Two ‘Free Speech’ SCOTUS Cases Are About Protecting All Rights

Federal law guarantees that if your rights are violated by an agent of the government, you have the chance to protect your freedom in court. That assurance will be either affirmed or greatly cut back in a pair of cases that the Supreme Court heard last week involving a Christian street preacher and a pro-life pregnancy resource center. While the facts of both disputes are drawing much well-deserved attention, the complex legal questions before the court will have an effect far beyond the particular parties involved.

Under Section 1983 of the U.S. Code, anyone can sue another party that, while acting under the color of state or federal law, deprives him of his rights. For example, a nurse who was fired from a Michigan-funded hospital for refusing to follow the state’s LGBT ideology could sue for violations of her First Amendment protections. Oftentimes these Section 1983 cases are designed to prevent future illegal activity by the government. Plaintiffs often seek injunctive or declaratory relief barring a state official from restricting their freedom again. This capability, which was originally enacted in the Reconstruction era to protect newly freed former slaves, is one of the most commonly used methods to ensure that individual liberties are respected.

In a case argued before the U.S. Supreme Court last week, First Choice, a pregnancy resource center filed a Section 1983 claim against New Jersey Attorney General Matthew Platkin. Platkin issued a subpoena (which threatened serious penalties for noncompliance) to the nonprofit demanding that it release identifying personal information, such as the names, phone numbers, and home addresses of its donors. First Choice argued that the subpoena itself, even without a state court order demanding compliance, chilled its donors’ free speech and association rights — a typical donor will be less likely to give to First Choice if they believe they will be doxed for doing so. After First Choice filed its claim in a federal court, Platkin sued the center in New Jersey courts to obtain an order forcing it to comply with his subpoena.

First Choice’s suit was dismissed in federal court twice before reaching SCOTUS. The courts held that, since the subpoena technically does not itself carry the force of law, First Choice must first lose its case to Platkin in state court before actually suffering the type of injury that Section 1983 demands. However, due to several legal principles, if First Choice goes through the process in state court, it likely will never be able to argue in federal court if it loses the fight in state court. In effect, it has been prevented entirely from any opportunity to protect its rights.

In another case argued last week at the Supreme Court, an evangelical Christian named Gabriel Olivier is also seeking to secure his rights to bring a Section 1983 claim in federal court. He was convicted and fined for breaking a city ordinance in Mississippi that banned him from preaching in public unless he remained in a free speech bubble far from anyone who could hear him. In his initial criminal proceedings, Olivier pled no contest and simply accepted the fine and probation.

Months later, perhaps after realizing he could confront the city’s highly problematic restriction, he asked a federal court to prevent the city from enforcing it against him in the future. His case was dismissed based on a 1994 precedent that prevents prisoners from challenging the validity of their prior convictions via Section 1983 rather than through habeas corpus, the appropriate vehicle for the incarcerated to challenge unconstitutional government behavior.

Olivier’s attorneys argue that, since he was never actually detained, he never had the opportunity to ask for habeas relief. If he is unable to bring a Section 1983 suit asking for the court’s protection, there is no other way for him to dispute his likely unlawful conviction. Olivier aptly argues that his appeal is the exact type of request that Section 1983 exists to enable. In fact, his prior conviction shows that there is a real threat of his right to free speech being impeded again in the future.

Both of these cases, First Choice v. Platkin and Olivier v. City of Brandon, are often being reported on for only their surface-level consequences. First Choice, while centering around donor privacy, will have a reach far beyond the pregnancy resource center and its supporters. If the court rules against First Choice, countless others will never have the opportunity to vindicate their rights in federal court. Any time a hostile government actor attacks individuals or organizations for their beliefs, they may be prevented entirely from protecting themselves in the manner that federal law permits.

Similarly, if Olivier loses his case, anyone who has been convicted (but not detained) and has had his rights violated by that conviction will be barred from ever getting in the door of a federal courthouse to challenge the constitutionality of the law they were sentenced under. While the First Amendment issue of restricting controversial religious speech is serious and needs attention, Olivier won’t decide only a free speech issue; it will decide whether citizens can defend their constitutional rights in court at all.

First Choice and Olivier both directly implicate highly debated spheres of activity in modern American life. One involves the rights of a pro-life center to ensure the privacy of nearly all its patrons. Another comes from a fiery Christian preacher who was forced out of the public square. First Choice and Gabriel Olivier not only deserve the chance to plead their cases before a federal judge, but U.S. law guarantees it.

In both of these disputes, the justices of the U.S. Supreme Court can uphold a key vehicle for every citizen to protect his freedom. The technical questions may not sound as attractive or weighty as the constitutional rights that make the headlines, but the details matter and may reach into every corner of American life.

Joseph Clement is the content and program manager at Napa Legal Institute, a Catholic organization that supports the work of faith-based nonprofits and attorneys. He has written on the Supreme Court, religious liberty, and nonprofit law.