Amicus Curiae Brief — Richard Hershey, Petitioner v. City of Bossier City, Louisiana, et al.

Supreme Court briefJul 16, 2026

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No. 25-1389

IN THE

Supreme Court of the United States

RICHARD HERSHEY,

PETITIONER,

CITY OF BOSSIER CITY, LOUISIANA, ET AL.,

RESPONDENTS.

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Fifth Circuit

BRIEF OF U.S. REPRESENTATIVES NATHANIEL

MORAN AND GLENN GROTHMAN AS AMICI

CURIAE IN SUPPORT OF PETITIONER

JUDD E. STONE II

Counsel of Record

CHRISTOPHER D. HILTON

ARI CUENIN

CODY C. COLL

STONE HILTON PLLC

600 Congress Ave.

Suite 2350

Austin, Texas 78701

judd@stonehilton.com

(737) 465-3897

Counsel for Amici Curiae

QUESTION PRESENTED

The Petition presents the following question:

Whether the principles of Hope v. Pelzer,

536 U.S. 730 (2002), are limited to Eighth

Amendment claims or extend to Free

Speech and Free Exercise claims such that

petitioner’s constitutional claims should

not be barred by qualified immunity.

The Court should grant the Petition and hold that

Hope’s reasoning applies to claims arising under the

First Amendment.

(I)

TABLE OF CONTENTS

Page

Question Presented ......................................................... I

Table of Contents ........................................................... II

Table of Authorities ..................................................... III

Interest of Amici Curiae ................................................ 1

Summary of Argument ................................................... 1

Argument ......................................................................... 3

I. The First Amendment Enshrines Ancient,

“Doubly Protected” Rights to Publicly

Evangelize. ........................................................... 4

II. The Obviousness Exception Is Consistent with

Qualified Immunity’s Purposes. ....................... 10

III. This Case Is an Ideal Vehicle to Resolve a

Circuit Split on Issues of Exceptional

Importance. ........................................................ 13

Conclusion ...................................................................... 22

(II)

TABLE OF AUTHORITIES

Cases

A.D. v. Cal. Highway Patrol,

712 F.3d 446 (9th Cir. 2013) .........................................14

Agostini v. Felton,

521 U.S. 203 (1997) ........................................................15

Akins v. Fulton County,

420 F.3d 1293 (11th Cir. 2005) .....................................14

Berge v. Sch. Comm. of Gloucester,

107 F.4th 33 (1st Cir. 2024) ..........................................14

Booker v. S.C. Dep’t of Corr.,

855 F.3d 533 (4th Cir. 2017) .........................................14

Brosseau v. Haugen,

543 U.S. 194 (2004) .................................................. 13, 16

Browder v. City of Albuquerque,

787 F.3d 1076 (10th Cir. 2015) .....................................16

Burwell v. Hobby Lobby Stores, Inc.,

573 U.S. 682 (2014) ......................................................8, 9

Cantwell v. Connecticut,

310 U.S. 296 (1940) ......................................................4, 7

Cochran v. U.S. Sec. & Exch. Comm’n,

20 F.4th 194 (5th Cir. 2021), aff’d and remanded

sub. nom. Axon Enter., Inc. v. Fed. Trade

Comm’n, 598 U.S. 175 (2023) .......................................15

Corp. of Presiding Bishop of Church of

Jesus Christ of Latter-day Saints v. Amos,

483 U.S. 327 (1987) ........................................................19

Cutter v. Wilkinson,

544 U.S. 709 (2005) ..........................................................9

(III)

District of Columbia v. Wesby,

583 U.S. 48 (2018).................................................... 13, 16

Employment Division v. Smith,

494 U.S. 872 (1990) ......................................................8, 9

Harlow v. Fitzgerald,

457 U.S. 800 (1982) ........................................................12

Heffron v.

Int’l Soc’y for Krishna Consciousness, Inc.,

452 U.S. 640 (1981) .................................................. 19, 21

Holt v. Hobbs,

574 U.S. 352 (2015) ..........................................................9

Hope v. Pelzer,

536 U.S. 730 (2002) .................................................. 12-16

Janny v. Gamez,

8 F.4th 883 (10th Cir. 2021) .........................................14

Kennedy v. Bremerton Sch. Dist.,

597 U.S. 507 (2022) ...................................... 4, 7, 9, 19, 21

Little Sisters of the Poor Saints Peter & Paul

Home v. Pennsylvania,

591 U.S. 657 (2020) ..........................................................9

MacIntosh v. Clous,

69 F.4th 309 (6th Cir. 2023) .........................................14

Mayfield v. Mo. House of Representatives,

122 F.4th 1046 (8th Cir. 2024) .....................................14

McGreal v. Ostrov,

368 F.3d 657 (7th Cir. 2004) .........................................14

McGreevy v. Stroup,

413 F.3d 359 (3d Cir. 2005) ..........................................14

Mitchum v. Foster,

407 U.S. 225 (1972) ........................................................11

Monell v. Dep’t of Social Servs.,

436 U.S. 658 (1978) ........................................................21

Monroe v. Pape,

365 U.S. 167 (1961) .................................................. 10, 11

Moore v. Hartman,

388 F.3d 871 (D.C. Cir. 2004), rev’d and remanded on other grounds, 547 U.S. 250 (2006) .........14

Murdock v. Pennsylvania,

319 U.S. 105 (1943) ......................................................4, 8

Nagle v. Marron,

663 F.3d 100 (2d Cir. 2011) ..........................................14

Palko v. Connecticut,

302 U.S. 319 (1937), overruled on other grounds

by Benton v. Maryland, 395 U.S. 784 (1969) ...............4

Pearson v. Callahan,

555 U.S. 223 (2009) ........................................................11

Pierson v. Ray,

386 U.S. 547 (1967) ........................................................11

Ramirez v. Collier,

595 U.S. 411 (2022) ..........................................................9

Sause v. Bauer,

585 U.S. 957 (2018) ........................................................15

Sause v. Bauer,

733 F. App’x 456 (10th Cir. 2018) ................................15

Taylor v. Riojas,

592 U.S. 7 (2020)................................................ 13, 14, 15

Town of Greece v. Galloway,

572 U.S. 565 (2014) .................................................. 17, 19

United States v. Lanier,

520 U.S. 259 (1997) ............................................ 12, 13, 15

Villarreal v. City of Laredo,

94 F.4th 374 (5th Cir. 2024), cert. granted,

judgment vacated sub. nom. Villarreal v.

