Supreme Court sides with antiabortion activist in free speech case

The Supreme Court on Friday ruled unanimously that an antiabortion activist can challenge a local law that limits protests to a designated area. The law violates free speech rights, he contends.

Gabriel Olivier, an evangelical preacher, was arrested in May 2021 by police in Brandon, Mississippi, for protesting outside of a city amphitheater with a group. They waved pictures of aborted fetuses, passed out fliers and used a loudspeaker. The protest took place outside of a designated area for demonstrations in violation of a city ordinance.

Olivier pleaded no contest to violating the ordinance. He was issued a small fine and sentenced to one year’s probation.

A few months later, Olivier sued the city, alleging the local law violated his constitutional free speech rights. Lower courts blocked Olivier’s lawsuit from moving forward, citing a rule that says criminal defendants cannot file civil rights lawsuits that could undermine the legality of their convictions.

Doing so could allow a defendant to walk free and end-run the normal criminal appeals process. At issue before the Supreme Court was whether Olivier was subject to what is known as the Heck rule.

The rule was named after the 1994 precedent Heck v. Humphrey, in which the high court unanimously held that a defendant needed to be cleared in criminal court before suing over the legality of their conviction.

The city had contended the rule should apply to Olivier. Otherwise he could invalidate his conviction, setting a precedent in which the convictions of other criminal defendants could be undermined outside of the criminal appeals process.

During oral arguments in December, the court weighed whether to apply the rule to Olivier.

But on Friday the justices sided with Olivier’s attorneys who said he should be able to sue because his lawsuit would have no practical effect on his conviction. Olivier was never imprisoned, they said, and he sued only to shield himself from future charges under the statute.

Justice Elena Kagan, who delivered the opinion of the court, said that if Olivier wasn’t able to bring a lawsuit he would face an “untenable choice.” She compared his situation to a scene in “The Odyssey,” in which the protagonist sails his ship between two monsters. Olivier could “violate the law and suffer the consequences (the Scylla), or else give up what he takes to be his First Amendment rights (the Charybdis).”

So, she said, Olivier’s lawsuit “may proceed.”

Olivier’s attorneys cheered the decision.

“It’s just common sense that a citizen who is arrested under an unconstitutional law should be able to challenge that law,” said Allyson Ho, partner at Gibson Dunn, who argued the case for Olivier in December. “As people of faith, we look to the judiciary to protect our constitutional right to spread the Gospel.”