It is not often US Supreme Court justices have occasion to consider the logistics of being within grenade-tossing distance of the president of the United States.
But that became a main point of discussion during oral argument at the high court on Wednesday in a case testing whether Secret Service agents can be held personally responsible for allegedly violating the free speech rights of more than 200 would-be presidential protesters.
The issue arises in a lawsuit filed by the American Civil Liberties Union on behalf of a group of demonstrators who sought to confront then-President George W. Bush during a visit to Jacksonville, Ore., in 2004.
The protesters wanted to express their displeasure with Mr. Bush, but they say federal agents ordered them to move farther away from the president because of the anti-Bush nature of their intended message. The relocation placed them farther from Bush than a group of the president’s supporters that had also staked out a position nearby in Jacksonville.
In their suit, the protesters charge unconstitutional viewpoint discrimination by Secret Service agents. They say such behavior was consistent with a pattern in the Bush White House of suppressing dissent at presidential appearances. The suit says there were as many as 12 other instances of Secret Service agents muzzling anti-Bush demonstrations.
The government moved to dismiss the case, but a federal appeals court upheld the litigation.
On Wednesday, the case arrived at the Supreme Court to a chilly reception from the justices.
During an hour-long argument session, several justices appeared to readily agree with a government lawyer who said the Secret Service agents took action to move the protesters as a result of valid security concerns.
“I think it is important in this context to remember that what we have are Secret Service agents who are making on-the-spot judgments while protecting high-level officials,” Deputy Solicitor General Ian Gershengorn told the justices.
Steven Wilker, a Portland, Ore., lawyer arguing on behalf of the ACLU, said the federal agents were not concerned with potential security threats. He said they ordered the protesters to be relocated solely because of the nature of the protesters' anti-Bush message.
Initially, the protesters were located on the sidewalk at the entrance to an alley that passed beside a patio restaurant where the president was dining. The government maintains that the outdoor restaurant and proximity to the protesters created a valid security issue for the Secret Service, justifying the order to move the protesters back.
Justice Ruth Bader Ginsburg put the question directly to Mr. Wilker. “Would you say that you would have no tenable case if they moved [the protesters] just the one street over so they wouldn’t be in a position to throw a hand grenade to the patio,” she asked.
Wilker responded that it would make it a more difficult case for the plaintiffs to win.
Justice Elena Kagan asked Wilker if he conceded that in hindsight the agents had an objective security rationale for moving the protesters. That rationale: “They are standing at the foot of the alleyway, [and] that you could throw a grenade into the patio area.”
Wilker said the entrance to the alleyway was blocked by police in riot gear and that the more simple solution would have been to move the protesters “slightly to the east or west where they had buildings between them and the president.”
Later in the argument, Wilker made a more direct concession. “Could there be a security interest? Yes, there could hypothetically be one,” he said. “Was there one? We say there was not.”
In his rebuttal argument, Deputy Solicitor General Gershengorn told the justices that agents protecting the president must engage in rapid decisionmaking and should not be second-guessed without clear evidence that they weren’t responding to a perceived security issue.
“The concession that in hindsight there may have been a valid security rationale ends this case,” he said. “If it was true in hindsight, it was certainly true at the time of the kind of rapid decisionmaking that was called for.”
Gershengorn added: “I think at that point the case is over in our favor.”
During Bush’s brief visit to Jacksonville, the president ate a meal at the outdoor restaurant and then proceeded by motorcade to his lodging for the night.
The itinerary allowed for two possible opportunities for supporters and protesters to communicate their messages to Bush. One was during his meal at the outdoor patio. The second was to be positioned along the expected motorcade route.
The Secret Service prevented any access to the patio restaurant, and after moving the protesters, only the pro-Bush demonstrators had access to the motorcade route.
The Secret Service is charged with protecting the president from threats – including the very real possibility of assassination and terror attacks. But the Secret Service is not charged with surrounding the nation’s chief executive in an artificial bubble of praise and adulation, while protecting him from members of the public who might be prone to express criticism or disagreement.
The problem with a case that pits the security of the president against free speech rights of protesters is that the Supreme Court has a history of siding with federal agents in such matters. The danger is that if the line is drawn too brightly, an agent may hesitate at exactly the wrong moment.
It is not the only issue, however.
“Everyone understands the importance of guarding the president in this country,” Justice Stephen Breyer said at one point during the argument. “Everyone understands the danger. You can’t run a risk,” he said.
“At the same time, no one wants a Praetorian Guard that is above the law, and we have examples in history of what happens when you do that,” Breyer said. “So everyone is looking for some kind of line that permits the protection but denies the Praetorian Guard.”
The case is Wood v. Moss (13-115). A decision is expected by late June.