Alaniz, 145 S. Ct. 368 (2024) ............................ 14, 15, 16

Villarreal v. City of Laredo,

134 F.4th 273 (5th Cir. 2025), cert. denied sub.

nom. Villarreal v. Alaniz, 146 S. Ct. 939 (2026) ........14

Watchtower Bible & Tract Soc’y of N.Y., Inc. v.

Village of Straton,

536 U.S. 150 (2002) ..........................................................8

Constitutional Provisions

U.S. Const. amend. I .................. 1-4, 7-9, 13, 14, 16, 18-21

U.S. Const. amend. IV ......................................... 13, 15, 16

U.S. Const. amend. VIII .............................................. 2, 13

U.S. Const. amend. XIV ..................................................10

Statutes and Other Authorities

18 U.S.C. § 242 ..................................................................12

20 U.S.C. § 4071 ..................................................................8

42 U.S.C. § 1983 ...................................2, 3, 9-12, 15, 16, 20

42 U.S.C. § 2000e-2.............................................................8

42 U.S.C. § 12113(d) ...........................................................8

S. Ct. R. 10 ..........................................................................3

S. Ct. R. 37 ..........................................................................1

VII

John Adams, “From John Adams to

Massachusetts Militia, 11 October 1798,”

Founders Online, National Archives, available

at https://founders.archives.gov/documents/

Adams/99-02-02-3102 .............................................. 17-18

1 ANNALS OF CONG. (Joseph Gales ed., 1834) .................7

BERNARD BAILYN, THE IDEOLOGICAL ORIGINS OF

THE AMERICAN REVOLUTION (enl. ed. 1992) ....... 5, 7, 8

4 WILLIAM BLACKSTONE, COMMENTARIES ON THE

LAWS OF ENGLAND .........................................................5

Charter of Rhode Island and Providence

Plantations of July 15, 1663, available at

https://avalon.law.yale.edu/17th_century/

ri04.asp .............................................................................6

Mark W. Cordes, Politics, Religion, and the First

Amendment, 50 DEPAUL L. REV. 111 (2000) ...... 20, 21

Mark W. Cordes, Religion As Speech: The

Growing Role of Free Speech Jurisprudence in

Protecting Religious Liberty, 38 SW. L. REV.

235 (2008) .......................................................................17

ALEXIS DE TOCQUEVILLE, DEMOCRACY IN

AMERICA (Henrey Reeve trans.,

Digireads.com Publishing 2016) (1831) ......................18

Theodore Eisenberg, Section 1983: Doctrinal

Foundations and an Empirical Study, 67

CORNELL L. REV. 482 (1982) .......................................10

THE FEDERALIST NO. 10 (J. Madison)

(Clinton Rossiter ed., 1961) ................................... 17, 20

THE FEDERALIST NO. 34 (A. Hamilton)

(Clinton Rossiter ed., 1961) ...........................................5

VIII

THE FEDERALIST NO. 51 (J. Madison)

(Clinton Rossiter ed., 1961) .........................................20

James L. Gibson, Losing Legitimacy: The

Challenges of the Dobbs Ruling to Conventional

Legitimacy Theory, 68 AM. J. OF POL. SCI.

1041 (2024) .....................................................................19

CLARK W. GILPEN, THE MILLENARIAN PIETY OF

ROGER WILLIAMS (1979) ................................................5

JAMES H. HUTSON, RELIGION AND THE FOUNDING

OF THE AMERICAN REPUBLIC (1998) ..........................17

Speech of Governor John Jay (Nov. 4, 1800), in

THE SPEECHES OF THE DIFFERENT GOVERNORS

TO THE LEGISLATURE OF THE STATE OF NEW

YORK (J. B. Van Steenbergh, ed. 1825) ......................18

Thomas Jefferson, “From Thomas Jefferson to

John Thomas, 11 October 1798,” Founders

Online, National Archives, available at

https://founders.archives.gov/documents/Jeffers

on/99-01-02-6807............................................................18

CHARLES C. JONES, JR., BIOGRAPHICAL

SKETCHES OF THE DELEGATES FROM GEORGIA

TO THE CONTINENTAL CONGRESS (1891) ...................18

FRANK LAMBERT, “PEDLAR IN DIVINITY”:

GEORGE WHITEFIELD AND THE TRANSATLANTIC

REVIVALS (1994) .............................................................8

Stuart Leibiger, James Madison and

Amendments to the Constitution, 1787-1789:

“Parchment Barriers,” 59 J.S. HIST. 441 (1993) ..... 6-7

Michael W. McConnell, The Origins and

Historical Understanding of Free Exercise of

Religion, 103 HARV. L. REV. 1409 (1990) .................6, 7

John P. Murphy, Rome at the Constitutional

Convention, 51 CLASSICAL OUTLOOK 112 (1974) .........4

Robert G. Natelson, The Constitution and the

Public Trust, 52 BUFF. L. REV. 1077 (2004) ................5

DAVID PAUL NORD, FAITH IN READING:

RELIGIOUS PUBLISHING AND THE BIRTH OF

MASS MEDIA IN AMERICA (2004) ...................................8

THOMAS PAINE, COMMON SENSE (1776), reprinted

in COMMON SENSE, RIGHTS OF MAN, AND

OTHER ESSENTIAL WRITINGS OF THOMAS PAINE

(2003) ..............................................................................17

Petition for Writ of Certiorari, City of Bossier

City v. Hershey, No. 25-1323 (May 13, 2026) .............21

Resolution of the First Congress Submitting

Twelve Amendments to the Constitution,

available at https://avalon.law.yale.edu/

18th_century/resolu02.asp ................................. 7, 18-19

Arthur Schlesinger, America: Experiment or

Destiny?, 82 AM. HIST. REV. 505 (1977) ...................4, 5

Kristi Sweet, Kant on Free Speech: Criticism,

Enlightenment, and the Exercise of Judgment

in the Public Sphere, 29 KANTIAN REV. 61

(2024) ................................................................................5

Nicole Turner, Beyond Speeches and Leaders:

The Role of Black Churches in the

Reconstruction of the United States, J. OF THE

CIVIL WAR ERA: MUSTER (Aug. 14, 2020),

https://www.journalofthecivilwarera.org/

2020/08/beyond-speeches-and-leaders-the-roleof-black-churches-in-the-reconstruction-of-theunited-states/ ........................................................... 10-11

Va. Declaration of Rights art. XII, available at

https://avalon.law.yale.edu/18th_century/

virginia.asp ......................................................................5

Keith Werhan, The Classical Athenian Ancestry

of American Freedom of Speech, 2008 SUP. CT.

