Moran Leads Amicus Brief to SCOTUS Protecting First Amendment Rights

Congressman Nathaniel Moran (TX-01) led an amicus brief in Hershey v. Bossier City to protect First Amendment rights and ensure religious persecution doesn't persist in America. Rep. Glenn Grothman (WI-06) joined the amicus brief.

"Mr. Hershey's constitutional rights were treated as optional the moment officers decided to ignore them," said Rep. Moran. "The Fifth Circuit's ruling lets that stand, creating circuit split that leaves citizens with weaker right to free speech and right to religious free exercise which is contrary to the Founders' intent. The violation of these First Amendment rights should alarm everyone, regardless of politics or faith."

The brief argues:

• Double Protection - The Constitution "doubly protects" Hershey's conduct as both free speech and free religious exercise. Public evangelism through pamphlets is a time-honored American tradition predating the Founding itself.

• Obviousness Exception - Qualified immunity was never meant to shield officers from obvious constitutional violations. Hope v. Pelzer held no factually identical precedent is required when a violation is plain. That rule must extend to the First Amendment.

• Congressional Intent - Section 1983 was enacted to hold government actors accountable for constitutional violations-including violations of religious expression. The Fifth Circuit's approach undermines that congressional mandate.

• Circuit Split - Other circuit courts have applied the obviousness exception to First Amendment claims and this case is essential to resolving this issue for Americans.

Background:

In February 2020, Richard Hershey was peacefully distributing religious leaflets on a public sidewalk near an arena in Bossier City, Louisiana. He caused no disturbance and avoided staircases and parking lots. Nearby, another individual was distributing commercial advertising without incident. Two Bossier City police officers and several private security guards ordered Hershey to leave, threatening arrest if he continued. When he cited his First Amendment rights, they claimed the sidewalk was private property-a claim that was factually false.

Mr. Hershey sued the City, the officers, and the security guards, alleging violations of the First Amendment under 42 U.S.C. § 1983. His claim against the City argued that inadequate training of its employees caused the constitutional violation (Monellclaim).

The district court dismissed the Monell claim and granted the officers qualified immunity. On appeal, the Fifth Circuit reversed the dismissal of the Monell claim but affirmed qualified immunity for the officers, citing prior en banc precedent declining to adopt an "obviousness" exception in the First Amendment context.

Read the full amicus brief here.

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