Amicus Brief: Olivier v. City of Brandon

In 2021, Gabriel Olivier was sharing his faith near an amphitheater in a public park in Brandon, Mississippi when the city’s chief of police confronted Olivier with a recently amended city ordinance requiring “protests” to occur in a designated area. Finding the designated area remote and isolated, Olivier returned to the park, was charged with violating the ordinance, and pled no contest, agreeing to pay a fine.

Wanting to speak in the park again, Olivier then challenged the ordinance in court under the First and Fourteenth Amendments, seeking an injunction prohibiting future enforcement of the law against his expressive activity. The district court barred Olivier’s request on the grounds that a suit was precluded by his previous plea. As a result, Olivier cannot challenge Brandon’s ordinance, even though it persists in restricting his (and others’) speech and he risks future penalties should he continue speaking.

On appeal, the Fifth Circuit panel affirmed, splitting from the Ninth and Tenth Circuits, which do not bar prospective relief. The appellate court denied Olivier’s petition for rehearing en banc (the whole court) by only one vote and over three dissents from noted conservative judicial luminaries. The Manhattan Institute filed a brief supporting Olivier’s petition for certiorari and, with the Supreme Court having granted review, now file one on the merits. We emphasize the key point from Judge Andrew Oldham’s dissent from denial of en banc review in the Fifth Circuit: that seeking injunctive relief against future unconstitutional actions is distinct from seeking damages or a declaratory judgment regarding prior proceedings. The brief is in line with MI’s longstanding work in defense of the First Amendment and a well-functioning judicial process.

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

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