A positive Supreme Court term for the First Amendment

By Megan Chester & Brian Palumbo
Newseum Institute’s First Amendment Center

The Roberts Court has proven to be a champion of the First Amendment, ruling in favor of First Amendment protections in the majority of 10 First Amendment cases before the U.S. Supreme Court during the term that began in October 2013 and ended in June. Yet, increasingly narrow holdings and exceptions for national security purposes, and a continuation of decisions supporting certain First Amendment rights for corporations, lead some observers to question in what direction the  Court’s First Amendment jurisprudence will go.

Two First Amendment cases in which the Court denied certiorari (declined to review the lower court decision) are also included in this abbreviated summary.  Cases are arranged  by freedom – Religion, Speech, Press, Assembly, Petition – in the order that they were argued, and separated between cases decided and cases in which review was denied.


Town of Greece v. Galloway
In a 5-4 decision, the Court championed freedom of religion. Consistent withMarsh v. Chambers, the Court held that the Town of Greece did not violate the establishment clause in opening town board meetings with legislative prayer. The establishment clause prevents Congress from establishing a religion.

The situation arose because the town meetings were predominantly opened by Christian prayer. The Court looked at the history of legislative prayer in Congress and state legislatures to determine whether this upstate New York town of 94,000 people acted unconstitutionally by failing to actively seek out clergymen of a wide variety of religions.

Susan Galloway and Linda Stephens, the challengers, noted that from 1999 to 2007 all opening prayers were from the Christian faith. They requested that the town be limited to “‘inclusive and ecumenical’ prayers that referred only to a ‘generic God’ and would not associate the government with any one faith or belief.” Galloway and Stephens argued that while the town’s citizens may be largely of the Christian faith, a portion of its population practiced other faiths in the neighboring city of Rochester. Thus, they argued, the town should not limit its pool of clergymen to Greece alone, but allow the search to extend beyond its borders, encompassing places of worship in neighboring towns.

The Court, in rejecting Galloway and Stephens’ reservations, cited the holding of Marsh v. Chambers, which held that “legislative prayer, while religious in nature, has long been understood as compatible with the Establishment Clause.” The Court further noted that legislative prayer has been practiced by Congress since the framing of the Constitution and, thus, was not meant to be rejected by the establishment clause.

Galloway and Stephens counter-argued that, while legislative prayer at the Congressional or even state legislative levels may be acceptable, the nature of a town board meeting is different. For example, they asserted that at a town hall meeting legislators are not kept separate from the citizens they serve, but are rather confronted by them. Moreover, the challengers noted that in the case of the Town of Greece, the clergymen who spoke directed their prayers towards the citizens in attendance and not the legislators.

The Court found the injunction sought by Galloway and Stephens would force “legislatures that sponsor prayers and the courts that are asked to decide these cases to act as supervisors and censors of religious speech, a rule that would involve government in religious matters to a far greater degree than is the case under the town’s current practice of neither editing or approving prayers in advance nor criticizing their content after the fact.”

Furthermore, the Court determined that there was no evidence that the Town of Greece utilized the prayer to “proselytize or advance any one, or to disparage any other, faith or belief,” because it made a good faith effort to recruit clergymen in general, despite the lack of variety in actual prayer.

Justice Thomas, joined by Justice Scalia, wrote in a concurrence that they viewed the establishment clause as a federalism provision, as discussed in Elk Grove Unified School District v. Newdow. Justice Thomas and Scalia believe that “the text and history of the Clause ‘resist incorporation’ against the States,” meaning that the establishment clause applies solely to the federal government and not state governments or municipal actions.

Justice Breyer dissented, stating that the town failed to make reasonable efforts to be inclusive and, thus, “by doing too little to reflect the religious diversity of its citizens, did too much, even if unintentionally, to promote the ‘political division along religious lines’ that ‘was one of the principal evils against which the First Amendment was intended to protect.’”

