached his message in an offensive way or that he caused emotional harm, breached the peace, or disrupted vehicle or pedestrian traffic flow. Nevertheless, the police ordered him to move to the free speech zone. He briefly complied but found that the designated protest area was far removed from the public, so no one could hear him. He therefore returned to the more populated area and was cited for violating the ordinance.
Olivier pleaded no contest to the charge in the local court so he could promptly appeal the constitutional issues. But the federal district court held that he could not appeal because, according to the case of Heck v. Humphrey (1994), a plea of guilty or no contest precludes an appeal, as success on appeal would imply the invalidity of the still-standing conviction (huh?). The Fifth Circuit agreed, so Olivier appealed to the Supreme Court. The High Court granted certiorari, so the case will be heard on its merits.
As Senior Counsel for the Foundation for Moral Law, I have filed an amicus brief with the Supreme Court supporting Olivier. We argued that the Heck ruling applies only to claims seeking retrospective damages for harms caused by allegedly wrongful criminal proceedings and did not apply to forward-looking claims that sought to enjoin future enforcement of unconstitutional laws. A litigant may have valid reasons for preferring to litigate his constitutional claims in civil rather than criminal court, e.g., better opportunities for discovery by deposition, inability to afford the costs of dual litigation, and the advantage of interpleading other parties by joinder or class action.
But our brief focused upon Olivier’s First Amendment rights. Free exercise of religion and freedom of speech are God-given rights and the foremost rights guaranteed in the Bill of Rights. Freedom of expression is a check on government power, and the free exchange of ideas is the best way to arrive at the truth. With a few well-established exceptions (obscenity, defamation, fighting words, criminal conspiracy, fraud, inciting imminent insurrection), freedom of expression deserves full constitutional protection.
The City of Brandon will argue that the government has the authority to establish time, place and manner restrictions on the exercise of free speech. People have a right to demonstrate in protest, but the City can require that they not demonstrate on Main Street during rush hour traffic.
In recent years, universities have been imposing such restrictions and calling them “free speech zones.” Those who wish to demonstrate or advocate their ideas may do so within specified areas to avoid offending the sensibilities of vulnerable students. But lower federal courts have held free speech zones unconstitutional in Khademi v. South Orange County Community College District (2002), Pro-Life Cougars v. University of Houston (2003), and Service Employee International Union, Local 660 v. City of Los Angeles (2000). In Uzuegbunam v. Preczewski (2021), the Supreme Court held that a speaker could claim damages for a free speech zone violation even though the college had eliminated its free speech zone before the case reached the Court.
Here's why free speech zones pose a threat to free expression. As we explain in our brief, suppose a federal executive order provided that all speeches and demonstrations concerning President Trump’s tariff policies may “take place within the confines of a designated location 50 miles south of Point Barrow, Alaska, a wilderness area inhabited by caribou, polar bears, and few other living creatures.” As we argued:
The right of free speech is more than just the right to give a speech in an open, empty field. Communication is not really communication unless others can hear, read, or view the message. The freedom of expression guaranteed by the First Amendment clearly contemplates both speakers and listeners.
Confining speech to an area in which there are few if any listeners is akin to prohibiting speech entirely.
The restriction that Olilvier may not use any sound amplifier that is clearly audible more than 100 feet from the free speech zone clearly demonstrates that the purpose of the ordinance was not just to protect the flow of traffic. My wife and I tested this outside our home as I was writing this brief, and we found that we can hear each other at distances more than 100 feet without amplification and without raising our voices. The purpose of the ordinance was to prevent Olivier from making himself heard.
If it were necessary to protect the flow of traffic, the City could have done so in far less restrictive ways. The City could have (1) required speakers to use a different area only if there was an actual problem with the flow of traffic, or (2) applied the ordinance only to demonstrations involving multiple persons, or (3) moved him to an area where he could still encounter a substantial number of listeners, or (4) allowed him to speak with amplification. Because the ordinance goes far beyond what might be necessary to preserve the free flow of traffic, it violates the First Amendment.
I thank God that Olivier dared to stand up for his convictions and for his First Amendment rights. I hope the Court will use this case to strike down free speech zones entirely. In fact, the Constitution establishes one free speech zone – the entire United States of America.
Correction: The original piece misspelled Mr. Olivier's name. We regret the error.
Colonel Eidsmoe serves as Professor of Constitutional Law for the Oak Brook College of Law & Government Policy (obcl.edu), as Senior Counsel for the Foundation for Moral Law (morallaw.org), and as Pastor of Woodland Presbyterian Church of Notasulga, Alabama (woodlandpca.org). He may be contacted for speaking engagements at [email protected].
The views and opinions expressed here are those of the author and do not necessarily reflect the policy or position of 1819 News. To comment, please send an email with your name and contact information to [email protected].
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