REV. 293 ...........................................................................4

John Witte, Jr., “A Most Mild and Equitable

Establishment of Religion”: John Adams and

the Massachusetts Experiment, 41 J. OF

CHURCH & STATE 213 (1999) .......................................17

John Witte, Jr., Back to the Sources? What’s Clear

and Not So Clear About the Original Intent of

the First Amendment, 47 BYU L. Rev. 1303

(2022) ............................................................................6, 7

Tiffany R. Wright et al., Truth and

Reconciliation: The Ku Klux Klan Hearings of

1871 and the Genesis of Section 1983, 126 DICK.

L. REV. 685 (2022) ................................................... 10, 11

INTEREST OF AMICI CURIAE 

Amici curiae are U.S. Representatives Nathaniel

Moran and Glenn Grothman, who currently serve in the

119th Congress. As members of the federal legislature,

amici seek to protect the First Amendment rights of

their constituents and to preserve public confidence in

those rights and the institutions that uphold them.

Likewise, as elected representatives, amici have a special interest in promoting both good governance and

the free exercise of those rights by holding accountable

executive-branch officials who violate the constitutional

rights of their constituents and by encouraging the

courts to do the same.

Amici therefore submit this brief to underscore the

importance of this Court’s guidance where, as here, a circuit court’s decision departs from this Court’s teachings

and from its sister circuits’ holdings on an exceptionally

important question affecting those rights.

SUMMARY OF ARGUMENT

I. The rights to speak freely and to worship according

to one’s conscience trace back through the Enlightenment, the colonial era, and antiquity. The great thinkers

whose work prompted and informed the American Revolution, and the Framers influenced by their works, believed that the exercise of the God-given rights to speak

freely and to practice one’s faith according to the dictates

of one’s conscience were preconditions to a just society

and inalienable to a virtuous polity. The experiments in

religious pluralism and tolerance for varying political



Rule 37 statement: All counsel of record were timely notified of the

intent to file this brief. No counsel for any party authored any part

of this brief, and nobody other than amici and counsel for amici

contributed monetarily to this brief’s preparation or submission.

(1)

beliefs that gestated in the colonies gave birth to the

First Amendment’s double protection for religious

speech. What’s more, the Founders recognized that religious speech in the form of public evangelism and pamphleteering was a time-honored and uniquely American

mode of expression with a high claim to constitutional

protection. Congress and the courts must work together

to preserve and promote that claim.

II. Section 1983, enacted in part to combat the rampant suppression of speech and religious liberty rights

alike among black Americans in the Reconstruction

South, remains a bulwark against the infringement of

constitutional liberties. In that role, section 1983 altered

the relationship between the states and the federal government with respect to those rights. Qualified immunity

ensures that alteration does not unduly infringe on state

officials’ capacity to execute their lawful duties. But that

rationale gives way where an official commits a brazen or

obviously unconstitutional act—hence why this Court

has explained that officials who commit such violations

are not entitled to immunity, even when such violations

arise in novel factual circumstances. This rule has come

to be called the obviousness exception to qualified immunity.

III. The Court should grant certiorari to resolve the

circuit split, to bring the law in the Fifth Circuit into accord with this Court’s decisions, and to preserve the

proper role and purpose of qualified immunity.

A. The en banc Fifth Circuit has expressly declined

to apply the obviousness exception to claims outside of

the Eighth Amendment context. In doing so, that court

has departed from its sister circuits’ holdings and has

disregarded this Court’s repeated indication that the exception applies generally. What’s more, the Fifth Circuit’s decision is untethered to qualified immunity’s core

purpose, contravenes Congress’s intent as expressed in

section 1983, and undermines core First Amendment

rights. It is axiomatic to First Amendment rights’ inalienability that an official should not escape liability for a

violation that any reasonable official would have understood was obvious at that time.

B. This case is appropriate for the Court’s review.

These issues are of exceptional, nationwide importance.

The public exercise of First Amendment rights has long

been recognized as essential to the American experiment

and to the sustainment of a free society governed by

laws. Our collective understanding frames pluralism in

faith and in thought as far preferrable to the suppression

of beliefs and ideas. Put simply, more speech is the favored cure for “bad” speech, and more religious practice

safeguards everyone’s religious practices. Moreover, the

Framers believed and this Court has acknowledged that

free speech and free exercise are necessary to our form

of government and promote confidence in our institutions. Thus, again, Congress and the courts have a duty

to promote those rights and thus preserve American democracy.

C. Finally, this Case presents an ideal vehicle to resolve the issues presented independently of the competing petition, which raises questions about vicarious liability for municipalities. Addressing those questions will,

by comparison, have no impact on the chill Americans experience when their First Amendment liberties are

threatened by individual officers.

ARGUMENT

The Court should grant certiorari because this case

presents a direct split among the circuits on a question

of nationwide importance: the availability of qualified immunity to officers who obviously violate First Amendment rights. See S. Ct. R. 10. Those rights are of

paramount concern, and their vindication requires this

Court’s review.

I. The First Amendment Enshrines Ancient,

“Doubly

Protected”

Rights

Publicly

Evangelize.

Local officials threatened Richard Hershey with arrest because he pamphleteered in support of his faith,

Christian vegetarianism. In doing so, they violated his

“doubly protect[ed],” Kennedy v. Bremerton Sch. Dist.,

597 U.S. 507, 523 (2022), right to speak publicly in accordance with his religious exercise, Murdock v. Pennsylvania, 319 U.S. 105, 108−10 (1943). These oft-intertwined freedoms—the rights to speak and to promote

one’s religious worship through that speech—have been

central to American life since the Founding, and date

back to centuries before it. Indeed, the “freedom of

thought and speech . . . is the matrix, the indispensable

condition, of nearly every other form of freedom.” Palko

v. Connecticut, 302 U.S. 319, 326−27 (1937), overruled on

other grounds by Benton v. Maryland, 395 U.S. 784, 794

(1969). And in the “realm of religious faith,” the right to

“persuade others to [one’s] point of view” is “essential to

enlightened opinion and right conduct on the part of the

citizens of a democracy.” Cantwell v. Connecticut, 310

U.S. 296, 310 (1940).

