Supreme Court sides with Secret Service agents in free-speech case

A Colorado man has lost his bid to sue two Secret Service agents who allegedly had him arrested in retaliation for critical comments he made to then-Vice President Dick Cheney during a public meet and greet event at a local shopping mall.

The man, Steven Howards, filed a lawsuit against the agents, claiming the retaliatory arrest violated his First Amendment free speech right to express an opinion in public without facing punishment from government officials.

The US Supreme Court ruled 8 to 0 on Monday that the two agents are entitled to the protection of qualified immunity from such a lawsuit.

Writing for the court, Justice Clarence Thomas said that the agents who arranged for Howards’s arrest had probable cause to believe a crime had been committed because Howards made a false statement to one of the agents.

Justice Thomas said that given the presence of probable cause to conduct an arrest, any subsequent claim that the arrest was motivated by retaliation based on speech must fail.

“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.

In his lawsuit, Howards charged that Secret Service agents falsely accused him of “assaulting” then-Vice President Cheney during a 2006 public appearance. He said the agents made the assault accusation as a pretext to punish him for expressing his opposition to the Bush administration’s decision to wage war in Iraq.

Federal agents arrested Howards and turned him over to local police for prosecution. The charges were later dropped.

After Howards filed his lawsuit, depositions taken of agents who had been on the scene during Howards’s encounter with Cheney varied widely concerning what actually took place. The Secret Service agent at the center of the encounter, Virgil Reichle, was subsequently transferred to Guam.

The issue in the case, Reichle v. Howards (11-262), was whether Mr. Reichle and a second agent, Dan Doyle, were immune from First Amendment lawsuits as part of their job protecting the president and top government officials.

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