“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,” Thomas wrote in a 12-page decision.
He added: “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.”
The decision 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 decision comes several weeks after the Secret Service was rocked by scandal over agents hiring prostitutes in Colombia while assigned to protect President Obama during an official visit there. The scandal slammed the credibility of the elite protective service at a time when the Cheney “assault” case was pending before the justices.
The high court chose not to decide the broader issue of whether Secret Service agents acting with probable cause are always immune from civil lawsuits claiming they retaliated against a person for making comments the agents considered politically offensive.
Instead, the justices decided only that the law in this area is not clearly established. The Supreme Court said that given the unsettled state of the law the agents were not given fair warning that they might face a civil lawsuit for violating someone’s free speech rights.