The Supreme Court Will Decide Whether Secret Service Agents Have Immunity When Protecting the President From Demonstrators (Non-Supporters of the President) by Keeping Them Farther Away From the President than the Supporters
The Supreme Court recently granted certiorari in Wood v. Moss to decide “[w]hether the court of appeals erred in denying qualified immunity to Secret Service agents protecting the President by evaluating the claim of viewpoint discrimination at a high level of generality and concluding that pro-and anti-Bush demonstrators needed to be positioned an equal distance from the President while he was dining on the outdoor patio and then while he was travelling by motorcade.”
The petitioners in this case are Secret Service agents who, while protecting President George W. Bush, are alleged to have required that a group of 200 to 300 anti-Bush demonstrators be moved away from an alley next to an outdoor patio hotel restaurant where President Bush made a last-minute and unscheduled stop to dine. After the Secret Service moved the anti-Bush demonstrators, they were less than one block farther from the alley than a group of pro-Bush demonstrators (who had not been adjacent to the alley at the outset).
They were also two blocks farther from the route that the President's motorcade subsequently took when he left the restaurant. The respondents in this case are Moss and other anti-Bush demonstrators, who brought a Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), action against the Secret Service Agents who were assigned to protect President Bush during the event in question. The respondents argue that the secret service agents’ actions shielded the president from their unwelcome message while the president was dining, instead of moving them because the secret service had a legitimate concern related to security. Specifically, the respondents allege the secret service agents were motivated by an impermissible purpose to discriminate against the anti-Bush viewpoint that the protestors expressed.
A restriction on speech is viewpoint-based if (1) on its face, it distinguishes between types of speech or speakers based on the viewpoint expressed; or (2) though neutral on its face, there is motivation to suppress a particular viewpoint.
The U.S. Court of Appeals for the Ninth Circuit considered the agents’ differential treatment of the pro and anti-Bush demonstrators. The court of appeals stated in its decision, “Our opinion makes clear that there is simply no apparent explanation for why the Secret Service agents permitted only the pro-Bush demonstrators, and not the anti-Bush protestors, to remain along the President’s after-dinner motorcade route.” In regards to the issue of viewpoint discrimination, the court of appeals determined in it analysis, “The question is not why the agents moved the anti-Bush protestors somewhere, but rather why the agents moved the protestors a considerable distance, to a location that, as we have explained, was in ‘relevant ways . . . not comparable’ to the place where the pro-Bush group was allowed to remain.” Thus, the court of appeals held that the Secret Service agents are not entitled to qualified immunity from a claim under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), of viewpoint discrimination in violation of the First Amendment.
The Supreme Court is expected to hear oral argument in Wood v. Moss, No. 13-115, in spring 2014.
This case law update was written by Michael S. Causey, associate attorney, Shaw Bransford & Roth, PC.