Justice Kagan, joined by Justices Ginsburg, Breyer, and Sotomayor, also dissented, stressing the distinction that ordinary citizens are participants in the town board meetings of Greece, and that in failing to be inclusive, the “prayer practices violate that norm of religious equality – the breathtakingly generous constitutional idea that our public institutions belong no less to the Buddhist or Hindu than to the Methodist or Episcopalian.”By placing an emphasis on “good faith efforts” rather than existing standards, the majority may well encourage similar activity by other smaller municipalities which do not include within their own boundaries a diverse religious community.

Burwell v. Hobby Lobby Stores and Conestoga Wood Specialties Corp. v. Burwell
Two companies, Hobby Lobby Inc. and Conestoga Wood Specialties, separately brought suit under the Religious Freedom Restoration Act (RFRA) and free-exercise clause of the First Amendment. They sought relief from the Affordable Care Act mandate to provide coverage of certain contraceptive procedures for company employees.

The free-exercise clause is, of course, the section from which America’s well-known freedom of religion is derived. RFRA is closely related to the free-exercise clause. RFRA was enacted to prevent Congress from creating laws that would “substantially burden” a person’s free exercise of religion. Hobby Lobby Inc. and Conestoga Wood Specialties are closely held family businesses that are deeply religious and believe it is immoral to abort a fertilized embryo. Further, the companies presume that certain contraceptive procedures mandated by ACA take effect after an egg has been fertilized.  Given this situation, the corporations challenged ACA mandate that required their companies to cover the aforementioned procedures.  The families believed they had the right under the Constitution to align their businesses practices with their religious beliefs, and should be able to deny coverage of certain contraceptive procedures.

The courts split over the two cases. On the same day in November 2013, the Supreme Court consolidated and granted certiorari for both the Hobby Lobby and Conestoga cases to determine whether corporations had certain religious liberty rights.

Justice Samuel Alito wrote for the majority in holding that closely held corporations are in fact “persons” under RFRA and can thus exercise religion under the act. Alito loosely defined closely held corporations as corporations that are not publicly traded and are likely family-owned.

Since these closely held corporations fall under the scope of RFRA, Justice Alito said that ACA is prohibited from “substantially burden[ing]” the company’s exercise of religion. Further, he said the company’s refusal to pay for certain contraceptives is a proper exercise of religious freedom.  Alito also noted that companies would pay a substantial fine if they refused to pay for all contraceptives. Justice Alito recognized the government’s interest in making all contraceptive health care available, but he concluded that this interest does not outweigh the closely held corporations’ rights to practice religion.

While Justice Breyer emphatically asserted how narrow the majority’s opinion had been, Justice Ginsburg disagreed, saying it was “a decision of startling breadth … .” Justice Ginsburg said the decision will give corporations an opportunity to avoid any law they found “incompatible” with their religious beliefs. She challenged Justice Breyer’s comparison of non-profit church organizations to for-profit “closely held” corporations. She noted that all members of a church organization likely have the same belief system, while there might be employees of Hobby Lobby who will be denied coverage of certain contraceptives even though they do not share the same beliefs of the owners of Hobby Lobby. Finally, she pondered how far the exemption the majority established would go, and how it could be perceived as a preference of religion. She also said the majority had led the Court into a “minefield” it did not have to enter.   For example, certain people have religious beliefs that forbid blood transfusions, and other more common medical procedures … will court exempt them as well?

What’s the impact on the First Amendment?  Corporations now have certain religious-liberty rights. The Court has broadened the scope of the First Amendment, and – as Justice Ginsburg warned – may invite other companies to challenge provisions of ACA beyond contraception.

McCutcheon v. Federal Election Commission
In 1971, Congress enacted the Federal Election Campaign Act (FECA). It began Congress’ attempt to regulate the political contributions of citizens throughout the election process. A major section of this act limited the amount a person can contribute to a single candidate to $2,600 for one election cycle. Further, the Act proclaimed that the aggregate amount a citizen could contribute in one year was $30,900 and the aggregate total for a two year period was $46,200.

