Will the Supreme Court allow the Secret Service to silence dissent?

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.


Christian Trejbal is a member of the board of directors of the Association of Opinion Journalists, writes for Opinion in a Pinch and is an open government chairman for the Association of Opinion Journalists. Overcoming graduate degrees in philosophy, he worked as an editorial writer at The (Bend) Bulletin and The Roanoke Times for more than a decade. In 2013, he and his wife moved to Portland, Ore., where he writes freelance and provides public policy analysis. Follow him on Twitter @ctrejbal.

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  • Dave

    If these facts are accurate, the law is clear and Secret Service was wrong. Has nothing to do with abortion bufferzones, though.

  • kurtsteinbach

    Well, remember people wearing anti-Bush t-shirts being removed from the ’04 Convention and from places and halls where President Bush was going to speak or was speaking. President Obama doesn’t do that. If he had the people waving the Confederate Flag in front of the White House removed, the Right’s head’s would have exploded. I definitely prefer this President. Bush was an idiot because he didn’t understand the Constitution, Obama is a good President, in part because he does. The problem is, the RWNJs are less than 15% of the population, and Obama needs to stop giving %15 percent of the population equal time and attention that he gives to the other 85% of the population. I am so glad Obama is no longer trying to be bipartisan according to Conservatives….

  • Sweetie

    “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.”

    The rebuttal will be that the anti-Bush demonstrators represent a higher safety threat because of their anti-Bush animus. Convenient, eh? It, of course, ignores the fact that someone who wants to harm the president beyond just political pressure would be more likely to pose as a pro-Bush demonstrator to take advantage of that very bias.

  • cole3244

    with this court and the political atmosphere today the cons will have an advantage for some time imo.

  • Space Cowboy

    About the same time speech zones were being debated Bush announced plans to send men back to the moon, which I thought sounded awfully convenient…

  • Just_AC

    And Meanwhile, I sent Gaius and John an article yesterday from a source I’m not too sure of that was talking about Senator Dianne Feinstein trying to limit the protection of Journalists to keep their sources private

    http://www.activistpost.com/2014/03/feinsteins-bill-to-kill-free-speech-of.html

  • http://www.rebeccamorn.com/mind BeccaM

    Remember the ‘Free Speech Zones’? The ones that consisted of chain-link cages a mile or more away from the target of any given protest?

    It was always about stifling dissent and preventing it from being seen by the media — as well as not to burden our Glorious Leader’s Holy Eyes with the sight of people who disagreed with and disliked him.

  • http://parkandbark.wordpress.com/ Houndentenor

    I was in NYC during the 2004 GOP Convention. People were arrested and detained for over 24 hours just for having been walking through a protest on their way to work. Of all the abuses involving protest and free speech during the Bush years, this case seems awfully weak.

  • perljammer

    I don’t think they removed anybody; they just moved them farther away. The complaint is that the supporters got to be closer than the protesters. The reason (according to Secret Service) for the move was that GWB changed his lunch plans; the new location put the protesters too close.

    The write-up on SCOTUSBlog is actually very interesting (see the Wood v. Moss link in the original post).

  • http://trejbal.net/opinion/ Chris Trejbal

    Good point, Hound. I think it’s safe to assume that someone who wanted to harm the president would be clever enough to act whatever way gets him the closest.

  • http://parkandbark.wordpress.com/ Houndentenor

    I’m certainly no expert on this issue, but it seems to me that someone wishing to harm someone would stand a better chance of getting close enough to do so by pretending to be a supporter rather than a detractor. If the reason for removing people is the security, then all protesters should have been removed. I don’t think there’s any reason to believe that security was the real reason for this action.

  • eahopp

    Then what? I’m sure the Secret Service will be forcing people to line the streets, waving little flags as Dear Leader drives by in his armored motorcade, seeing how happy and supportive his citizens are for the new regime.

    Potemkin would be laughing his ass off.

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