Hershey v. City of Bossier City

Richard Hershey was handing out religious leaflets on a public sidewalk outside of a Christian rock concert. Soon, several police officers and security officers threatened to arrest him, forcing Hershey to leave. Yet they didn’t threaten a nearby leafleteer passing out advertisements for a local radio station.

If that sounds like a clear-cut First Amendment violation, that’s because it is. Public sidewalks are traditional public forums, where the police can’t strong-arm a speaker to leave under threat of arrest because they don’t like the speaker’s message. But when Hershey sued the police and guards who did just that, the Fifth Circuit dismissed the lawsuit. 

Why? It held the police and guards have qualified immunity, a judge-made doctrine that shields officials from lawsuits unless they violate a “clearly established” constitutional right. Too often, qualified immunity lets officials escape accountability for committing even blatant First Amendment violations. Whatever purposes qualified immunity may serve, letting officials off the hook when they trample undoubted First Amendment rights must not be one of them.

That’s why FIRE, joined by three other organizations, has submitted a friend-of-the-court brief to the U.S. Supreme Court in support of Hershey's petition for the Court to hear his case. As the brief explains, there are few constitutional principles so well-known as those critical to protecting freedom of speech. When officials violate those long-settled principles—like Hershey’s right to share his religious views on a public sidewalk without fear of arrest—courts should not apply an inflexible standard for qualified immunity. Instead, the brief argues, the Supreme Court should make clear that in lawsuits involving obvious First Amendment freedoms, lower courts should apply the standard from Hope v. Pelzer, which allows plaintiffs to defeat qualified immunity when a controlling constitutional principle applies with “obvious clarity.”