Law-Abiding Citizens Deserve Better: ACLJ Files at Supreme Court Defending Religious Speech

When a law-abiding American peacefully shares his faith on a public sidewalk, the government should not be able to silence him with threats of arrest and then hide behind qualified immunity. Yet that is exactly what happened in Bossier City, Louisiana.

On February 28, 2020, Richard Hershey stood on a public sidewalk outside a city-owned arena during a Christian concert. He was distributing free religious literature on behalf of a Christian organization. He was surrounded by other leafleteers doing the same thing for advertisements and commercial businesses. He was not blocking traffic. He was not shouting. He was not breaking any law. He was simply exercising his First Amendment rights to free speech and free exercise of religion – the same rights that generations of Americans have used to share the Gospel in public places.

City officers and private security approached him, waved handcuffs, and ordered him to leave or face arrest. They treated a traditional public forum as if it were private property. They cut off his attempt to explain his rights. Most shocking: They allowed other commercial leafleting to continue while shutting down his religious message. Hershey later sued under 42 U.S.C. § 1983, the federal statute that allows citizens to hold government officials accountable for violating constitutional rights.

A divided panel of the Fifth Circuit granted the officers qualified immunity. In doing so, it rejected the argument that the constitutional violation was so obvious that the officers should not receive immunity under the Supreme Court’s decision in Hope v. Pelzer. That case held that government officials can be held liable when their conduct is so clearly unlawful that no factually identical prior case is required. The Fifth Circuit, however, treated Hope as largely limited to Eighth Amendment claims involving prisoners.

That is where the ACLJ stepped in.

We have filed an amicus briefat the U.S. Supreme Court urging the Justices to take the case and correct this error. Our brief makes a simple but critical point: The principles that protect even incarcerated persons from obvious constitutional violations should also protect law-abiding citizens who are peaceably exercising their First Amendment rights.

There is something deeply wrong with a legal system that gives greater practical protection to criminals invoking the Eighth Amendment’s protection (against cruel and unusual punishment) than to ordinary Americans invoking the Free Speech and Free Exercise Clauses of the First Amendment. Street preachers, sidewalk counselors, and everyday believers who share their faith in public should not face a higher bar to justice than those already behind bars. When government officials silence religious speech on a public sidewalk, the violation is not subtle. It is obvious. And when the violation is obvious, qualified immunity should not become a free pass.

The stakes extend far beyond one preacher in Louisiana. Across the country, the ACLJ regularly defends Christians who are threatened, cited, or arrested simply for sharing the Gospel on public sidewalks. Time and again we see the same pattern: Officials treat public forums as if they were private property, enforce vague or discriminatory rules, and then claim immunity when challenged. Courts, however, because of the doctrine of qualified immunity, generally require that victims show nearly identical prior cases before allowing these claims to proceed. The Supreme Court must clarify that some cases, like what happened to the Christian evangelist in this case, are so egregious that qualified immunity should not apply, regardless of prior cases. Without this, government actors may continue to chill religious speech with little fear of accountability.

The First Amendment does not merely protect private belief. It protects the right to speak, to distribute literature, and to evangelize in the public square. As the Supreme Court has long recognized, the hand distribution of religious tracts is “an age-old form of missionary evangelism.” That right means little if officials can shut it down and then walk away shielded by qualified immunity.

The ACLJ is urging the Supreme Court to make clear that Hope v. Pelzer is not a one-way street reserved for prisoners. Its core principle – that some constitutional violations are so obvious they require no factually identical precedent – must apply with full force to Free Speech and Free Exercise claims brought by law-abiding citizens.

Religious liberty is not a second-class right. Peaceful evangelism on a public sidewalk is not a privilege that the government may revoke at will. And law-abiding Americans who exercise their faith in public should never have fewer practical protections in court than those the system already affords to criminals.

We will continue fighting to make sure that remains true. Take action with us. Sign our petition: Defeat the Left’s War Against Christians.