Amicus Brief: Hershey v. Bossier City

Richard Hershey was distributing leaflets advocating for Christian vegetarianism outside a Christian rock concert in Bossier City, Louisiana. He was distributing the flyers peacefully, and he wasn't blocking anyone from entering or leaving. The music arena is publicly owned, and Mr. Hershey was handing out leaflets on a public sidewalk that had no written policy about leafletting. At least one other person was distributing commercial literature promoting a local radio station. Yet Mr. Hershey was harassed by five police and security officers who descended on him and threatened to arrest him for peacefully distributing religious leaflets in a traditional public forum—a public sidewalk in a public park surrounding a public arena. One officer even waved his handcuffs and threatened to take him to jail. Mr. Hershey tried to explain his constitutional rights, but the officers demanded he leave the public area.

Mr. Hershey sued for the violation of his First Amendment rights. Ultimately the district court granted qualified immunity to the officers. Qualified immunity protects government officials from liability unless the right that is alleged to be violated is "clearly established" in the jurisdiction. The 5th circuit upheld the district court. Now on petition for Supreme Court review, Mr. Hershey is challenging whether qualified immunity should be given when the violation of a constitutional right is sufficiently obvious.

The Manhattan Institute has filed a brief in support of Mr. Hershey's petition. We argue that rights like leafletting in public areas have been settled for centuries decades, if not centuries. Government officials should not get qualified immunity when the right is clear enough for a grade schooler to understand. Moreover, cases like Mr. Hershey's—where he was "just" bullied and threatened and not given any official citation—rarely get to court, therefore it is difficult to "clearly establish" the right. The Supreme Court should review the case and protect the most basic and obvious constitutional rights.

Ilya Shapiro is a senior fellow and director of Constitutional Studies at the Manhattan Institute. Follow him on Twitter here.

Trevor Burrus is a legal policy fellow at the Manhattan Institute.

With thanks to associate Addison Gills