Supreme Court Hears Argument in Case Alleging Bush Protestors Were Treated Less Favorably than Supporters by Secret Service

The Supreme Court heard oral arguments today in Wood v. Moss, a case brought by the American Civil Liberties Union on behalf of a multi-generational group of peaceful protestors, who were forcibly moved on orders of the Secret Service to a place where their protests could no longer be seen or heard by President George W. Bush. The protest took place during a visit to Jacksonville, Oregon, in 2004. Demonstrators supporting the president were allowed to remain much closer to him.

The lawsuit claims that the protestors were targeted because of their political views, in violation of their free speech rights.

"The Secret Service does not have immunity from the First Amendment," said Steven M. Wilker, a lawyer with Tonkon Torp LLP in Portland who argued the case as a cooperating attorney for the ACLU.

The plaintiffs supported their claim of viewpoint discrimination by alleging that they were treated less favorably that Bush supporters, that the decision to move them was not made until after the president sat down to dinner and could hear their chants, and was consistent with at least 12 similar incidents during the first Bush administration. In addition, the decision was also consistent with the Bush White House Advance Manual, which instructed the president's staff to "work with the Secret Service" to ensure that protestors were kept far away from the president's view and hearing.

Nevertheless, the Justice Department has asked the Supreme Court to dismiss the case on the ground that plaintiffs' claim of viewpoint discrimination is "implausible." The defendants also argue that Secret Service agents could not have been expected to know in 2004 that their actions in this case violated the First Amendment even if the plaintiffs' allegations are accepted as true.

Both arguments were rejected by the U.S. Court of Appeals for the Ninth Circuit in a 2012 ruling.

"The job of the Secret Service is to shield the president from danger, not from criticism," said Steven R. Shapiro, the national legal director of the ACLU.

The initial complaint in this case was filed in 2006 and there have been two appeals of lower court decisions to deny the federal government's motions to dismiss the case. If the plaintiffs prevail in the Supreme Court, the case will finally proceed to discovery and trial.

"The right to engage in peaceful political protest lies at the very heart of the First Amendment," said David Fidanque, executive director of the ACLU of Oregon. "The government essentially is arguing that the courts should trust the Secret Service agents based on faith, rather than evidence. Our clients are entitled to have the case go forward so that they can finally have their day in court."