A. The idea that the individual should be free to think

and speak publicly extends back at least as far as ancient

Athens, where citizens counted the right as “most treasured” and “a cornerstone of their democracy.” Keith

Werhan, The Classical Athenian Ancestry of American

Freedom of Speech, 2008 SUP. CT. REV. 293, 296 (cleaned

up). The Framers were familiar with the rights of citizens in antiquity. See generally John P. Murphy, Rome

at the Constitutional Convention, 51 CLASSICAL OUTLOOK 112 (1974); see also Arthur Schlesinger, America:

Experiment or Destiny?, 82 AM. HIST. REV. 505, 507−08

(1977); THE FEDERALIST NO. 34, at 206 (A. Hamilton)

(Clinton Rossiter ed., 1961). After all, “[k]nowledge of

classical authors was universal among colonists with any

degree of education.” BERNARD BAILYN, THE IDEOLOGICAL ORIGINS OF THE AMERICAN REVOLUTION 23 (enl. ed.

1992).

This notion carried forward through the Enlightenment’s thought leaders, who informed and invigorated

the Framers. Schlesinger, supra, at 507−08; Robert G.

Natelson, The Constitution and the Public Trust, 52

BUFF. L. REV. 1077, 1095−1101 (2004). Seventeenth-century authors believed that free men had the right to

“speak their minds” and that a just government would

recognize that man possessed the “liberty to speak forth

his mind and judgment.” CLARK W. GILPEN, THE MILLENARIAN PIETY OF ROGER WILLIAMS 55 (1979). As Immanuel Kant believed, freedom to speak and write ensured two objectives of a free society: the search for

greater and more perfect justice, and the enlightenment

of the populace. Kristi Sweet, Kant on Free Speech: Criticism, Enlightenment, and the Exercise of Judgment in

the Public Sphere, 29 KANTIAN REV. 61, 61−62 (2024).

Even Sir William Blackstone said “[e]very freeman

has an undoubted right to lay what sentiments he pleases

before the public.” 4 WILLIAM BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND, *152. And George

Mason’s Virginia Declaration of Rights would later hold

that “the freedom of the press is one of the great bulwarks of liberty, and can never be restrained but by despotic governments.” Va. Declaration of Rights art. XII,

available

https://avalon.law.yale.edu/18th_century/virginia.asp.

B. Similarly, the freedoms to worship, to engage in

religious expression, and to proselytize unaccosted were

foundational ideas and instigating principles of the

American experiment. After all, with respect to religious

pluralism, “[t]he English legacy was not a happy one.”

Michael W. McConnell, The Origins and Historical Understanding of Free Exercise of Religion, 103 HARV. L.

REV. 1409, 1421 (1990). Thus, according to one commentator, “different approaches to church-state relations developed” in the American colonies. Id. at 1422. One ultimately prevailed.

Rhode Island, Delaware, and Pennsylvania would incubate the “free exercise of religion” as “an articulated

legal principle.” Id. at 1424–25. Rhode Island’s royal

charter, for example, recognized that some Rhode Islanders could not “in theire private opinions, conform[]

to the publique exercise of religion, according to . . . the

Church of England.” Charter of Rhode Island and Providence Plantations of July 15, 1663, available at

https://avalon.law.yale.edu/17th_century/ri04.asp.

The Founders—despite their deep differences and

varying schools of thought—“adopted and advocated”

“common principles of religious freedom” with roots in

the Rhode Island and Pennsylvanian experiments. John

Witte, Jr., Back to the Sources? What’s Clear and Not So

Clear About the Original Intent of the First Amendment, 47 BYU L. Rev. 1303, 1308 (2022). Those principles

included securing each individual’s “liberty of conscience,” the “free exercise of religion,” as well as the

twin guarantees of “religious pluralism” and “religious

equality.” Id.

C. As a result of these histories, the Constitution and

this Court’s precedents “doubly protect” religious

speech. The Framers believed that the Bill of Rights

would protect the new Nation from unjust popular majorities and would “substitute for several features of government” that were not included in the original text of

the Constitution. Stuart Leibiger, James Madison and

Amendments

the

Constitution,

1787-1789:

“Parchment Barriers,” 59 J.S. HIST. 441, 442 (1993). The

founders believed that free expression and free exercise

were core to their shared project, so much that they

hardly debated those principles when drafting the First

Amendment. 1 ANNALS OF CONG. 757−78 (Aug. 15, 1789)

(Joseph Gales ed., 1834); Witte, supra, at 1308;

McConnell, supra, at 1481.

Thus, the First Amendment provides that “Congress

shall make no law . . . prohibiting the free exercise [of religion] or abridging the freedom of speech.” U.S. Const.

amend. I. The Framers included that, and the other early

Amendments, “in order to prevent misconstruction or

abuse of [the Constitution’s] powers” and to “extend[]

the ground of public confidence in the Government.”

Resolution of the First Congress Submitting Twelve

Amendments to the Constitution, available at https://avalon.law.yale.edu/18th_century/resolu02.asp. Madison

expected that the nation’s “independent tribunals of justice” would be “an impenetrable bulwark against” violations of those rights. 1 ANNALS OF CONG. 457 (June 8,

1789) (Joseph Gales ed., 1834).

The Court has long described both political and religious speech as “essential to enlightened opinion and

right conduct.” Cantwell, 310 U.S. at 310. The Court continues to recognize that the Free Exercise and Free

Speech Clauses “work in tandem” such that “the First

Amendment doubly protects religious speech.” Kennedy, 597 U.S. at 523.

That double protection is perhaps at its strongest

when applied to public evangelizing. The Founders were

no strangers to religious pamphleteering: more than 400

pamphlets were widely distributed in the colonies before

1776, including writings on political theory and history,

as well as sermons. BAILYN, supra, at ix. That tradition

of explaining “the [authors’] assumptions, beliefs, and

ideas” “endowed the Revolution with its peculiar force.”

