On Wednesday, a lawyer for the agents and a lawyer for the Obama administration both urged the Supreme Court to create a broad exemption from First Amendment liability for federal agents.
Under the new rule, federal agents would be immune from a civil lawsuit charging that they had engaged in a retaliatory arrest related to the content of the arrestee’s speech. The immunity would apply whenever the agent could show he or she acted with probable cause to believe a crime had been committed prior to the arrest.
“The issue before the court today is whether Secret Service agents who are prepared to take a bullet for the vice president must also be prepared to take a retaliatory arrest lawsuit, even when they have probable cause to make an arrest,” Sean Gallagher, a Denver, Col., lawyer for the agents, told the court.
Mr. Gallagher said that protective agents must use the speech of surrounding individuals to gauge potential threats. He said if agents knew they were potentially liable for money damages in First Amendment lawsuits, it might make them hesitate at a critical moment.
Deputy Solicitor General Sri Srinivasan told the justices that the rule was necessary because it is difficult to “disentangle a legitimate desire to suppress danger – of which speech is evidence, from an illegitimate desire to suppress a viewpoint.”
“When a Secret Service agent overhears an individual say that he’s going to ask the vice president how many babies he’s killed, it makes all the sense in the world for the Secret Service to focus their attention on that person,” Mr. Srinivasan said.
Howards’ lawyer, David Lane of Denver, urged the high court to reject the special rule and allow the case to proceed to a jury trial. “This is not a significant problem,” he said of a suggested flood of future retaliatory arrest lawsuits tied to free speech claims.