Thursday, May 29, 2014

Presidential protest too close for comfort

There's free speech, and then there's national security. What'll it be? In this case, the Supreme Court resolves two clashing principles: the right to speak your mind and protest before government officials, and the need to protect the President of the United States from assassination.

The case is Wood v. Moss, decided by a unanimous Court on May 27. The case began in 2004, when President Bush was campaigning for re-election. When the President comes to town, it's protest time. Bush supporters lined up along the motorcade route because we love our President and all that he stands for. Anti-Bush protesters also lined up along the motorcade route because they were malcontents who hated America. The President then made the spur-o'-the-moment decision to eat dinner at a nearby Inn before he headed off for good. Secret Service then moved the anti-Bush people further away than the Bush supporters, beyond W's sight and hearing. This was to protect the President, Secret Service said, "to ensure that no demonstrator would be 'within handgun or explosive range of the President.'"

The Supreme Court says the Secret Service cannot be sued under the First Amendment for moving the Bush-haters further away from the President. Normally, the Court says, this might be a case of viewpoint discrimination, which violates the First Amendment. The protesters claim they were denied equal access to the President. But there is a contrary interest, writes Justice Ginsburg: the need to protect the safety of the Chief Executive. As Justice Breyer once wrote, "The physical security of the President of the United States has a special legal role to play in our constitutional system."

This case reaches the Court on a qualified immunity appeal. That immunity protects public officials from civil rights lawsuits if they do not violate clearly-established rights. To say that the unwashed protesters have rights under the First Amendment frames the issue too broadly. Courts frame it more narrowly in qualified immunity cases in recognition that rank-and-file public employees and servants are not legal scholars and cannot anticipate esoteric or new court rulings the way that law professors can. So, as the Court puts it in this case, "no decision of which we are aware ... would alert Secret Service agents engaged in crowd control that they bear a First Amendment obligation to ensure that groups with different viewpoints are at comparable locations at all times. Nor would the maintenance of equal access make sense in the situation the agents confronted." Looking at the issue that way, the Court finds that the officers are entitled to qualified immunity, even if the plaintiffs' think they got shafted that night.

A wise lawyer once told me that if you want to stifle speech, just claim "security" as the justification. Security trumps everything. I am not trivializing the threats to the President, but security is the name of the game in this case. The Court repeatedly makes explicit reference to what can happen to the President if the crowd gets out of control. Maybe the Justices believe that a select few federal officials, like the President, high-ranking members of his cabinet, prominent congresspeople and Supreme Court Justices, always see themselves as potential targets. I don't know if this case has broader application to other protest cases, but under this ruling, the President is off-limits.

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