Id. at x−xi. And scholars likewise connect figures like

George Whitefield and the Great Awakening directly to

the American Revolution. See, e.g., FRANK LAMBERT,

“PEDLAR IN DIVINITY”: GEORGE WHITEFIELD AND THE

TRANSATLANTIC REVIVALS 10 (1994).

Evangelism through print made founding-era Calvinist New England “perhaps the most literate place on

earth,” and those publishers were leading innovators of

the American noncommercial sector and the very concept of mass media. DAVID PAUL NORD, FAITH IN READING: RELIGIOUS PUBLISHING AND THE BIRTH OF MASS

MEDIA IN AMERICA 7, 14 (2004). This Court has long recognized this tradition.

As this Court has held, religious pamphleteering is

“an age-old form of missionary evangelism—as old as the

history of the printing presses.” Murdock, 319 U.S. at

108. It is no surprise, then, that the Court has held unconstitutional laws that restrict “door-to-door canvassing and pamphleteering.” Watchtower Bible & Tract

Soc’y of N.Y., Inc. v. Village of Straton, 536 U.S. 150, 160

& n.10 (2002) (collecting cases). Those protections are all

the stronger when the pamphleteering enjoys the special

status the First Amendment guarantees to religious exercise.

D. Congress and this Court work in tandem to promote civil liberties, each occupying a special role to that

end. Congress has engaged in legislative efforts to further protections for religious liberties. These efforts include protections under the Equal Access Act, 20 U.S.C.

§ 4071, Title VII of the Civil Rights Act, 42 U.S.C.

§ 2000e-2, and the Americans with Disabilities Act, 42

U.S.C. § 12113(d). See generally Burwell v. Hobby

Lobby Stores, Inc., 573 U.S. 682 (2014). Congress also

enacted the Religious Freedom Restoration Act of 1993

as a direct response to Employment Division v. Smith,

494 U.S. 872 (1990), in which the Court held that the

Free Exercise Clause is not offended by enforcement of

neutral, generally applicable laws that incidentally burden religious conduct. In fact, Congress “provided even

broader protection for religious liberty than was available” under the pre-Smith case law. Burwell, 573 U.S. at

695 n.3.

Similarly, this Court has regularly taken up cases to

clarify and enforce religious liberties. See, e.g., Ramirez

v. Collier, 595 U.S. 411 (2022); Little Sisters of the Poor

Saints Peter & Paul Home v. Pennsylvania, 591 U.S.

657 (2020); Holt v. Hobbs, 574 U.S. 352 (2015); Burwell,

573 U.S. 682; Cutter v. Wilkinson, 544 U.S. 709 (2005).

Indeed, one of the Court’s most recent cases, Kennedy,

addressed the kind of public religious exercise at issue

here. 597 U.S. at 514–15. The Court emphasized that the

Free Exercise Clause “does perhaps its most important

work by protecting the ability of those who hold religious

beliefs of all kinds to live out their faiths in daily life

through the performance of (or abstention from) physical acts.” Id. at 524 (cleaned up). The Court should take

up this case to reemphasize that the First Amendment

strongly protects the right to practice one’s religion in

public through physical acts and expression like evangelical pamphleteering.

Thus, both legislative and judicial action are essential

to preserve First Amendment rights and promote civic

engagement through religious expression. Another way

Congress has succeeded in promoting civil liberties is, of

course, by enacting 28 U.S.C. section 1983, which provides a private right of action to recover damages from

state actors who violate constitutional rights. And the

Court has helped enforce that provision and properly restrain its application by developing and applying the

qualified immunity doctrine.

II. The Obviousness Exception Is Consistent with

Qualified Immunity’s Purposes.

Congress, through section 1983, and the Court,

through the qualified immunity doctrine, have crafted a

carefully balanced regime of accountability and protection for executive and state actors.

A. Congress enacted section 1983, among other reasons, to protect the civil liberties of black southerners

during the Reconstruction era. Monroe v. Pape, 365 U.S.

167, 172-78 (1961); Tiffany R. Wright et al., Truth and

Reconciliation: The Ku Klux Klan Hearings of 1871 and

the Genesis of Section 1983, 126 DICK. L. REV. 685, 686,

703 (2022). The “brutality of Southern law enforcement”

and state institutions’ purposeful blindness to that brutality were the impetus for a law that opened federal

courts as the primary guarantor of the Fourteenth

Amendment’s promises. Wright, supra, at 703; see also

Theodore Eisenberg, Section 1983: Doctrinal Foundations and an Empirical Study, 67 CORNELL L. REV. 482,

484−86 (1982).

Protecting black southerners’ free exercise of

religion—and in particular their right to practice their

religion without state harassment—was a core concern

in enacting section 1983. The Congressional hearings

surrounding section 1983 revealed that black churches

were under constant attack. Wright, supra, at 699−700,

708. These attacks occurred in part because, like the

religious movements and organizations that wrote

about and promoted revolutionary ideas a century

before, black churches were central to black community

and the promotion of civil rights in the Reconstruction

era. See generally Nicole Turner, Beyond Speeches

and Leaders: The Role of Black Churches in the

Reconstruction of the United States, J. OF THE

CIVIL WAR ERA: MUSTER (Aug. 14, 2020),

https://www.journalofthecivilwarera.org/2020/08/beyondspeeches-and-leaders-the-role-of-black-churches-in-thereconstruction-of-the-united-states/. Thus, those who

would see black southerners politically disenfranchised

targeted churches as “embodiments of [B]lack

autonomy.” Wright, supra, at 701 (alteration in original)

(citation omitted).

Congress’s intent to protect black southerners who

organized around their churches and through their religious expressions aligns with and promotes the Constitution’s double protection for religious speech.

B. Though the Reconstruction-era suppression of

black religious exercise by southern law enforcement has

ended, section 1983 remains an important bulwark

against the deprivation of religious and speech rights. In

that role, section 1983 “alter[ed] the relationship between the States and the Nation with respect to federally

created rights.” Mitchum v. Foster, 407 U.S. 225, 242

(1972). Qualified immunity tempers that alteration by

balancing “the need to hold public officials accountable

when they exercise power irresponsibly and the need to

shield officials from harassment, distraction, and liability

when they perform their duties reasonably.” Pearson v.

Callahan, 555 U.S. 223, 231 (2009).

