The Supreme Court opted for safety and security over free speech Monday, ruling that Secret Service agents cannot be sued for arresting a Colorado man who confronted former Vice President Dick Cheney on the street and said his "policies on Iraq are disgusting."
The right to free speech does not protect citizens from a "retaliatory arrest," the justices said, if police or federal agents have probable cause to take them into custody. In the Cheney case, a judge said the agents had reason to arrest Steven Howards, the protester, because he had either touched or bumped the vice president.
"This court has never recognized a First Amendment right to be free from a retaliatory arrest that is supported by probable cause," said Justice Clarence Thomas. Such a right was certainly not "clearly established at the time of Howards' arrest," he added. Public officials are usually shielded from lawsuits for carrying out their duties unless they violate a constitutional right that is understood and "clearly established" in law.
Howards said he was disappointed by the decision. "I was arrested and taken to jail for telling the vice president what I thought of his policies. That shouldn't happen in Iran or in China, and it should not happen in the United States of America," he said by phone.
Two years ago, the justices rejected a similar free-speech appeal involving George W. Bush when he was president. Leslie Weise, a Colorado woman, had a ticket to hear Bush speak, but she and a friend were removed from the auditorium when agents learned their car had a bumper sticker that read "No More Blood for Oil." The court turned down her free-speech claim by a 7-2 vote.
Monday's decision was unanimous, although Justices Ruth Bader Ginsburg and Stephen G. Breyer would have limited the holding to Secret Service agents rather than law enforcement generally. Justice Elena Kagan sat out the case.
The issue stems from June 16, 2006, when Howards noticed Cheney emerging from a shopping mall in Beaver Creek, Colo., and chatting amiably with several people. As agents watched, Howards confronted Cheney and allegedly pushed or touched him on the shoulder as he voiced his criticism.
Nothing happened at first. Gus Reichle, a Secret Service coordinator, heard about the incident from other agents. He then stopped Howards, accused him of an assault and ordered his arrest. Howards was detained for several hours and released.
He then sued Reichle and Agent Dan Doyle and accused them of violating his Fourth Amendment rights against an unreasonable seizure and his First Amendment right to freedom of speech.
The federal district and appeals courts in Colorado ruled that there was no valid Fourth Amendment claim but allowed the free-speech lawsuit to go forward.
The Obama administration joined lawyers for Reichle in urging the high court to throw out the lawsuit.