Shawn McCutcheon of Georgia wanted to contribute the maximum amount of $2,600 to several political candidates and to the Republican National Committee. McCutcheon, however, was prohibited under FECA from donating more than $48,600 to any political campaign or committee. In response to this prohibition, McCutcheon brought suit claiming the FECA’s limitation on campaign contributions was a violation of his first amendment rights. Several political committees also joined with McCutcheon. The District Court for the District of Columbia held that the contribution limits were reasonable.

McCutcheon was able to appeal directly to the Supreme Court because of a provision in the Bipartisan Campaign Reform Act.

Five justices sided with McCutcheon. Writing for four members of the plurality, Chief Justice Roberts said, “[contributing] money to a candidate is an exercise of an individual’s right to participate in the electoral process through both political expression and political association.” Roberts’s characterization of political contributions included both the freedom of speech and freedom of assembly. He said that, to limit the number of candidates a person, could contribute to what was a direct infringement on these rights. “To require one person to contribute at lower levels because he wants to support more candidates or causes is to penalize that individual for robustly [exercising]’ his First Amendment rights.” By shaping the issue this way, the chief justice focused not on the public good of campaign limitations, but, rather, on the individual.  And in his view, the government has no right to restrict a person from engaging in the freedom of political speech.

Accordingly, he held that while the base limit of $2,600 remains intact, a person may contribute to any number of political candidates, with no aggregate limitation. Justice Thomas, the fifth member of the plurality, concurred with Justice Roberts’s opinion, but said the base limit of $2,600 should be abandoned.

Justice Breyer, joined by Justices Ginsburg, Kagan, and Sotomayor, said the opinion, combined with the Citizens United opinion from several years ago, “eviscerated” campaign-finance laws. Further, Justice Breyer claimed loosening this grip on campaign finance will now allow for money to have even greater influence on the outcome of political elections.

Where does this leave the First Amendment?  For those who interpret campaign contribution as a type of speech or membership in a political committee as a form of assembly, this is a major victory for the First Amendment. Roberts has again championed the First Amendment. For those who do not consider contribution limitations as an infringement of rights, this opinion clears a wide avenue for large donors to have a greater role in elections.

Air Wisconsin Airlines Corp. v. Hoeper
William Hoeper was employed by Air Wisconsin Airlines as a pilot from the late 1990s to the mid 2000s. Air Wisconsin began to phase out and then eventually discontinued the type of plane Hoeper flew and for which he was certified to fly.  Hoeper had four opportunities to pass a flying test and become certified for the airline’s new aircrafts. When his fourth attempt failed, Hoeper became visibly angry. The flight administrator, also an airline employee, told a manager at Air Wisconsin of Hoeper’s behavior. They discussed whether they should notify the Transportation Security Administration of Hoeper’s behavior because (1) Hoeper was a federal flight deck officer, which meant he could carry a gun onto a plane, and (2) Hoeper was upset and about to board a flight returning home expecting to be fired. The manager, Patrick Doyle, chose to inform TSA that Hoeper might be a threat to other passengers because he might be carrying his gun on board the plane. While still on the ground, the taxiing flight was stopped and TSA officials boarded the plane and removed Hoeper. He was questioned and released. Hoeper subsequently sued Air Wisconsin for defamation.

A Denver jury decided in favor of Hoeper’s claim, deciding that the Air Wisconsin statements had been made with reckless disregard for the truth. The Aviation and Transportation Security Act (ATSA) and subsequent court ruling determined when an official should be subject to civil suit, and provided that public employees such as air traffic controllers cannot recover “for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with ‘actual malice’ — that is, with knowledge that it was false or with reckless disregard of whether it was false or not.”

Justice Sotomayor held that Air Wisconsin did not violate ATSA because the statements warning TSA of Hoeper’s behavior were not materially false. Justice Scalia concurred and dissented in part. Along with Justice Thomas and Kagan, he said the question of material falsity should be determined by the jury in the lower courts and not the Supreme Court.