The core purpose of qualified immunity is to ensure

defendants have some notice that certain conduct may

subject them to punishment. The Court has long said

that section 1983 “should be read against the background

of tort liability that makes a man responsible for the natural consequences of his actions.” Pierson v. Ray, 386

U.S. 547, 556 (1967) (quoting Monroe, 365 U.S. at 187).

Thus, officers are “not charged with predicting the future course of constitutional law.” Id. at 557. Qualified

immunity balances officials’ exercise of discretion and

“encourage[s] the vigorous exercise of official authority”

by preventing “insubstantial” and “frivolous” lawsuits.”

Harlow v. Fitzgerald, 457 U.S. 800, 807–08 (1982).

And qualified immunity also, at least in part, promotes the ends section 1983 itself pursues; “the danger

of being sued might dampen the ardor of all but the most

irresponsible public officials in the unflinching discharge

of their duties.” Id. at 814 (cleaned up). Interpreting section 1983’s companion criminal statute, 18 U.S.C. § 242,

the Court explained that due process requires that a

criminal defendant have “fair warning” such that he can

“reasonably understand [his conduct] to be proscribed.”

United States v. Lanier, 520 U.S. 259, 265 (1997) (citations omitted). When “the express terms of the Constitution or . . . decisions interpreting them” make a right

“specific,” a defendant may be held criminally liable under section 242 for violating that right. Id. at 267.

Thus, the Court specifically disavowed the notion

that a precedent involving “fundamentally similar” facts

is required in every case to show a clearly established

right. Id. at 270. And it has explicitly extended that holding to qualified immunity in the section 1983 context.

Hope v. Pelzer, 536 U.S. 730 740–41 (2002). Therefore, it

is not necessary that “the very action in question has previously been held unlawful,” but rather that “in light of

pre-existing law the unlawfulness [was] apparent” and

“sufficiently clear [to] a reasonable officer.” Id. at 739.

Against this backdrop, the Court has explained that

“general statements of the law are not inherently incapable of giving fair and clear warning.” Id. at 741 (quoting Lanier, 520 U.S. at 271). In some cases, “a general

constitutional rule already identified in the decisional law

may apply with obvious clarity to the specific conduct in

question.” Id. (quoting Lanier, 520 U.S. at 271). Thus,

“officials can still be on notice that their conduct violates

established law even in novel factual circumstances.” Id.

C. The Court has reinforced this “obviousness exception” and courts have applied it widely. As the Court’s

discussion in Hope and Lanier make clear, it is not inherently limited to the Eighth Amendment context. Indeed, Lanier was, itself, a Fourteenth Amendment dueprocess case. 520 U.S. at 261−62. In the years after Hope,

the Court has strongly indicated that Hope’s reasoning

was equally applicable to the Fourth Amendment,

though those cases did not find “obvious” violations. See,

e.g., Brosseau v. Haugen, 543 U.S. 194, 199 (2004); District of Columbia v. Wesby, 583 U.S. 48, 64 (2018).

What’s more, the Court has recently reaffirmed

Hope. See generally Taylor v. Riojas, 592 U.S. 7 (2020)

(per curiam). There, a Texas prisoner, was confined “in a

pair of shockingly unsanitary cells” for six days. Id. The

Court quoted Hope’s holding that a general rule “may

apply with obvious clarity to the specific conduct in question” and said that “the obvious cruelty inherent” in “degrading and dangerous situations provides officers with

some notice.” Id. at 9 (cleaned up). “[A]ny reasonable officer should have realized that Taylor’s conditions of confinement offended the Constitution.” Id. The Court cited

no Eighth Amendment cases other than Hope (a factually dissimilar case) in concluding the violation was obvious.

Since Hope, the Court has not questioned its reasoning, cabined it to any one context, or held it does not apply in any context. Indeed, the Court has reaffirmed

Hope’s reasoning time and again.

III. This Case Is an Ideal Vehicle to Resolve a Circuit

Split on Issues of Exceptional Importance.

A. Following this Court’s direction, the Courts of Appeals—aside from the Fifth Circuit—have uniformly recognized that the obviousness exception applies with

equal force to claims premised on the violation of First

Amendment rights. See, e.g., Berge v. Sch. Comm. of

Gloucester, 107 F.4th 33, 39 (1st Cir. 2024); Nagle v.

Marron, 663 F.3d 100, 115−16 (2d Cir. 2011); McGreevy

v. Stroup, 413 F.3d 359, 366 (3d Cir. 2005); Booker v. S.C.

Dep’t of Corr., 855 F.3d 533, 543 (4th Cir. 2017); MacIntosh v. Clous, 69 F.4th 309, 319 (6th Cir. 2023); McGreal

v. Ostrov, 368 F.3d 657, 683 (7th Cir. 2004); Mayfield v.

Mo. House of Representatives, 122 F.4th 1046, 1057 (8th

Cir. 2024); A.D. v. Cal. Highway Patrol, 712 F.3d 446,

454−55 (9th Cir. 2013); Janny v. Gamez, 8 F.4th 883, 913,

917 (10th Cir. 2021); Akins v. Fulton County, 420 F.3d

1293, 1305−08 (11th Cir. 2005); Moore v. Hartman, 388

F.3d 871, 877, 886 (D.C. Cir. 2004), rev’d and remanded

on other grounds, 547 U.S. 250 (2006).

Notwithstanding its sister circuits’ unanimous approach, the Fifth Circuit has stood alone in its express

refusal to extend the obviousness exception to First

Amendment rights. See Villarreal v. City of Laredo, 94

F.4th 374, 394–95 (5th Cir. 2024) (Villarreal I), cert.

granted, judgment vacated sub nom. Villarreal v. Alaniz, 145 S. Ct. 368 (2024); Villarreal v. City of Laredo,

134 F.4th 273, 276 (5th Cir. 2025) (Villarreal II) (effectively reinstating much of Villarreal I), cert. denied sub

nom. Villarreal v. Alaniz, 146 S. Ct. 939 (2026).

In Villarreal I, a nine-to-seven majority of the en

banc Fifth Circuit expressly refused to apply Hope or its

reasoning to the First Amendment context. 94 F.4th at

395. That majority explained that the plaintiff “relie[d]

on Eighth Amendment cases where [this Court] . . . declined to scrutinize the cases fact-specifically.” Id. (citing

Hope, 536 U.S. at 730, 738−39, and Taylor, 592 U.S. at 7).

