Todd Butler Compared Street Preacher In Supreme Court Case To “Domestic Terrorism”

I continue to dig through the record of Todd Butler, the new nominee to the Fifth Circuit. I wonder if anyone else did?

Butler’s greatest claim to fame is arguing Olivier v. City of Brandon before the Supreme Court. The questions presented were fairly technical:

1. Whether, as the Fifth Circuit holds in conflict with the Ninth and Tenth Circuits, this Court’s decision in Heck v. Humphrey bars § 1983 claims seeking purely prospective relief where the plaintiff has been punished before under the law challenged as unconstitutional.

2. Whether, as the Fifth Circuit and at least four others hold in conflict with five other circuits, Heck v. Humphrey bars § 1983 claims by plaintiffs even where they never had access to federal habeas relief.

The actual facts were not important to the question presented. These were pure questions of law. Yet Butler’s briefs took gratuitous shots at Gabe Olivier, a street preacher who was arrested by the City of Brandon.

Butler’s brief in opposition to certiorari compared street preaching to “domestic terrorism.”

Petitioner presents himself as “a Christian” who wishes to peacefully “share[] his faith on public streets[.]” Pet.6. He likewise did so in the district court, claiming he does not hurl insults and speaks only in a conversational tone to people walking by. ROA.21. Video evidence proves otherwise. On multiple occasions, Petitioner has yelled insults at event attendees, including “whore,” “Jezebel,” “fornicator,” “drunkards,” and “sissy.” ROA.295-301. The conduct caused disturbances that would have resulted in violence had law enforcement not intervened. ROA.293-301.

Group protests are his normal course of action, with individuals in his group having been found guilty of simple assault for harassing citizens and one court even describing their actions as “domestic terrorism.” ROA.398-424. The group has targeted, followed, hurled insults at, spit on, harassed individuals, and, at one point, “began closing in” on a couple.

This passage is beyond insulting. He put “Christian” in scare quotes, as if to doubt Olivier’s faith. And the “domestic terrorism” charge is extremely divisive. Again, none of these points were necessary in a boring case about Heck v. Humphreys. But Butler felt compelled to attack the plaintiff.

Olivier’s reply brief, filed by Allyson Ho at Gibson Dunn and First Liberty, fired back:

The city begins (at 7-8) by disparaging Olivier’s evangelism and states that while he “presents himself as ‘a Christian'” the “evidence proves otherwise.” But “no official, high or petty, can prescribe 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 over-hyped rhetoric, Olivier “identifies sins he believes are relevant for the community at large” to share the good news that Jesus Christ saves people from their sins.

Olivier is exactly right. The government cannot define who is religious and who is not. If you believe in the Gospel, you have an obligation to tell others your views. What does Butler think preaching do?

One might have thought after the cert grant, Butler would step back from this cliff. After all, he needs votes from Justices Alito and Thomas. But he does not.

The Respondent brief again questions whether Olivier was evangelizing, and repeats the”domestic terrorism” claim:

After it opened, Petitioner traveled to the Amphitheater with a group to, in his words, evangelize. J.A.5. The group’s evangelism included using a loudspeaker to call patrons “whores,” “Jezebels,” “grody,” “nasty,” “sissies,” and other derogatory names.1 Pet.App.21a-23a. They held large signs, some of which depicted aborted fetuses. Pet.App.29a.

FN1: Courts have equated the group’s more aggressive conduct, including spitting on people, to “domestic terrorism.” C.A.ROA.414.

The Petitioner’s reply brief shot back sharply:

The city disparages Olivier’s evangelism with inaccurate, unsupported accusations, even equating his peaceful expression with “domestic terrorism.” Resp. Br. 3 n.1 (citing C.A. ROA 414). Olivier vigorously disputes this characterization. The prosecution cited by the city involved the conduct of other people in a different location. That prosecution doesn’t allege that Olivier participated in the purportedly “aggressive conduct,” and there’s no support for the city’s baseless implication that Olivier “spit[ ] on people.” Ibid.; see J.A. 26-27.

Many of President Trump’s nominees have done favorable things for religious liberty. But here, Butler actively attacks a Christian, questions his evangelism, and compares him to a domestic terrorist.

Remember when during the Biden Administration, parents at school board meetings as “domestic terrorists”? Senator Hawley ripped Attorney General Garland about this scandal.

Much more to come.