David L. Hudson, Jr.: Qualified immunity protects Secret Service agents

  A recent unanimous decision by the U.S. Supreme Court in favor of two Secret Service agents shows the power of the qualified-immunity doctrine.

  The high court ruled in Wood v. Moss that the agents were entitled to qualified immunity when they moved protesters an additional block further away than supporters of former President George W. Bush were allowed to gather in Jacksonville, Ore., in October 2004.

  The protesters contended that the actions of the agents violated the most fundamental free-speech principle – that the government may not discriminate against different private speakers on the basis of their viewpoints. In other words, government officials generally may not engage in viewpoint discrimination. The protesters said the Secret Service agents evinced such discrimination when they moved them further away from the president than his supporters when he stopped at a local inn to dine.

  While the concept of viewpoint discrimination is important in First Amendment law, the qualified-immunity doctrine trumped it in this context of protecting the president. The qualified-immunity doctrine provides that government officials are not liable unless they violate clearly established constitutional or statutory law of which reasonable officials should be aware.

  Justice Ruth Bader Ginsburg reasoned that it was not clearly established to the Secret Service agents when they had to make an on-the-spot security determination that they had to keep supporters and protesters equidistant from the president.

  Two other principles support the Court’s ruling that granted qualified immunity. The first is the importance of protecting the president and the second is the idea that speakers often don’t get to speak wherever they want. Concerning the president, Justice Ginsburg said his protection was of “overwhelming importance in our constitutional system.

  Regarding the location of speech, she declared that “the fundamental right to speak secured by the First Amendment does not leave people at liberty to publicize their views whenever and however and wherever they please.”

  In a constitutional democracy, government officials must respect the right of dissent. But Secret Service agents are entrusted with a most difficult task – protecting the leader of the Free World. They are entitled to a healthy dose of leeway when they make security-based decisions.

  That explains why the U.S. Supreme Court granted the Secret Service agents immunity.

  About the author: David L. Hudson Jr. is an expert in First Amendment issues who writes for Firstamendmentcenter.org and for other publications.

  This article was published by the First Amendment Center.