The Fifth Circuit read Hope to “express a general, but

decidedly narrow, obviousness exception to the requirement that ‘clearly established law’ be founded on materially identical facts.” Id.

Among other things, Villarreal I relied on this

Court’s holding in Sause v. Bauer, 585 U.S. 957, 959−60

(2018). But Sause does not bear on Hope’s applicability.

In Sause, the petitioner claimed that officers violated her

free-exercise rights. 585 U.S. at 958. This Court explained that “there are clearly circumstances in which a

police officer may lawfully prevent a person from praying at a particular time and place.” Id. at 959. Important

questions regarding the propriety of the officers’ actions

under the Fourth Amendment had to be answered in order to “analyze [the] petitioner’s free exercise claim.” Id.

at 960. On remand, the Tenth Circuit vacated the district

court’s order of dismissal. Sause v. Bauer, 733 F. App’x

456, 457 (10th Cir. 2018). This Court said nothing of the

contours of the clearly established prong of the qualified

immunity doctrine; certainly nothing that questioned

Hope and nothing that required a “close[] analy[sis]” different from the one Hope, Lanier, and Taylor still require. Contra Villarreal I, 94 F.4th at 395.

Another point, as well, bears on Villarreal I’s reliance

on Sause. When this Court has not expressly overruled

a previous case, the lower courts must seek to harmonize

it with this Court’s later pronouncements. See Agostini

v. Felton, 521 U.S. 203, 237 (1997). The Fifth Circuit

acknowledges as much. See, e.g., Cochran v. U.S. Sec. &

Exch. Comm’n, 20 F.4th 194, 206 n.11 (5th Cir.

2021), aff’d and remanded sub nom. Axon Enter., Inc. v.

Fed. Trade Comm’n, 598 U.S. 175 (2023). Therefore, Villarreal I should have harmonized Sause. That would

have been a simple task in light of Taylor’s unambiguity

and Sause’s plain inapplicability.

Villarreal I’s rejection of Hope is also untethered to

qualified immunity’s core purpose: to put reasonable officers on notice that certain conduct is proscribed. And it

undermines both the Constitution’s double protection for

religious speech and Congress’s intention for section

1983, both of which demand accountability for public officials.

It matters naught under which amendment the right

in question arises. As this Court has noted, even in the

Fourth Amendment context—in which “specificity of the

controlling rule is especially important,” Wesby, 583 U.S.

at 64 (cleaned up)—an obvious violation is still obvious,

id. (“Of course, there can be the rare ‘obvious case,’

where the unlawfulness of the officer’s conduct is sufficiently clear even though existing precedent does not address similar circumstances.” (citing Brosseau, 543 U.S.

at 199, which cited, in turn, Hope, 536 U.S. at 738)). A

violation arising under the First Amendment, like one

arising under the Eighth or even the Fourth, might be so

obvious as to not require any factually analogous precedent. See Browder v. City of Albuquerque, 787 F.3d 1076,

1082 (10th Cir. 2015) (Gorsuch, J.) (“[S]ome things are so

obviously unlawful that they don’t require detailed explanation . . . .”).

Thus, letting officers escape liability for First

Amendment violations simply because no other officer

has dared violate the constitution in quite the same egregious way undermines accountability and Congress’s intent in enacting section 1983 as protecting speech and religious rights.

Villarreal I further denigrates the double protection

for religious speech by insulating the most egregious violations of that protection. As then-Judge Gorsuch said,

“it would be remarkable if the most obviously unconstitutional conduct should be the most immune from liability only because it is so flagrantly unlawful that few dare

its attempt.” Id. at 1082–83. Review is needed to avoid

this result in the Fifth Circuit.

B. Public participation in religion and freedom from

state interference in doing so are essential. This Court’s

precedents have insisted upon looking to the “specific

practice[s]” of history. Town of Greece v. Galloway, 572

U.S. 565, 577 (2014). The “idea of public religion that participates in America’s public life and influences the direction our nation takes, even politically, has been the model

for most of our nation’s history.” Mark W. Cordes, Religion As Speech: The Growing Role of Free Speech Jurisprudence in Protecting Religious Liberty, 38 SW. L.

REV. 235, 276 (2008). Popular invocation of religion in the

civil sphere had a great impact on the founding generation and the Revolution, which framed resistance to Britain as a religious and moral imperative. JAMES H. HUTSON, RELIGION AND THE FOUNDING OF THE AMERICAN

REPUBLIC 42 (1998). Thomas Paine, for example, famously urged his fellow colonists to reject the British

Crown as illegitimate and contrary to “the authority of

Scripture.” THOMAS PAINE, COMMON SENSE (1776), reprinted in COMMON SENSE, RIGHTS OF MAN, AND OTHER

ESSENTIAL WRITINGS OF THOMAS PAINE 12 (2003).

The role of religion in public life was at the forefront

as the new Republic faced threats of division. In Federalist Number 10, Madison listed religious division as one

source of political factions that could foment tyranny. He

famously argued that the problem of factions could be

addressed either by removing their causes or by controlling their effects—but that the former was a cure worse

than the disease. See THE FEDERALIST NO. 10, at 77–78

(J. Madison) (Clinton Rossiter ed., 1961). Rather, widespread pluralism provided the answer. Id.

John Adams, though undoubtedly pluralist, was a

noted proponent of public worship and of the importance

of religion in society and public life. See John Witte, Jr.,

“A Most Mild and Equitable Establishment of Religion”: John Adams and the Massachusetts Experiment,

41 J. OF CHURCH & STATE 213, 217–19 (1999); “From

John Adams to Massachusetts Militia, 11 October 1798,”

Founders Online, National Archives, available at

https://founders.archives.gov/documents/Adams/99-0202-3102.

John Jay said that it was “the duty of all wise, free,

and virtuous governments to countenance and encourage

virtue and religion.” Speech of Governor John Jay (Nov.

4, 1800), in THE SPEECHES OF THE DIFFERENT GOVERNORS TO THE LEGISLATURE OF THE STATE OF NEW

YORK 66 (J. B. Van Steenbergh, ed. 1825). Abraham

Baldwin, signer of the Constitution and a Framer of the

Bill of Rights, wrote that a “free government . . . can only

be happy when the public principles and opinions are

properly directed . . . by religion and education.”

