By David K. Shipler
A case of security vs. speech, before the Supreme Court for oral argument today, may set important standards for law enforcement agents who make misjudgments in the heat of the moment. As usual on matters of civil liberties, the Obama Administration is on the wrong side.
Under President Obama’s predecessor, the Secret Service was mobilized to suppress political speech. To create glowing television portrayals of President George W. Bush wherever he spoke, White House staffers screened out people wearing anti-Bush T-shirts, had the Secret Service expel them from public presidential events, and even cruised parking lots looking for hostile bumper stickers so the cars’ occupants could be turned away once they reached the door. The Secret Service, which is supposed to protect the president from physical harm, protected him from political dissent as well, by instructing local police to restrict demonstrators to distant “free speech zones,” usually out of sight of both the president and the cameras.
Into this miasma strode Steve Howards, on his way through a mall in Colorado with his seven-year-old son. When he noticed Vice President Dick Cheney shaking hands, Howards went up to him and said something like, “Your policies in Iraq are reprehensible.” He may have used the word “disgusting.” Various recollections have altered minor details of the story since the incident in 2006. Howards may have touched Cheney lightly on his shoulder, how lightly is a matter of disagreement. It was not firmly enough to alarm the Secret Service, obviously, since Howards then went on his way, delivering his boy to a piano lesson.
About ten minutes later, walking back through the area with his other son, Howards was approached by an agent who asked if he had assaulted the vice president. Howards reacted “in shocked amazement,” he told the court, and later remembered himself giving a flip retort that must have angered the agent: “If you don’t want other people sharing their opinions, you should have him avoid public places.” He was handcuffed and hauled off to the police station. Although the charges were quickly reduced from assault to harassment, and then dropped, Howards sued. Now he’s in the Supreme Court.
Case law has long supported a concept of “qualified immunity” for public officials to prevent their being subjected to long and costly civil suits by any disgruntled citizen who is annoyed by their adverse behavior. Under Bivens v. Six Unknown Fed. Narcotics Agents, decided in 1971, officials have “qualified immunity” only so long as they work within the law and the Constitution. If they violate either, they are susceptible to monetary damages. The question here is whether Howards can show that the Secret Service agents violated his First Amendment right to free speech and his Fourth Amendment right against unreasonable seizure.
There is a danger in this case. Given the courts’ deference to protecting the president, vice president, and other senior officials from attack or assassination, Howards may not prevail, and the Court may broaden agents’ immunity. Judges are loath to tie the hands of the Secret Service in particular. And this Supreme Court has made it increasingly difficult to call officials to account. Recent decisions have slammed the courthouse door in the faces of immigrants who were so egregiously abused after 9/11—seized and jailed without probable cause, transferred to other countries for torture—that their right to sue the official perpetrators would seem like common sense, common decency.
Javaid Iqbal learned otherwise. He was locked in the Metropolitan Detention Center in Brooklyn, chilled with air conditioning during winter days and kept awake by constant blinding light. He had done nothing wrong, was cleared of any connections with terrorism, and sued when he was finally released. But the Supreme Court ruled 5-4 in 2009 that his suit could not proceed, that he could not subpoena documents and testimony, because he had not shown sufficient evidence in advance that Attorney General John Ashcroft and FBI Director Robert Mueller had intentionally engaged in ethnic or racial discrimination.
Until this case, civil suits were typically allowed to go to discovery unless rife with obviously fanciful claims. Under the new standards, judges may dismiss suits at the outset, before any fact-finding, if they don’t see the claim as “plausible.” How they would know without the facts is a mystery, and the new Catch-22 constructed by the Supreme Court prevents you from gathering the facts unless you already have them.
The Howards case gives the Court an opportunity to make this worse. Although there is little dispute about the facts, the 10th Circuit already ruled his arrest justified, leaving open only his contention of retaliatory arrest for exercising his First Amendment rights. The current justices, including the conservatives, have issued opinions vigorously defending free speech, but have been less sensitive to speech violations in security cases.
Most such disputes between protesters and law enforcement during the Bush administration were resolved out of court with taxpayer dollars, sometimes in handsome settlements to the victims. This could have gone the same way, had the Obama administration recognized the absurdity, and the constitutional risk, of supporting Secret Service agents who act like thought police.