The Hobby Lobby case was not the only important First Amendment action at the U.S. Supreme Court this week. While “corporations-of-faith” demanded the right to discriminate, the government itself demanded the right to suppress political speech.
Attorneys on Wednesday argued a case called Wood v. Moss, which looks at whether the Secret Service may treat protesters differently based on their views.
The case involves an incident in 2004 when President George W. Bush ate on the patio of a restaurant in Jacksonville, Oregon. Both pro-Bush and anti-Bush demonstrators gathered on nearby streets. The anti-Bush demonstrators happened to stake out space closer to the president.
The Secret Service ordered the anti-Bush folks to move. They insist it was as a security precaution.
That alone would not have been a problem. It’s the agents’ job to keep a safe zone around the commander in chief.
The problem is that they allowed pro-Bush supporters to remain closer than detractors. Presumably, supporters then had a better chance of being seen and heard by the president and media.
Anti-Bush demonstrators claim that the Secret Service’s real goal was not insulating the president from safety, but from indigestion; that the Secret Service feared the content of the speech, rather than any danger posed by the demonstrators themselevs. They filed a lawsuit against the agents involved, alleging that those agents violated protesters’ constitutional rights.
The fundamental question is not whether Secret Service agents have the right to protect the president. They have wide latitude to ensure the president’s safety. And they may limit free speech and other rights when doing their job, especially when agents must act during a crisis.
What happened in Oregon was something else. Agents had time to weigh options, and they chose to treat people who disagreed with the president differently than they treated Bush’s supporters. That sort of viewpoint discrimination cuts at the heart of the First Amendment.
If agents had moved everyone back to the same distance, there would have been no foul. All they needed to say was, “We’re worried about the president’s safety. All demonstrators need to stay at least a block away from the restaurant.” Instead, they gave preferential treatment to one side, to one argument.
Justice Stephen Breyer articulated the tension during Wednesday’s hearing. “I know everyone understands the importance of guarding the president in this country. 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 of history of what happens when you do that. So everyone is looking for some kind of line that permits the protection but denies the Praetorian Guard.”
Some conservatives have tried to draw parallels between this case and a case the court heard earlier this year challenging buffer zones around clinics that provide abortions. They argue that one cannot consistently criticize the Secret Service and support buffer zones.
That argument contains a false equivalency, though. Clinic buffer zones apply to pro-choice and anti-choice activists alike. There is no viewpoint discrimination. Moreover, clinic laws aim to protect the already-adjudicated constitutional rights of women to seek medical help (abortion or otherwise) without having to run a gauntlet of harassment and intimidation. The president enjoys no constitutional right to a quiet lunch. And in any case, private citizens are not the same as public officials. The president’sofficial actions are inherently matters of public concern.
The courts historically have ruled that political speech deserves the First Amendment’s strongest protection. The notion that we all have equal opportunity to publicly support or oppose laws, and wars, is at the core of our democracy.
If the Supreme Court now rules that agents of the government may treat people differently based solely on what they have to say, it will grant government the power to silence dissent. The Secret Service would become Breyer’s Praetorian Guard, and that is precisely what the Founders sought to prevent.