U.S. Supreme Court justices signaled they will bolster the Secret Service’s legal immunity as they weighed a bid to sue agents for allegedly shielding President George W. Bush from protesters a decade ago.
Hearing arguments in a case that tests the balance between security and speech rights, justices from across the ideological spectrum suggested skepticism toward the lawsuit. The case stems from a 2004 campaign stop by Bush in Jacksonville, Oregon.
By the end of the 60-minute session, the main question was how far the court will go in insulating agents from claims that they unconstitutionally discriminated on the basis of viewpoint. Justice Antonin Scalia said he wished the Obama administration, which is urging rejection of the suit, had presented more sweeping arguments against such lawsuits.
“It seems to me you want to win this case but not too big,” Scalia told Deputy Solicitor General Ian Gershengorn.
Seven Bush critics say the Secret Service showed favoritism toward the former president’s supporters during his October 2004 campaign stop. The seven people say that, unlike pro-Bush demonstrators, they were forced to move two blocks from the hotel where the president was dining.
The Obama administration contends that Secret Service agents can’t be sued as long as they have a valid security reason for their actions.
“If you have an agent who has a legitimate security rationale and is going to move against somebody who’s hostile, who’s showing a message that’s hostile to the president, you don’t want that agent to hesitate,” Gershengorn said.
At the same time, the administration left open the possibility of a suit if agents were acting solely on the basis of viewpoint.
Several members of the court indicated the Secret Service can and should take viewpoint into account when they are making split-second decisions about the president’s safety.
Chief Justice John Roberts asked the lawyer for the protesters, Steven Wilker, what agents should do when they suddenly need to move a president and have a choice between traveling through a supportive crowd or a protesting one.
“Guns are going off, explosions,” Roberts said. “Which way do you go?”
Justice Elena Kagan suggested she saw a legitimate security reason behind the agents’ actions in Jacksonville. Before the anti-Bush protesters were moved, they were near an alley next to an outdoor patio where the president had made a last-minute decision to dine. She pressed Wilker to concede that the demonstrators were close enough to “throw a grenade” onto the patio.
Kagan then quizzed Gershengorn on the limits of the Secret Service’s discretion, asking whether they could be sued if they admitted to local police that they were moving protesters only because “they’re annoying the president.”
Justice Sonia Sotomayor said the pro-Bush demonstrators were similarly positioned to harm the president. They were within “throwing distance of a bomb or shooting distance as well,” she said.
Wilker argued that the “sole cause of the move here was the viewpoint being expressed.”
The lawsuit, pressed by the American Civil Liberties Union, says the Oregon incident was one of 13 in which the Secret Service kept protesters away from Bush.
The justices took a narrow approach in the case, saying Secret Service agents were immune from a suit without deciding whether the man’s First Amendment rights were violated.
The case, which the court will decide by July, is Wood v. Moss, 13-115.
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