Does this holding affect the First Amendment? The majority opinion only mentions the First Amendment once in its entire holding, and it is only in reference to a historical detail — that the ATSA standard is derived from a prior First Amendment holding. First amendment supporters feared there would be First Amendment implications if the court ruled for Hoeper despite the reasonableness of the Air Wisconsin reports to TSA. The decision is not likely to have significant impact on future cases involving claims of defamation or modern First Amendment cases.

McCullen v. Coakley
In a unanimous decision, the Court firmly upheld speech rights in traditional public fora by finding that a Massachusetts law categorically banning speech within 35 feet of any entrance to abortion providing health facilities violates the First Amendment.

Massachusetts state officials claimed the larger buffer zone was necessary because a previous six-foot buffer zone was “unenforceable.” The existing law being challenged exempted people entering and leaving the facilities, employees, other personnel such as police and firefighters, and people just using the area to reach another destination from prosecution. This new buffer zone, which on first violation provided for a possible fine of up to $500, up to three months in jail, or both, included about 100 feet of public sidewalk – which critics of the law noted is a traditional free speech area – and portions of a public street.

The Court did note that Massachusetts had a legitimate government interest in protecting the individuals attempting to use the facilities and maintaining the facilities’ ability to operate. However, the Court pointed out that Massachusetts failed to produce any evidence that there were actual problems with the protesters at the locations in Boston, Worcester, and Springfield, other than on Saturday mornings at one Boston location. Moreover, the Court stated that it would be possible for police to identify violent protesters who blocked the entryways to such facilities and peaceful attempts to speak to those entering or leaving the facilities.

As a result, the Court struck down the Massachusetts law saying it restricted free-speech rights more than was necessary by including the peaceful, “sidewalk counseling” of the petitioners.

The law’s challengers also argued that it discriminated against abortion-related speech because the buffer zones effectively limited the speech of anti-abortion demonstrators, while permitting clinic employees to speak freely to people in the buffer zones. Thus, they argued that the law was unconstitutional because it was not content neutral and was not the least restrictive means of achieving a compelling state interest, in this case safety of visitors to the clinics.

Justice Scalia, joined by Justices Kennedy and Thomas, concurred in the judgment but noted that they disagreed with the Court’s holding that the law was content-neutral. Justice Alito also concurred in the judgment, noting that he, too, believed that the law discriminated on the basis of viewpoint.

The Court did not rule out the use of buffer zones at the Massachusetts clinics, leaving the door open to the establishment of an unspecified smaller zone aimed at protecting clinic clients from harassment or violence, but also permit demonstrators to speak to the visitors without shouting.

The Court noted that there could be other ways of tailoring the law that would make it permissible. In a similar vein, the Court failed to mention Hill v. Colorado, a Supreme Court holding that found an eight-foot buffer zone permissible.  This is relevant because Massachusetts had based the legality of its buffer zone law on the Hill decision. In failing to either differentiate betweenMcCullen and Hill or simply overturn Hill, the Supreme Court left unsettled its ultimate view on proper ways to restrict speech in zones of traditional public fora.

Lane v. Franks
In holding that the First Amendment protects public employees who provide subpoena-compelled truthful sworn testimony outside of the course of their ordinary job responsibilities, the Supreme Court reiterated that citizens do not surrender their First Amendment rights by accepting public employment. In 2006, Edward Lane was hired by Central Alabama Community College to be the Director of Community Intensive Training for Youth (CITY), a statewide program for underprivileged youth.  As part of this position, Lane fired Suzanne Schmitz, an Alabama state representative, who Lane had determined was being paid by the organization despite the fact that she was not completing her duties. Schmitz vowed to get back at Lane for his actions, according to court records.

The FBI then looked into Schmitz’s employment with CITY. Eventually they opened a formal investigation which led to Lane testifying before a federal grand jury regarding his reasons for firing the representative. Schmitz was later indicted on four counts of mail fraud, four counts of theft concerning a program receiving federal funds, under the suspicion that she had collected close to $200,000 in federal funds despite the fact that she had rarely even appeared at work at the CITY program offices.

