Secret Service case ruling sidesteps First Amendment

Tuesday, June 5, 2012

WASHINGTON — Yesterday’s Supreme Court decision in Reichle v. Howards mentions the First Amendment 24 times.

But the ruling, granting Secret Service agents immunity from being sued for certain kinds of arrests, is unlikely to find a place in the pantheon of great First Amendment decisions.

That’s because Justice Clarence Thomas, author of the majority opinion, went out of his way to avoid the First Amendment-related issue, and in the process gave it short shrift.

The case arose from a routine visit by then-Vice President Dick Cheney to a Colorado shopping mall in 2006. Local resident Steven Howards drew the attention of Secret Service agents guarding Cheney because of critical statements he made about Bush administration policy both before and during a brief encounter with the vice president. Howards touched Cheney on the shoulder during the encounter, but under questioning by Secret Service agents denied doing so. Howards was arrested on local harassment charges that were later dismissed.

Howards sued the agents for violating his Fourth Amendment rights by arresting him without probable cause, and his First Amendment rights by arresting him in retaliation for his criticisms of Cheney.

The case came to the Supreme Court as the latest in a series involving “qualified immunity” — whether law enforcement officials deserve to be shielded from lawsuits for constitutional violations allegedly made in the course of their official acts. The high court usually considers first whether there was a constitutional violation, and then whether the violation was so clear at the time that the officers should have known they were crossing the line.

But in yesterday’s decision, Thomas said that “we elect to address only the second question,” in other words sidestepping whether Howards’ arrest violated his First Amendment rights. The Court moved to the second question and found that no matter how the First Amendment issue would have been decided now, it was not clear in 2006 that an arrest like Howards’ would violate the First Amendment.

In a footnote, Thomas said the Court, in Bivens v. Six Unknown Federal Narcotics Agents (1971), had found that individuals could sue federal officials for Fourth Amendment violations, but “we have never held that Bivens extends to First Amendment claims … . We need not (and do not) decide here whether Bivens extends to First Amendment retaliatory claims.”

Later Thomas added, “This court has never recognized a First Amendment right to be free from a retaliatory arrest that is supported by probable cause.”

In a friend-of-the-court brief, the American Civil Liberties Union had warned that “freedom from retaliation is an essential ingredient of freedom of speech.” An arrest that would not have occurred but for the exercise of protected free speech is unconstitutional, the ACLU said. But the justices chose to leave that question unanswered.

Howards’ attorney, David Lane, told the Associated Press yesterday, “It’s shockingly unusual to see a case carry absolutely not one shred of precedential value. This is that case. They broke absolutely no legal ground while managing to duck every significant issue in the case.”

John Whitehead, president of the Rutherford Institute, said of the decision, “If Americans are not able to challenge law enforcement officials over retaliatory arrests under the First Amendment, few, if any, checks will remain to deter government officials from employing intimidating tactics designed to chill the exercise of unpopular or critical political speech.” The institute filed a brief in the case on behalf of Howards.

The late Justice William Brennan Jr. once said the First Amendment was the most important part of the Constitution, and the rest was “window dressing.” That was not how Thomas, an idiosyncratic friend of free speech, viewed the First Amendment yesterday.

Related: Supreme Court shields Secret Service agents

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