On The Front Lines

In 8-0 Ruling, U.S. Supreme Court Allows Immunity Protections for Secret Service, Law Enforcement to Trump Free Speech Rights of Americans

WASHINGTON, DC — The U.S. Supreme Court has ruled unanimously that two Secret Service agents who violated the First Amendment rights of Steven Howards are immune from prosecution. As the Christian Science Monitor noted, the court’s decision in Reichle “is consistent with a trend at the high court in recent years granting government officials broad immunity from civil lawsuits charging that officials used their government power to violate constitutional rights.” The Rutherford Institute filed an amicus curiae brief with the U.S. Supreme Court in Reichle v. Howards defending the right of Americans to sue law enforcement officials over arrests made in retaliation for unpopular or critical speech. At issue in the case was whether law enforcement officers can be held liable for retaliating against individuals engaging in unpopular or critical speech by arresting them, even when those arrests are made under the pretext that the officers had probable cause to believe the individual had committed an offense—no matter how minor.

The Rutherford Institute’s amicus brief in Reichle v. Howards is available here .

“This decision reflects the judiciary’s extreme deference to government officials in matters of security, even when government officials trounce basic constitutional rights,” said John W. Whitehead, president of The Rutherford Institute. “If Americans are not able to challenge law enforcement officials over retaliatory arrests under the First Amendment, few, if any, checks will remain to deter government officials from employing intimidating tactics designed to chill the exercise of unpopular or critical political speech.”

In June 2006, Steven Howards was at a Colorado shopping mall with his son when he learned that then-Vice President Dick Cheney was at the mall greeting the public. Howards, having decided to approach Cheney and express his opposition to the war in Iraq, made a telephone call in which he was heard to say that he was going to ask Cheney “how many kids he’s killed today.” The Secret Service agent who overheard Howards’ conversation alerted other agents to monitor Howards. Howards eventually approached Cheney and shared his view that Cheney’s policies in Iraq “are disgusting.” When Cheney turned and began to walk away, Howards lightly touched the Vice President’s shoulder. After witnessing this exchange, the Secret Service agents conferred and determined to question Howards further. Agent Gus Reichle confronted Howards and asked him if he had assaulted or touched the Vice President. Howards denied doing so. Reichle then arrested Howards for assaulting the Vice President. Although the assault charges were soon dropped, Howards sued the agents, alleging they had violated his rights under the First Amendment by arresting him in retaliation for his remarks to Cheney. The agents defended the arrest, insisting that because Howards had denied touching the Vice President, they had probable cause to arrest him under a federal statute making it an offense to make a false statement to a federal official. Although the trial court ruled in favor of the Secret Service agents, the U.S. Court of Appeals for the Tenth Circuit reversed the lower court’s ruling. Finding a split among the appellate courts on this issue, the U.S. Supreme Court agreed to hear the case.

In asking the Court to affirm the Tenth Circuit’s ruling, attorneys for The Rutherford Institute had pointed out that, as a practical matter, the prospect of a civil action (lawsuit) for retaliatory arrest is the only deterrent against law enforcement officers who desire to chill expression and intimidate individuals who engage in critical or unpopular speech. However, in writing for the Court, Justice Clarence Thomas noted, “This Court has never recognized a First Amendment right to be free from a retaliatory arrest that is supported by probable cause; nor was such a right otherwise clearly established at the time of Howards’ arrest. Here, the right in question is not a general right to be free from retaliation for one’s speech, but the more specific right to be free from a retaliatory arrest that is otherwise supported by probable cause. This Court has never held that there is such a right.”