CITY continued to have financial difficulties, leading to Lane’s suggestion of more dismissals from the organization.  This resulted in 29 probationary employees, including Lane, being fired. However, all but Lane and one other person were shortly thereafter returned to their positions.

These events prompted Lane to sue Franks, his supervisor, claiming Franks had fired him in retaliation for his testimony against Schmitz.

The Court’s decision upheld an earlier decision, Pickering v. Board of Education of Township High School District 205, Will City, in determining whether the employee’s interest or government interest should prevail.

The Court first looked at whether Lane’s testimony was speech as a citizen or an employee. As Lane’s ordinary job duties did not include providing testimony in court proceedings, the Court determined that the subpoenaed testimony was that of a citizen, rather than testimony given in an official capacity. Thus, the Court held that testimony under oath by a public employee is protected as citizen speech by the First Amendment when it falls outside the scope of the employee’s duties, even if they are related.

The Court pointed out that sworn testimony is a clear example of speech that should be protected because “anyone who testifies in court bears an obligation, to the court and society at large, to tell the truth.”

The Court then considered whether the government, represented by Franks, had any interest in preventing this speech. The court found that the government “do[es] not assert and cannot demonstrate any government interest that tips the balance in their favor.”  Therefore, the Court determined that Lane’s testimony constituted protected speech under the First Amendment.

Justice Thomas, joined by Justices Scalia and Alito, concurred in the judgment, noting that the issue was “whether the speech at issue is itself ordinarily within the scope of an employee’s duties, not whether it merely concerns those duties.”

While no cases were heard on freedom of the press during this term, the Court did refuse to review two lower court rulings in significant cases — Risen v. United States and Holmes v. Winter.

Risen v. United States
James Risen was subpoenaed on May 23, 2011, so that the U.S. District Court for the Eastern District of Virginia could compel him to identify his source for information about a classified CIA operation he discussed at length in his book,State of War: The Secret History of the CIA and the Bush Administration.

Jeffrey Sterling, a former CIA agent, was indicted in 2010 for leaking information on Operation Merlin, a “failed attempt by the CIA to have a Russian scientist provide flawed nuclear weapons blueprints to Iran.” While writing for The New York Times, Risen met with Sterling on several occasions. Risen has argued that he cannot be forced to testify because he is protected by the First Amendment and a federal common-law reporters’ privilege.

A district court agreed with Risen, but the 4th U.S. Circuit Court of Appeals disagreed, holding that no First Amendment testimonial privilege exists in cases of “criminal proceedings about criminal conduct that the reporter personally witnessed or participated in.”

The Supreme Court denied Risen’s petition to review the appellate decision, and the reporter faces potential jail time or fines if he continues to refuse to identify his source.  Moreover, in denying the review, the Supreme Court made clear that, at least in matters of national security, it will not review the 1972 decision in Branzburg v. Hayes, which held that journalists do not have a right to refuse to identify confidential sources in federal court.

It is unclear what’s next for Risen. Attorney General Eric Holder, according to multiple news sources, said that no journalist would be prosecuted or go to jail for “performing ordinary news gathering activities.”

However, that does not exclude sizeable daily fines, which have been used by judges in other attempts to force journalists to comply with court orders to reveal sources.

Holmes v. Winter
James Holmes allegedly took part in the July 20, 2012, Aurora, Colo., mass shooting, for which he is charged with multiple counts for murder and other offenses.

Reportedly, a notebook that Holmes mailed to a psychiatrist before the shooting was confiscated by police. All parties were precluded from revealing information concerning the notebook and its contents; however, Jana Winter, a reporter for Fox News, managed to publish an article detailing the contents of the notebook. She also revealed that her sources for this information were two law enforcement personnel.

Subsequently, Holmes and his attorneys began the process of compelling Winter to testify in Colorado as to her sources.  Winter is a reporter based in New York; thus, the proceedings began there.

