Protester loses suit against Secret Service

WASHINGTON — The Supreme Court unanimously ruled Monday against a protester who said his freespeech rights had been violated when Secret Service agents arrested him after he made critical remarks about the George W. Bush administration’s war policies.

The case arose from a 2006 visit by Vice President Dick Cheney to a mall in Beaver Creek, Colo. A Secret Service agent assigned to protect the vice president said he heard a man standing nearby say into a cell phone that he planned to ask Cheney “how many kids he’s killed today.” The man, Steven Howards, later approached Cheney and said the administration’s “policies in Iraq are disgusting.”

Howards also touched Cheney on the shoulder. Howards said the gesture was an openhanded pat. Secret Service agents described it as a forceful push. Writing for the court, Justice Clarence Thomas said the dispute over the manner of the touch “does not affect our analysis.”

One agent, Virgil Reichle, later confronted Howards and asked him if he had assaulted the vice president. Howards falsely denied having touched Cheney and said, “If you don’t want other people sharing their opinions, you should have him avoid public places.”

Reichle arrested Howards for assault and turned him over to the local authorities. He was charged with harassment under state law, but those charges were dropped.

Howards sued, saying the arrest had violated his First Amendment rights. A divided three-judge panel of the U.S. Court of Appeals for the 10th Circuit allowed the case to proceed.

Howards’ false statement about not touching Cheney was reason enough to arrest him under the Fourth Amendment, the appeals court said. But it added that his First Amendment rights might have been violated since his remarks could have “substantially motivated” agents to take action against him.

The Supreme Court reversed. Government officials generally have immunity from civil lawsuits unless they violate rights that are “clearly established,” so that an official understands that “what he is doing violates that right,” Justice Clarence Thomas wrote for the court.

“We conclude that, at the time of Howards’ arrest, it was not clearly established that an arrest supported by probable cause could violate the First Amendment.”

Justice Elena Kagan did not participate in the decision, presumably because she had worked on the case as U.S. solicitor general.