U.S. Supreme Court

Secret Service agents have immunity in protesters' First Amendment suit, Supreme Court rules

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The U.S. Supreme Court has ruled that Secret Service agents are entitled to immunity in a suit filed by protesters who claimed their First Amendment rights were violated.

Justice Ruth Bader Ginsburg wrote the opinion (PDF) for a unanimous court in Wood v. Moss.

Michael “Mookie” Moss and other protesters had claimed their free-speech rights were violated when Secret Service agents moved them away from a Jacksonville, Oregon, restaurant where President George W. Bush was dining on the patio in October 2004.

The protesters were moved about two blocks away to an area “beyond handgun or explosive reach of the president,” Ginsburg said. Supporters about a half block away were allowed to stay. The opinion included two maps showing the locations.

The protesters alleged the Secret Service had an unwritten policy to eliminate protest from Bush’s appearances, and they claimed the agents engaged in viewpoint discrimination.

Ginsburg said no clearly established law controlled the agents’ response, and they were entitled to immunity. “Faced with the president’s sudden decision to stop for dinner, the Secret Service agents had to cope with a security situation not earlier anticipated. No decision of this court so much as hinted that their on-the-spot action was unlawful because they failed to keep the protesters and supporters, throughout the episode, equidistant from the president,” Ginsburg wrote.

The opinion assumed—without deciding—that the protesters could bring a damages suit against federal officers for allegedly violating their First Amendment rights. The protesters sued under the Supreme Court’s 1971 Bivens decision, which recognized an implied right of action against federal officers for Fourth Amendment violations.

“We have several times assumed without deciding that Bivens extends to First Amendment claims,” Ginsburg wrote. “We do so again in this case.”

Hat tip to SCOTUSblog.

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