Winter claimed that she was protected by New York State shield laws and thus could not be forced to testify despite the fact that Colorado’s shield laws were less encompassing. The Court of Appeals of New York determined that Jana Winter could not be forced to testify as to her sources.

The Supreme Court denied certiorari. Accordingly, the Court of Appeals of New York’s holding stands.

By denying certiorari, the Supreme Court essentially decided that journalists are protected from compelled testimony by the shield laws of their states against actions brought in other states, in addition to their own. Thus, the Supreme Court greatly expanded the state-granted privileges of reporters.


Harris v. Quinn
In Illinois, Medicaid recipients are permitted, under the Illinois Home Services Program, to hire a doctor-approved personal assistant (PA) to provide medical care in light of institutional care. Obviously, the Medicaid recipient and his or her personal assistant discuss the parameters of the personal assistant’s work. This includes hours, services, and other day to day activities the recipient would require. The State of Illinois compensates the personal assistant for his or her services.  Given this circumstance, the personal assistant has a unique employee-employer relationship.

The Illinois Legislature established the State of Illinois as employer of the PAs to allow the PAs to join a union and enter in a collective bargaining agreement. The legislature designated a union for the PAs to join. The assigned union required all PAs employed by the state in the Illinois Home Services Program to pay union fees. Several PAs did not join the union, yet were required to pay a fee to cover certain services provided by the union. The PAs then brought suit against the Union asserting their First Amendment right of assembly had been violated since they had been required to pay union dues for a union which they did not want to join.

Many years earlier, in Abood v. Detroit Board of Education, the Supreme Court held that all public employees, including members and nonmembers of the relevant work union, must pay fees to the union that participates in collective bargaining and negotiates on their behalf. Both parties knew the application ofAbood would dictate the outcome of this case.

Relying on the Supreme Court ruling in Abood, the 7th U.S. Circuit Court of Appeals held that it was constitutional for the union to require its members to pay union fees, even if they did not want to be part of the union.

Reversing the holding from the 7th Circuit, the Supreme Court held that theAbood holding does not apply to the case at hand. Justice Alito wrote thatAbood applied to full public employees, whereas the PAs from Harris were only pseudo-public employees. He reasoned that, since the PAs were not full public employees and their salary was enacted by statute, they derived no real benefit from the union, and should not be required to pay. The Court held that requiring partial-public employees to pay union fees is a violation of an employee’s First Amendment right of association.

Justice Kagan challenged both Justice Alito’s criticisms of Abood, and his distinction between Abood and the PA case. She wrote that the application ofAbood to Harris was simple. In her view, the employees in both cases were public employees and should thus be subject to paying the fees of the union to prevent free-ridership.

Where does this leave the First Amendment? On the surface, the First Amendment won. The PAs will be able to choose whether they participate in a union with few repercussions. They certainly have freedom. Further, the majority would argue that, despite its criticisms of Abood, this holding only applies to employees who are not completely “public.” Yet, dissenters warn of greater harm to unions down the road. Abood gave unions the power to unite and have real bargaining power. The dissenters say the interest of the unions outweighs the right of association provided by the First Amendment.


U.S. v. Apel
The Supreme Court, in a unanimous decision, determined that a federal statute that makes it illegal to re-enter a military installation after having been ordered not to do so “by an officer or person in command” was applicable, although the Court fell short of determining whether it violated the petitioner’s First Amendment rights.

John Apel reentered a designated protest area on Vandenberg Air Force Base in central California, a closed base with an easement for a public road that runs through it.

Apel was ordered not to return to the protest area after failing to adhere to the publicly advised rules that dictate that “demonstrations must be coordinated and scheduled with Base Public Affairs and Base Security Forces at least two weeks in advance, anyone failing to vacate installation property upon advisement from Security Forces will be cited for trespass … and [that] activities other than peaceful protests in this area are not permitted and are specifically prohibited.”

