... but it won't be. Blame qualified immunity. In this case, the Supreme Court unanimously holds that an anti-war plaintiff cannot sue Secret Service agents for retaliatory arrest under the First Amendment. While the Supreme Court has never said whether you can -- or cannot -- bring a lawsuit like this, the Court says the state of the law was too murky at the time of his arrest to allow the plaintiff to sue the agents for damages.
The case is Reichle v. Howards, decided on June 4. Howards saw Vice President Dick Cheney at a public event in 2006. Of course, Secret Service were standing by. One of them heard Howards tell someone else that he was going to ask Cheney how many children he killed today, a reference to the Iraq war. The agents then monitored Howards closely. The Court writes, "when Howards approached the Vice President, he told him that his 'policies in Iraq are disgusting." Howards then touched Cheney and walked away. When the Secret Service asked Howards if he touched (or "assaulted") Cheney, Howards falsely denied doing so. Howards was arrested for harassment, but the charge was later dropped.
So can Howards sue the Secret Service under the First Amendment for retaliatory arrest? There was probable cause under the Fourth Amendment to arrest him for harassment. But free speech retaliation under the First Amendment is another animal, right? Maybe not. This is where qualified immunity comes in. Under qualified immunity, public officials cannot be sued for damages if the law was not clearly established at the time. This is because police officers cannot be expected to be legal scholars, able to predict how the courts are going to interpret certain behavior under the Constitution. What muddied the waters in this area was the Supreme Court's decision in Hartman v. Moore, 547 U.S. 250 (2006), which said that retaliatory prosecution cannot proceed under the First Amendment if the charges are supported by probable cause. While prosecution is a little different from arrest (prosecutors are immune from all suits and do not arrest the defendant, while police officers who do make arrests may be sued directly for constitutional violations), it's close enough that Secret Service officers might reasonably think that the Hartman case protected them from any First Amendment violations.This means that Howards' case dies at the alter.
What makes cases like this maddening is that the Supreme Court does not have to find that there actually was a constitutional right before deciding that the law was not clearly established. As the Supreme Court says in this case, "to be sure, we do not suggest that Hartman's rule in fact extends to arrests." If it wanted to, the Court could say that Howards' rights were violated under the First Amendment, but that the Secret Service officers had no reason to know that because the Supreme Court had never said that this conduct violated the First Amendment. Had the Court said that in this case, it would set the stage for the next such lawsuit to go forward, even if Howards' suit could not proceed. The next guy who sustains a retaliatory arrest, then, could bring a claim on the basis that the Howards case said this conduct violates the First Amendment. The Court does not do that, which means the law remains as murky as ever.
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