CHARLES C. JONES, JR., BIOGRAPHICAL SKETCHES OF

THE DELEGATES FROM GEORGIA TO THE CONTINENTAL

CONGRESS 6-7 (1891). Even Thomas Jefferson held the

“liberty to worship our Creator in the way we think most

agreeable to His will [is] a liberty deemed in other countries incompatible with good government and yet proved

by our experience to be its best support.” “From Thomas

Jefferson to John Thomas, 11 October 1798,” Founders

Online, National Archives, available at https://founders.archives.gov/documents/Jefferson/99-01-02-6807.

Correcting the Fifth Circuit’s errors will promote a

society that is free to debate and further refine the ideals

of American democracy. As Alexis de Tocqueville remarked upon his 1831 visit, “Religion in America takes

no direct part in the government of society, but it must

be regarded as the foremost of the political institutions . . . I am certain that they hold it to be indispensable

to the maintenance of republican institutions.” ALEXIS

DE TOCQUEVILLE, DEMOCRACY IN AMERICA 286 (Henrey

Reeve trans., Digireads.com Publishing 2016) (1831).

The Framers also put forward the First Amendment

and the whole Bill of Rights expressly to “extend[] the

ground of public confidence in the Government,” Resolution of the First Congress Submitting Twelve

Amendments to the Constitution, available at https://avalon.law.yale.edu/18th_century/resolu02.asp.

Ongoing shared confidence in civil liberties and the

institutions that protect them are necessary to our form

of government. See James L. Gibson, Losing Legitimacy: The Challenges of the Dobbs Ruling to Conventional Legitimacy Theory, 68 AM. J. OF POL. SCI. 1041,

1042 (2024). “Respect for religious expressions is indispensable to life in a free and diverse Republic.” Kennedy,

597 U.S. at 543. Indeed, the Framers were so “distrust[ful] of government attempts to regulate religion”

that they ensured “the First Amendment doubly protects religious speech.” Id. at 523–24. “Our tradition assumes that adult citizens, firm in their own beliefs, can

tolerate and perhaps appreciate” the religious expressions of others. Town of Greece, 572 U.S. at 584.

This Court’s precedents ensure that speech and religious expression will not be stifled because officials disfavor the public voicing of religious beliefs. When individuals lack clarity on where they may speak religious

messages and what they can say, that uncertainty discourages them from speaking and subjects people of

faith to arbitrary enforcement. See Corp. of Presiding

Bishop of Church of Jesus Christ of Latter-day Saints v.

Amos, 483 U.S. 327, 336 (1987). This Court guards

against “arbitrary discretion . . . vested in some governmental authority,” which “has the potential for becoming

a means of suppressing a particular point of view.” Heffron v. Int’l Soc’y for Krishna Consciousness, Inc., 452

U.S. 640, 649 (1981).

The legislative branch has its own acute interest in

preserving public confidence in institutions and in promoting good citizenship and civic responsibility. Madison, for example, argued that the answer to political factions (including religious division) was found not in removing the cause but in tempering effects through a

representative form of government. See THE FEDERALIST NO. 10, supra, at 80–84. Congress forms the bulwark

of representative government, and “the American experiment itself has proved to be one that has permitted religion’s participation in America’s public life without the

threat of political instability and even war.” Cordes, supra, at 277. The threat of religious division “was a very

real danger in the minds of the Founders, in particular

because the religious wars that plagued Europe in the

sixteenth and seventeenth-centuries were still a relatively recent event, and one that demonstrated the painful consequences that religious conflict is capable of producing.” Id.

American federalism tempers this threat. As Madison explained, protections for civil liberties and religion

would “depend on the number of interests and sects,” in

turn dependent on the “extent of country and number of

people comprehended under the same government.”

THE FEDERALIST NO. 51, at 324 (J. Madison) (Clinton

Rossiter ed., 1961). Differences “would be addressed

through the structure of our representative government.” Mark W. Cordes, Politics, Religion, and the First

Amendment, 50 DEPAUL L. REV. 111, 141 (2000). And

“the variety of sects dispersed over the entire face of”

the Nation would “secure the national councils against

any danger from” any one religious sect. THE FEDERALIST NO. 10, supra, at 84.

For this check to function, however, government officials must obey the law. Immunity from suit for obvious

constitutional violations creates the appearance that officials are above the law. That perception erodes confidence in public institutions, including the courts. And the

Madisonian view that factions would be tempered though

our constitutional system is undermined. See id. at

77−84.

The religious speech and evangelism occurring in this

case typify this mechanism in practice. “Religion’s involvement in American politics has remained strong ever

since” the early days of the Nation, including many “high

visibility social movements, such as abolition, temperance, and civil rights, all of which had strong religious

dimensions.” Cordes, supra, at 141. Yet a rule that undermines a speaker’s confidence in those sworn to protect constitutional rights undermines the civil liberties of

all Americans. A rule that “doubly protects” religion only

at the whims of unchecked officials protects nothing at

all. Kennedy, 597 U.S. at 523; Heffron, 452 U.S. at 649.

C. This case presents an ideal vehicle to answer this

important question on the scope of the qualified immunity doctrine. There is a clean circuit split and the qualified immunity question presented is separate and independent from the Monell issue the Fifth Circuit allowed

to proceed against the City of Bossier City. See Petition

for Writ of Certiorari, City of Bossier City v. Hershey,

No. 25-1323 (May 13, 2026) (“City’s Pet.”).

Under Monell, liability attaches only when “execution of a government’s policy or custom, whether made

by its lawmakers or by those whose edicts or acts may

fairly be said to represent official policy, inflicts the injury.” Monell v. Dep’t of Social Servs., 436 U.S. 658, 694

(1978). The Monell issue here concerns the narrow scenario in which officers receive no training whatsoever

concerning First Amendment protections. See City’s

Pet. at 1–2. That issue touches on whether the governmental employer may be sued at all consistent with Section 1983. See Monell, 436 U.S. at 690–91. It has no bearing on whether individual officers will continue to claim

immunity for obvious constitutional violations in the absence of an identical prior fact pattern. The Court need

not grant the City’s petition to reach the question presented here.

CONCLUSION

The Court should grant the Petition.

Respectfully submitted.

JULY 2026