Protecting the Secret Service

By an 8-0 vote, the Supreme Court has ruled that a Colorado man who was arrested after physically accosting then-Vice President Dick Cheney can’t sue two Secret Service agents for violating his 1st Amendment rights. It’s the appropriate decision, but the court didn’t go far enough in making clear that agents who have probable cause to make an arrest shouldn’t be punished because of their dislike for the suspect’s opinions.

In 2006, Steven Howards confronted Cheney at a shopping mall in Beaver Creek, Colo., and told the vice president the war in Iraq was “disgusting.” He was completely within his rights to do so. But he then either pushed or touched Cheney — he initially denied any physical contact — and was arrested and detained for several hours, though charges were eventually dismissed. In filing a damages suit against the agents who arrested him, Howards contended that they had violated both his 4th Amendment right to be free from unreasonable searches and his 1st Amendment right to free speech.

The U.S. 10th Circuit Court of Appeals dismissed the 4th Amendment claim because it concluded that Howards gave the agents probable cause to arrest him by lying about his physical contact with Cheney. But the court ruled that Howards could still proceed with his 1st Amendment claim that his arrest was retaliation for expressing his opinions about the war. (One of the agents had overheard Howards telling someone on the telephone that “I’m going to ask him how many kids he’s killed today.” The agent admitted that the comment “disturbed” him.)

If the agents had arrested Howards simply because they disagreed with his criticism of Cheney, that would have been a violation of the 1st Amendment. But an otherwise legal arrest shouldn’t be considered invalid because the arresting officer also objected to the suspect’s opinions.

In ruling for the agents, the Supreme Court (with Justice Elena Kagan recusing herself) didn’t go that far. Instead, Justice Clarence Thomas’ majority opinion focused on the rule that law enforcement officers forfeit their immunity to personal lawsuits only if their conduct violates “clearly established law.” In this case, Thomas noted, the Supreme Court “has never recognized a 1st Amendment right to be free from a retaliatory arrest that is supported by probable cause.”

Nor should it in the future. Secret Service agents or police must not be allowed to arrest or punish protesters with whom they disagree on the pretext that they pose a danger. But if, to the satisfaction of a court, a protester crossed the line from speech to suspicious conduct that justifies arrest, an officer’s distaste for the protester’s views should be irrelevant.