The case was a procedural squabble over jurisdiction, and there was little reason to question the preacher’s sincerity.
I keep digging into the record about Todd Butler, the fresh nominee to the Fifth Circuit. I wonder if anyone else bothered to do the same?
Butler’s most notable moment came from presenting Olivier v. City of Brandon before the Supreme Court. The questions posed were highly technical in nature:
1. Whether, in conflict with the Ninth and Tenth Circuits, this Court’s ruling in Heck v. Humphrey prevents § 1983 claims seeking only forward-looking relief when the plaintiff has already faced punishment under the challenged law.
2. Whether Heck v. Humphrey bars § 1983 claims by plaintiffs even if they never sought federal habeas relief.
The factual backdrop was not essential to the legal questions. These were pure questions of law. Yet Butler’s briefs included gratuitous digs at Gabe Olivier, a street preacher arrested by the City of Brandon.
In his certiorari brief opposing review, Butler likened street preaching to “domestic terrorism.”
The petitioner presents himself as “a Christian” who intends to peacefully “share[] his faith on public streets[.]” Pet.6. He carried his message in district court as well, insisting he does not hurl insults and maintains a conversational tone toward passersby. ROA.21. Video evidence contradicts this. On several occasions, the petitioner shouted insults at attendees, including terms like “whore,” “Jezebel,” “fornicator,” “drunkards,” and “sissy.” ROA.295-301. The behavior caused disturbances that could have escalated into violence without police intervention. ROA.293-301.
Group demonstrations are his typical approach, with individuals in his circle previously found guilty of simple assault for harassing citizens, and one court even describing their actions as “domestic terrorism.” ROA.398-424. The group pursued, taunted, spat on, harassed individuals, and at times moved in on a couple in close proximity.
That paragraph crosses a line of insult. He used quotation marks around “Christian,” as if to cast doubt on Olivier’s faith. And the accusation of “domestic terrorism” is profoundly polarizing. Once again, none of these points were necessary to a routine dispute about Heck v. Humphrey. Yet Butler felt compelled to attack the plaintiff.
Olivier’s response brief, submitted by Allyson Ho (Gibson Dunn) and First Liberty, pushed back:
The city opens (at 7–8) by belittling Olivier’s evangelistic efforts and says that while he claims to be “a Christian,” the evidence allegedly shows otherwise. But “no official, high or low, can dictate what shall be orthodox in religion.” West Virginia State Board of Education v. Barnette, 319 U.S. 624, 642 (1943). Contrary to the city’s sensational rhetoric, Olivier “identifies sins he believes the community should hear about” to share the message of salvation through Jesus Christ.
Olivier’s point is solid. The government cannot decide who is truly religious. If you hold to the Gospel, you have a duty to share your beliefs. What, then, does Butler imagine preachers accomplish?
One might have expected that after the certiorari grant Butler would retreat from this edge. After all, he seeks the votes of Justices Alito and Thomas. But he does not retreat.
The Respondent brief again questions whether Olivier’s activity constituted evangelizing and repeats the “domestic terrorism” assertion:
After it began, the petitioner traveled with a group to the Amphitheater to, in his own words, evangelize. J.A.5. The group’s evangelism included using a loudspeaker to address attendees with terms like “whores,” “Jezebels,” “grody,” “nasty,” “sissies,” and other disparaging labels.1 Pet.App.21a-23a. They carried large signs, some depicting aborted fetuses. Pet.App.29a.
FN1: Courts have equated the group’s more forceful conduct—such as spitting at people—with “domestic terrorism.” C.A.ROA.414.
The petitioner’s reply brief struck back forcefully:
The city disparages Olivier’s evangelism with inaccurate, unsupported accusations, even going so far as to equate his peaceful expression with “domestic terrorism.” Resp. Br. 3 n.1 (citing C.A. ROA 414). Olivier vigorously disputes this framing. The prosecution cited by the city concerned conduct by others in a different place. That prosecution does not allege Olivier participated in the alleged “aggressive conduct,” and there’s no basis for the city’s baseless insinuation that Olivier “spit on people.” Ibid.; see J.A. 26-27.
Many of President Trump’s appointees have taken steps favorable to religious liberty. Yet here, Butler actively targets a Christian, questions his energetic outreach, and likens him to a domestic terrorist.
Recall the era when school board meetings under the Biden administration were described as involving domestic terrorism? Senator Hawley challenged Attorney General Garland over that controversy.
There is much more to come.
