By a 10-7 vote, the U.S. 5th Circuit Court of Appeals denied a petition for an en banc rehearing in Hershey v. City of Bossier City, (5th Cir., Dec. 18, 2025). In the case, a 3-judge panel in a splintered decision reversed a Louisiana federal district court's dismissal of a suit against the city by plaintiff who was passing out booklets for the Christian Vegetarian Association outside a concert arena in which a Christian rock concert was taking place. (See prior posting.) Judge Ho filed an opinion concurring in the denial of an en banc rehearing, saying in part:
... As I noted at the outset, the First Amendment violation presented here should be obvious. Of course people have the right to spread the gospel in public spaces. Yet our colleagues deny that this case presents a legitimate religious liberty issue. Richard Hershey claims the right to share religious materials in public spaces. But our colleagues deny that his claim has anything to do with religious liberty....
Judge Oldham, joined by 6 other judges, filed an opinion dissenting from the denial of an en banc rehearing, saying in part:
Richard Hershey is a “vegetarian advocate whose ethical beliefs compel him to share his message with others.”... When security officers told Hershey to stop distributing his leaflets, he sued for “deprivation of his rights of speech.”... Hershey does not allege that the officers even knew of the content of his vegetarianism leaflets—let alone targeted him for his vegetarian views.... Nor does Hershey allege anything about his religion. You’ll look in vain for any mention in Hershey’s complaint about faith, religiosity, the First Amendment’s Religion Clauses, or evangelism....
But you would not know that from the opinion concurring in the denial of rehearing en banc. In that opinion, this case about vegetarian ethics somehow transforms into a battle over street preaching, the Great Commission, hatred of Christians, and religious persecution dating back “thousands of years.”...This quixotic effort does nothing to justify the panel’s badly splintered, three-judge-four-opinion approach to this case. And while it tilts at windmills that appear nowhere in this case, it does nothing to justify our court’s refusal to reconsider the matter en banc....
