In Bossier, Louisiana, Richard Hershey stood outside of a Christian rock concert (on public property) to hand out pamphlets to spread awareness about his religion: the Christian Vegetarian Association. While he was expressing his First-Amendment right of free-exercise of religion and of free speech, he was threatened with arrest and forced to leave by both the local police and the concert arena staff. As a result, Hershey sued the city, along with those he found to be individually guilty, including the Deputy Marshal present, as well as several others who he also claimed to have curbed his First Amendment rights (Richard Hershey v. City of Bossier (LA), Bobby Gilbert, Daniel Stoll, David Smith, Tyshon Harvey, Eugene Tucker).
However, Hershey “filed a federal civil rights lawsuit under a statute commonly known as Section 1983. But rather than vindicate his rights, the federal district court granted the officers qualified immunity, and the US Court of Appeals for the Fifth Circuit affirmed.” In other words, Hershey attempted to express how his First Amendment right was infringed upon, and used Section 1938 to hold his perpetrators accountable. Yet, he was unsuccessful as the defendants were granted qualified immunity. Qualified immunity is a protection which “allows state and local officials to avoid personal consequences related to their professional interactions unless they violate ‘clearly established law’ and has been repeatedly used by police officers to escape accountability and civil liability.” This application of qualified immunity complicates a seemingly simple case of free exercise, and raises the following constitutional question: To what extent does the First Amendment protect an individual’s right to distribute religious literature on publicly owned property, and can government officials avoid liability for restricting that expression by relying on qualified immunity or delegating authority to private entities? What takes precedence: The First Amendment or qualified immunity?
To answer the first prong of the above question, this case clearly relates to Marsh v. Alabama (1946). In this case, the Supreme Court ruled that a privately owned company town could not prohibit a Jehovah’s Witness from distributing religious literature on its streets. This case is relevant to Hershey v. City of Bossier because both involve the distribution of religious materials in spaces that serve the public. In Hershey, the arena was publicly owned, yet it was privately managed, thus raising questions similar to Marsh about whether private management could limit First Amendment protections. That said, Marsh supports the argument that constitutional protections for public expression should not necessarily disappear simply because private entities exercise control over property traditionally used by the public. Although Marsh and Hershey differ in several factual and legal respects, both cases involve the distribution of religious materials in spaces that serve a public function. Their similarities raise the question of whether constitutional protections for religious expression should extend to these quasi-public spaces, even when private entities exercise some degree of control over them. Thus, Marsh provides a useful legal foundation for examining the First Amendment issues raised in Hershey, proving that there is a clear violation of First Amendment rights at play here.
However, the granting of qualified immunity to the defendants raises an important question about the applicability of existing legal precedent. One particularly relevant case is Hope v. Pelzer (2002), which also examines the relationship between qualified immunity and constitutional protections. Specifically, this case dictates that qualified immunity cannot trump the the Bill of Rights In fact, Oyez explains that the the case concluded that “prison guards could be shielded from liability for their constitutionally impermissible conduct if their actions did not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” So, actors of the state cannot be granted qualified immunity when someone’s rights are violated in a way that would appear reasonable. However, as this case does not deal with the First Amendment or religious liberty, the lower courts did not invoke its precedent, ultimately upholding the officers’ qualified immunity.
With all of this in mind, I believe that the violation of the First Amendment should trump the qualified immunity at hand. It is beyond clear that Hershey was not guilty of any offense that solicited the threat of his arrest. His religious speech was entirely protected by the First Amendment, and there was a clear and obvious violation of his rights. Because of this, I think that this case should follow the precedent of Hope. While the lower courts did not use it as a precedent, I believe that qualified immunity should never supersede any of the core rights listed in the Bill of Rights. This case specifically showcases that religious liberty was, in fact, deprived from Hershey. Very interestingly, this case has been appealed to the United States Supreme Court, with both parties filing petitions for a writ of certiorari in 2026, but the federal review of this case has not yet been granted.
References
https://firstliberty.org/wp-content/uploads/2026/06/HersheyPetition_Redacted.pdf
https://www.law.cornell.edu/uscode/text/42/1983
https://www.scotusblog.com/cases/hershey-v-city-of-bossier-city/
https://www.naacpldf.org/qualified-immunity/
https://www.oyez.org/cases/2001/01-309
3 comments:
I agree that Marsh is a helpful comparison, and I think where Hershey was standing matters. If he was handing out pamphlets on a sidewalk people regularly use, the comparison to the company town’s streets is stronger. If he was in an area reserved for concert entry, the officers might have thought different rules applied. That detail matters when deciding whether they had fair warning that threatening arrest violated his rights.
I mostly Agree that immunity should not allow public officials to avoid responsibility when someone’s First Amendment rights are violated. I think it is unfair that Hershey was threatened with arrest simply for trying to share his religious beliefs with others. This case brings up an important question about how religious freedom can be protected if government officials are not held accountable for restricting it.
I agree that qualified immunity can be a problem when public officials can avoid responsibility for restricting someone's religious expression. What I found interesting was that Hershey was handing out religious pamphlets outside a Christian concert, yet he was still threatened with arrest. It really goes to show how difficult it can be to actually protect your constitutional rights when officials are shielded from personal consequences.
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