Secret Service didn't clip rights of anti-Bush protesters, Supreme Court says

Secret Service agents did not engaged in unconstitutional viewpoint discrimination in 2004 when they ordered protesters opposed to then-President George W. Bush to be moved farther away from the chief executive than a group of pro-Bush demonstrators, the US Supreme Court ruled on Tuesday.

In a unanimous decision, the high court said that the Secret Service agents acted in response to valid security concerns when they decided to relocate protesters who were within weapons range of Mr. Bush.

The court’s 18-page decision reversed an appeals court ruling that upheld a First Amendment lawsuit filed by the American Civil Liberties Union claiming that Secret Service agents violated the free speech rights of 200 to 300 anti-Bush demonstrators.

The suit included allegations that the White House maintained a policy of intentionally pushing anti-Bush protesters farther away from campaign events or presidential travel routes.

The appeals court had ruled that Secret Service agents were not entitled to immunity from a civil lawsuit filed by protesters claiming the presidential protectors played favorites between pro-Bush and anti-Bush demonstrators.

In reversing that decision, the high court said the Secret Service agents were entitled to qualified immunity from the protesters’ lawsuit.

“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,” Justice Ruth Bader Ginsburg wrote for the court. “Nor would the maintenance of equal access make sense in the situation the agents confronted.” 

The decision stems from an October 2004 campaign trip by then-President Bush to Jacksonville, Ore.

The president was expected to travel by motorcade through the downtown area to a nearby cottage where he was scheduled to spend the night. In anticipation of the president’s drive through Jacksonville, two groups assembled in the downtown area.

Pro-Bush demonstrators took up positions on the west side of the street, while anti-Bush protesters congregated on the east side. Both were anticipating the opportunity to deliver their intended messages to the president as he sped past them in the motorcade.

At the last minute, the presidential plans changed. Instead of speeding past in the motorcade, the commander in chief’s entourage stopped in downtown Jacksonville to permit the president to visit a local restaurant for a meal. Bush’s table was located on an outdoor patio.

The change in plans presented a problem for Secret Service agents. They determined that the demonstrators on the east side of the would-be motorcade route were too close to the president, or as Justice Ginsburg put it, within weapons range.

The agents decided to relocate the protesters a block further to the east.  

While the pro-Bush demonstrators remained in their original position on the west side of the planned motorcade route, the anti-Bush demonstrators were forced back a full block away from the motorcade route.

The problem, according to the Secret Service, was that the east side protesters were located directly in front of the president’s restaurant and a short distance from the patio.

In their lawsuit, lawyers with the ACLU said the demonstrators were moved because of their anti-Bush message. Government lawyers countered that the agents were concerned about a potential security threat by the assembled group on the east side of the road who were too close to the patio.

Government lawyers argued that the Secret Service needs discretion to make such judgment calls on the fly, without fear of later being sued by demonstrators.

A federal appeals court panel rejected that rationale, ruling instead that the agents engaged in viewpoint discrimination by moving the anti-Bush group farther away from the motorcade route than the pro-Bush group. The appeals court said the agents acted with the sole intent to discriminate against the anti-Bush protesters because of their viewpoint.

In reversing that opinion, Ginsburg acknowledged that the First Amendment disfavors viewpoint-based discrimination by government officials.

“But safeguarding the President is also of overwhelming importance in our constitutional system,” she said. 

Ginsburg said a map of the area surrounding the restaurant “undermines the protesters’ allegations of viewpoint discrimination as the sole reason for the agents’ directions.”

“The map corroborates that, because of their location, the protesters posed a potential security risk to the President, while the supporters, because of their location, did not,” she said.

“As the map attached to the complaint shows, when the President reached the patio to dine, the protesters, but not the supporters, were within weapons range of his location,” Ginsburg said. “Given that situation, the protesters cannot plausibly urge that the agents had no valid security reason to request or order their eviction.”

ACLU legal director Steven Shapiro said he is disappointed in the decision.

“No one disputes that the Secret Service has an overriding interest in protecting the President but that does not include the right to shield the President from criticism,” Mr. Shapiro said in a statement. “In our view, the jury should have been allowed to decide whether this case was actually about security or censorship.” 

The case was Wood v. Moss (13-115).