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Does Secret Service protection trump speech rights? Supreme Court hears case.

A Colorado man arrested in 2006 after telling Vice President Cheney what he thought of the Iraq war alleges that Secret Service agents retaliated against him for his opinions.

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Howards reportedly told Cheney that his policies in Iraq were “disgusting.” He then reached out and touched the vice president with his open hand.

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Howards later characterized the contact as an open-handed pat. Federal agents put a more sinister cast on the encounter. According to the government’s brief, the contact was a push-off, a slap, a forceful touch, or a “strike that caused the vice president’s shoulder to dip.”

The agents moved to dismiss Howards’ lawsuit, but a federal judge and a federal appeals court have allowed it to move forward.

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.

Mr. Lane said the agents in the Howards case had all the power necessary to protect the vice president. If their motive was purely to protect Cheney from a potential threat, they could have immediately searched Howards’ belongings and frisked him to verify that he was not armed. Beyond that they could have continued to monitor his movements.

Instead, he was confronted, accused of assaulting the vice president, and taken into custody.

Lane says there is disagreement among the agents present during the 2006 encounter about whether Howards’ contact with the vice president was threatening.

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