Sunday, June 10, 2012

Left Side of the Aisle #60 - Part 1

How free is your speech? Supreme Court okays retaliatory arrests

You think you have free speech? Think again: In modern America, you have as much right to criticize your betters as they choose to allow you.

In 2006, "The Big" Dick Cheney was visiting a mall in Colorado. A guy named Steven Howards got in the line to meet Cheney and when he reached the vice president, told him his "policies in Iraq are disgusting." As Cheney moved away, Howards touched him on the shoulder and then turned and walked away.

A Secret Service agent named Gus Reichle followed Howards, accosted him, got into an argument with him, and then - only then - arrested him for assault. The charges were quickly dropped and Howards sued Reichle and another agent for violating his free speech on the grounds of having made a retaliatory arrest - that is, Reichle arrested Howards because Howards gave Cheney grief. The US Court of Appeals for the 10th Circuit ruled in Howards' favor.

On Monday, June 4, the Supreme Court unanimously - yes, which means "including the so-called liberals it was so vitally important to have there" - overturned that decision, letting the agents walk without consequence for their behavior. Justice Clarabell Thomas, writing for the Court, rejected Howards' argument that the "general right to be free from retaliation for one's speech" made what officers did clearly unconstitutional, thereby opening them up to being sued. The justices instead held that the agents were entitled to immunity from such a suit because no federal court had clearly established the "specific right to be free from a retaliatory arrest that is otherwise supported by probable cause."

Let me disentangle that: The Supreme Court found that no federal court has specifically said that managing to come up with some way to arrest someone, some justification for it, doesn't automatically exempt you from a claim you violated that person's constitutional rights. And because no court had said that, the top legal minds of our nation ruled that Secret Service agents could not possibly be expected to understand that arresting Howards just because he criticized "The Big" Dick Cheney was a violation of Howards' rights.

If you're on good terms with a cop, ask them: If they wanted to, could they come up with some superficially reasonable basis to arrest someone, maybe one of those vague catch-alls like disturbing the peace, disorderly conduct, failing to obey a lawful order, or some such? They'll tell you yes. Which means that the practical, real-world, effect of this ruling is that federal agents can punish you for free speech, can arrest you for giving grief to some nearby official, without consequences to themselves.

Three more things about this same case should be noted:

Reichle's lawyer, Sean Gallagher, raised the issue a "free speech zone" in connection with the agents' duties. This is about the idea that the Secret Service can establish a zone, a bubble, around any official they are guarding, inside which free speech ceases to exist. Some of these "zones" have been like a city block in size and people have been arrested simply for carrying a sign inside such a bubble. There was no indication in any news account of this case that this reference raised any eyebrows anywhere in that courtroom. It is now apparently to be taken for granted, to just be assumed, that the Secret Service can, on its own authority, simply wipe away the First Amendment within any perimeter it cares to establish.

A second thing is that Ruth Bader Ginsburg and Stephen Breyer issued a concurring opinion in which they said Secret Service agents are required to "make singularly swift, on the spot, decisions whether the safety of the person they are protecting is in jeopardy." What swift decision? What the hell are they talking about here? Reichle followed Howards, accosted him, got into an argument with him, and only then did he arrest him. What "swift decision" are they talking about? Plus there's the fact that these are Secret Service agents. These are the folks whose job it is to be ready to take the bullet meant for the person they are protecting. These are the people ready to throw their bodies on that person to protect them from the bomb blast. But now we're supposed to think that the possibility of being sued will paralyze them with fear? What the hell?

But here's the worst, saved for last: Some of the Justices had expressed concern that a decision in favor of the agents could block all suits for retaliation filed against law enforcement. Gallagher said he was looking for a narrow decision, applying only to the "special circumstances" of Secret Service agents. But Principal Deputy Solicitor General Sri Srinivasan, arguing before the Court on behalf of the Obama administration in support of the agents (no surprise there), told the Justices that "it also makes sense to apply [officer immunity] in other situations." In other words, it is the declared position of the Obama administration that there should be an across-the-board ban on First Amendment retaliation claims. Not just Secret Service agents, but any cop at any level from federal to local, should be able to retaliate against you by arresting you for exercising your First Amendment rights without fear of consequences to themselves, so long as they can come up with some plausible-sounding reason for the arrest.

Welcome to more of the change you were tricked into believing in.


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