The Fifth Circuit just handed down a ruling that should make every American’s blood run cold, regardless of where you stand on religion or politics. Police officers in Texas violated Richard Hershey’s constitutional rights when they silenced his street preaching, and now those same officers are hiding behind qualified immunity like it’s some kind of get-out-of-jail-free card for trampling the First Amendment.
Rep. Nathaniel Moran and Rep. Glenn Grothman aren’t having it. They’re leading an amicus brief urging the Supreme Court to take up Hershey’s case, and honestly, it’s about time someone pushed back on this nonsense. “Mr. Hershey’s constitutional rights were treated as optional the moment officers decided to ignore them,” Moran told reporters. He’s not wrong. When did the Bill of Rights become a suggestion rather than the supreme law of the land?
Here’s what grinds my gears about this whole situation. We’ve got a circuit split among federal appeals courts over whether government officials can claim qualified immunity when they commit what any reasonable person would call an obvious First Amendment violation. That means your rights depend on your zip code. Preach the Gospel in one district and you’re protected. Cross an invisible line into another jurisdiction and suddenly the same speech gets you arrested while the officers face zero consequences.
The Founders didn’t hedge their bets when they wrote “Congress shall make no law.” They didn’t add asterisks or footnotes saying “except when it’s inconvenient for local police.” Religious speech was the whole point. It’s why the Pilgrims got on those boats in the first place. It’s why the First Amendment comes first, not fifth or tenth.
Qualified immunity made sense once upon a time. The idea was simple enough: don’t punish cops for split-second decisions in genuinely unclear situations. But we’ve twisted that reasonable protection into an impenetrable shield that covers even the most blatant constitutional violations. When an officer silences a street preacher exercising the most fundamental right in American democracy, there’s nothing unclear about it. That’s not a gray area. That’s black and white.
The Supreme Court recently ruled 8-1 against Colorado’s conversion therapy ban, recognizing it as a First Amendment violation. That decision showed the justices still understand what free speech means. Now they need to finish the job by clarifying that government officials can’t violate obvious constitutional rights and then waltz away consequence-free.
You know what bothers me most? This case represents something bigger than one preacher in Texas. It’s about whether we still believe in ordered liberty or whether we’ve decided that government power trumps individual rights whenever enforcement becomes slightly uncomfortable. Every time we let officials off the hook for clear violations, we tell citizens their rights matter less than bureaucratic convenience.
The circuit split needs resolution. The Supreme Court should take this case and make crystal clear that qualified immunity doesn’t cover obvious First Amendment violations. Our rights aren’t negotiable. They’re not dependent on whether a particular appeals court feels generous that day. They’re inherent, God-given, and constitutionally protected.
If the high court passes on this opportunity, they’re essentially saying your freedom of speech and religious exercise can be violated without consequence as long as the violator wears a badge. That’s not the America the Founders envisioned. That’s not the America worth defending.
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