It is not often US Supreme Court justices have occasion to
consider the logistics of being within grenade-tossing distance
of the president of the United States.
But that became a main point of discussion during oral argument
at the high court on Wednesday in a case testing whether Secret
Service agents can be held personally responsible for allegedly
violating the free speech rights of more than 200 would-be
presidential protesters.
The issue arises in a lawsuit filed by the American Civil
Liberties Union on behalf of a group of demonstrators who sought
to confront then-President George W. Bush during a visit to
Jacksonville, Ore., in 2004.
The protesters wanted to express their displeasure with Mr.
Bush, but they say federal agents ordered them to move farther
away from the president because of the anti-Bush nature of their
intended message. The relocation placed them farther from Bush
than a group of the president’s supporters that had also staked
out a position nearby in Jacksonville.
In their suit, the protesters charge unconstitutional viewpoint
discrimination by Secret Service agents. They say such behavior
was consistent with a pattern in the Bush White House of
suppressing dissent at presidential appearances. The suit says
there were as many as 12 other instances of Secret Service
agents muzzling anti-Bush demonstrations.
The government moved to dismiss the case, but a federal appeals
court upheld the litigation.
On Wednesday, the case arrived at the Supreme Court to a chilly
reception from the justices.
During an hour-long argument session, several justices appeared
to readily agree with a government lawyer who said the Secret
Service agents took action to move the protesters as a result of
valid security concerns.
“I think it is important in this context to remember that what
we have are Secret Service agents who are making on-the-spot
judgments while protecting high-level officials,” Deputy
Solicitor General Ian Gershengorn told the justices.
Steven Wilker, a Portland, Ore., lawyer arguing on behalf of the
ACLU, said the federal agents were not concerned with potential
security threats. He said they ordered the protesters to be
relocated solely because of the nature of the protesters' anti-
Bush message.
Initially, the protesters were located on the sidewalk at the
entrance to an alley that passed beside a patio restaurant where
the president was dining. The government maintains that the
outdoor restaurant and proximity to the protesters created a
valid security issue for the Secret Service, justifying the
order to move the protesters back.
Justice Ruth Bader Ginsburg put the question directly to Mr.
Wilker. “Would you say that you would have no tenable case if
they moved [the protesters] just the one street over so they
wouldn’t be in a position to throw a hand grenade to the patio,”
she asked.
Wilker responded that it would make it a more difficult case for
the plaintiffs to win.
Justice Elena Kagan asked Wilker if he conceded that in
hindsight the agents had an objective security rationale for
moving the protesters. That rationale: “They are standing at the
foot of the alleyway, [and] that you could throw a grenade into
the patio area.”
Wilker said the entrance to the alleyway was blocked by police
in riot gear and that the more simple solution would have been
to move the protesters “slightly to the east or west where they
had buildings between them and the president.”
Later in the argument, Wilker made a more direct concession.
“Could there be a security interest? Yes, there could
hypothetically be one,” he said. “Was there one? We say there
was not.”
In his rebuttal argument, Deputy Solicitor General Gershengorn
told the justices that agents protecting the president must
engage in rapid decisionmaking and should not be second-guessed
without clear evidence that they weren’t responding to a
perceived security issue.
“The concession that in hindsight there may have been a valid
security rationale ends this case,” he said. “If it was true in
hindsight, it was certainly true at the time of the kind of
rapid decisionmaking that was called for.”
Gershengorn added: “I think at that point the case is over in
our favor.”
During Bush’s brief visit to Jacksonville, the president ate a
meal at the outdoor restaurant and then proceeded by motorcade
to his lodging for the night.
The itinerary allowed for two possible opportunities for
supporters and protesters to communicate their messages to Bush.
One was during his meal at the outdoor patio. The second was to
be positioned along the expected motorcade route.
The Secret Service prevented any access to the patio restaurant,
and after moving the protesters, only the pro-Bush demonstrators
had access to the motorcade route.
The Secret Service is charged with protecting the president from
threats – including the very real possibility of assassination
and terror attacks. But the Secret Service is not charged with
surrounding the nation’s chief executive in an artificial bubble
of praise and adulation, while protecting him from members of
the public who might be prone to express criticism or
disagreement.
The problem with a case that pits the security of the president
against free speech rights of protesters is that the Supreme
Court has a history of siding with federal agents in such
matters. The danger is that if the line is drawn too brightly,
an agent may hesitate at exactly the wrong moment.
It is not the only issue, however.
“Everyone understands the importance of guarding the president
in this country,” Justice Stephen Breyer said at one point
during the argument. “Everyone understands the danger. You can’t
run a risk,” he said.
“At the same time, no one wants a Praetorian Guard that is above
the law, and we have examples in history of what happens when
you do that,” Breyer said. “So everyone is looking for some kind
of line that permits the protection but denies the Praetorian
Guard.”
The case is Wood v. Moss (13-115). A decision is expected by
late June.
http://www.csmonitor.com/USA/Justice/2014/0326/Is-Secret-Service-
above-the-law-Supreme-Court-hears-protest-case