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Supreme Court Holds Secret Service Not Liable for Alleged First Amendment Violations in 2004

Supreme Court Holds Secret Service Not Liable for Alleged First Amendment Violations in 2004

Secret Service agents who moved protestors hundreds of feet back from President George W. Bush’s motorcade in 2004 cannot be personally sued for alleged First Amendment violations, the Supreme Court unanimously held.

Bush stopped in Florida during a campaign trip on Oct. 14, 2004, to get dinner at a restaurant. Two groups lined the route, one supporting Bush and the other anti-Bush. When the former president stopped, the supporters’ view of him was obstructed by a large building. But the anti-Bush crowd could clearly see the president at close range. So the Secret Service had local law enforcement move the crowd of up to 300 protestors a couple hundred feet back before the president exited his armored car and dined on the open patio of the restaurant.

Some protestors sued, noting that they had been moved back a greater distance than Bush’s supporters, and arguing the Secret Service was discriminating against the anti-Bush crowd’s viewpoint of the president’s policies, in violation of First Amendment free-speech rights. The U.S. Court of Appeals for the Ninth Circuit ruled against the Secret Service, holding the agents financially responsible.

In Wood v. Moss, the Supreme Court reversed the Ninth Circuit in a unanimous opinion by Justice Ruth Bader Ginsburg. The justices noted a line of cases holding that the nation has an overwhelming interest in the physical safety of any president.

The Court also reasoned there was a viewpoint-neutral explanation for the Secret Service’s actions. There was a two-story building between the president and his supporters. But there was no barrier between the president and his critics, and the protestors’ distance was well within the effective range of handguns and other weapons. Therefore the Secret Service was merely acting to protect the president’s physical safety by moving those protestors further away while not pushing back the president’s allies.

The Court also reaffirmed a line of cases regarding qualified immunity, under which certain types of government agents cannot be held financially liable for violating a person’s rights unless the officer violates “clearly established” rights. That means any reasonable officer would have been aware that what they were doing was an illegal infringement on a person’s liberty.

Ginsburg wrote for the Court that even if there were a violation, the agents were still covered by qualified immunity because legal precedent did not previously inform them that pushing back protestors violates the First Amendment. This was an unplanned stop. Secret Service had thus done no planning and had no security framework in place. The agents were making on-the-spot calls attempting to keep the president safe.

No Supreme Court case clearly indicated that agents could not take these steps. Thus there was likely no constitutional violation at all, but even if there were, under these circumstances federal agents cannot be personally held financially liable.

Ken Klukowski is senior legal analyst for Breitbart News. Follow him on Twitter @kenklukowski

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