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The Fuzzy Line Between Speech And Security

facade of the Jacksonville Inn in Jacksonville, Oregon
The Jacksonville Inn, Jacksonville, Oregon. Photo by Flickr user Einahpets32

A last-minute decision to dine alfresco usually creates no more inconvenience than having to dab on a bit of sunscreen. If you are the president of the United States, however, it can trigger a decade-long lawsuit.

In this case, the president was George W. Bush and the lawsuit, which the Supreme Court decided this week, was Wood v. Moss.

In 2004, then-President Bush made a campaign appearance in Jacksonville, Oregon. Two groups of people, pro-Bush and anti-Bush, had gathered with the permission of local law enforcement on opposite sides of a street that the president’s motorcade was scheduled to travel en route to his hotel. However, Bush made a last-minute decision to stop in town for dinner, at a nearby restaurant with an outdoor patio. The protesters moved closer, while the supporters remained in their initial place across the street. Secret Service agents directed local police to move the protesters two blocks away - both out of weapons range and farther away than the supporters’ position.

Several of the protesters, backed by the American Civil Liberties Union, later sued Secret Service agents Tim Wood and Rob Savage, claiming that the protesters were treated differently than the Bush supporters because of the content of their message.

Now, a decade later, the Supreme Court has unanimously ruled that the Secret Service agents could not be sued for depriving demonstrators of their alleged right to be seen and heard by the president. While the case is interesting on its own merits, I am less interested in the verdict than in the reasoning underpinning it.

In the Court’s opinion, Justice Ruth Bader Ginsburg expressed the point of view that the Secret Service acted on a legitimate security concern. The restaurant patio where Bush had decided to dine would have put the president in weapons range of the anti-Bush protesters, according to the Secret Service agents, while the pro-Bush crowd was out of range. The Court agreed.

Implied in the Court’s decision, and something I strongly doubt the Supreme Court justices believe unanimously, is the idea that in the absence of a security threat that a court or other third party might recognize as legitimate, the demonstrators would have had a right to air their vantage point near the president - or at least near the cameras following him. Rather than tackle the stickier issue of whether such a right exists at all, the Court chose to make it a non-issue, sticking to the agents’ qualified immunity in this particular circumstance. As Lyle Denniston noted at SCOTUSblog, this decision will make it challenging for a protest group to win a similar case in the future, but will not render such an outcome impossible.

The First Amendment guarantees freedom of expression and freedom to petition the government for a redress of grievances. It does not, as far as I know, guarantee a blanket right to be heard or seen. Any of us can speak; the rest of us can choose to ignore the speaker. Certainly President Obama does not spend much time concerning himself with my opinion of his policies - nor should he be required to do so.

On the other hand, when it comes to the right to peacefully assemble in a public space, all of us do have a right to expect even-handed treatment from the authorities. Discrimination in such treatment based on the content of our expression is a form of censorship, presumably proscribed.

The Supreme Court decided in Wood v. Moss that the protesters were treated differently because they were closer to the president than were the Bush supporters, with differing lines of sight. The Court emphasized that discrimination between the groups’ messages was not the sole reason for the action, suggesting that there would have been a problem if it had been. Had both groups been in the same physical location, it would have been more obvious whether discrimination based on their respective beliefs took place.

The simplest answer going forward is designate secure areas, ideally somewhere in the same ZIP code as visiting public officials, but not necessarily close enough to pose any risk. Anyone would be free to express their views there. This solution will doubtless fail to sate critics of the Court’s decision, who won’t be able to get close enough to satisfy their attention-seeking goals. But the right to free speech doesn’t come with the right to heckle a politician or the right to get one’s placards into camera range. The First Amendment does not come prepackaged with a megaphone.

The Supreme Court’s decision answers one specific question, but seems to leave open the more general one: Where exactly can the Secret Service, or any other arm of government, draw lines between security and free speech? That answer, it seems, will have to wait for another day.

Larry M. Elkin is the founder and president of Palisades Hudson, and is based out of Palisades Hudson’s Fort Lauderdale, Florida headquarters. He wrote several of the chapters in the firm’s book, Looking Ahead: Life, Family, Wealth and Business After 55. His contributions include Chapter 1, “Looking Ahead When Youth Is Behind Us” and Chapter 4, “The Family Business."

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