He was barred from the base in March 2003, for three years, only to return in May 2007, in which he trespassed again, causing him to be barred from the barred permanently from returning unless he were to follow procedures to change this sentence. However, Apel continued to ignore the protocols and re-entered the base on several occasions in 2008, 2009, and 2010, during all of which he ignored the rules and guidelines set out by the base. This ultimately caused his conviction for violating a federal statute.

The Court was asked to look at whether the Air Force had the necessary control over the base for Apel to be required to adhere to the commanding officer’s demands. Apel noted that the protest zone, which Apel entered on numerous occasions, was not behind the gates to the base, but rather, was located on the public way easement that the Air Force had granted to the government and that exclusive control was necessary for the federal statute to take hold.

In determining whether the Air Force had exclusive control, the Court noted that the statute is written broadly to apply to different kinds of military properties, which it did not define in terms of the nature of the possession of the property or the ability of civilians to enter the premises.

The Court then turned to other federal law, such as the federal statute discussed in U.S. v. Phisterer, to demonstrate that exclusivity is not required, but rather, what is important is that the place is “more or less closely connected” with military activities.

The Court determined that the Air Force clearly maintained control, even over the public way and protest area, and thus, the federal statute is applicable in this case.

Justice Ginsburg concurred in the judgment of this case; however, she emphasized that “a key inquiry remains, for the fence, checkpoint, and painted line, while they do not alter the Base boundaries, may alter the First Amendment calculus.”  She continued, citing United States v. Grace, that the government’s ability to permissibly restrict expressive conduct is very limited in either traditional or designated public fora. Justice Ginsburg then stated that, “as the Air Force has exhibited no ‘special interest in who walks or talks’ in these places, it is questionable whether Apel’s ouster from the protest area can withstand constitutional review.”

Justice Alito, on the other hand, concurred in the judgment as well, writing specifically to note that the Supreme Court’s failure to address the constitutionality question does not mean that it agrees or disagrees with the statements of Justice Ginsburg.

Wood v. Moss
In 2004, then-President George W. Bush visited Jacksonville, Ore., during his reelection campaign. Word spread he would appear, resulting in two groups organizing near the president’s anticipated location to respectively support and protest the president’s re-election campaign. However, the president had a last-second itinerary change. The two groups responded and moved closer to the new destination. Before Bush arrived, the Secret Service determined that the new area where the protesters had begun to demonstrate was within “weapons range” of the president, and asked the protesters to relocate. The pro-Bush demonstrators were not asked to move. The protesters claimed the Secret Service had engaged in viewpoint discrimination by only coercing the anti-Bush group to end their demonstration and brought suit against two Secret Service agents. They claimed the agents violated their First Amendment right to petition and unconstitutionally prohibited them from conducting a peaceful protest in view of the president.

In the initial trial, the Secret Service agents asserted they should receive qualified immunity because they were public officials acting within the scope of their duty. That position was rejected by the original trial court, a decision later upheld by the 9th U.S. Circuit Court of Appeals. In a unanimous decision, the justices reversed the 9th Circuit opinion.

In holding that the Secret Service agents were entitled to qualified immunity, the Court performed a “reasonableness” inquiry regarding the agents’ conduct at that moment. The Court concluded that the agents acted to ensure the safety of the President, not to shield him from protesters who disagreed with his policy.

Does this affect the First Amendment? Considering the unanimous decision of the Court, it is difficult to conclude whether this is a loss or simply a neutral holding for the First Amendment. As the other summaries in our small anthology indicate, the Roberts Court has had little hesitancy in consistently broadening the scope of the First Amendment. However, here the Court does not make a general statement concerning the freedom of petition in the future. Rather, the decision only focuses on the behavior of the Secret Service officers as agents of the government who fall under the scope of qualified immunity.

As a result, the decision, in a First Amendment context, falls closer to the “neutral” side of the scale than to the “loss” side.

This summary of First Amendment decisions by the U.S. Supreme Court in its 2013-2014 term was prepared by Newseum Institute interns Megan Chester and Brian Palumbo, who attend Columbus School of Law at The Catholic University of America, in Washington, D.C. Editor: Gene Policinski, Newseum Institute.

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