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Opinions

Majority Opinion Author

Ruth Ginsburg

SUPREME COURT OF THE UNITED STATES

Syllabus

WOOD et al. v. MOSS et al.

certiorari to the united states court of appeals for the ninth circuit

No. 13鈥115.鈥傾rgued March 26, 2014鈥擠ecided May 27, 2014

While campaigning for a second term, President George W. Bush was scheduled to spend the night at a Jacksonville, Oregon, cottage. Local law enforcement officials permitted a group of Bush supporters and a group of protesters to assemble on opposite sides of a street along the President鈥檚 motorcade route. When the President made a last-minute decision to have dinner at the outdoor patio area of the Jacksonville Inn鈥檚 restaurant before resuming the drive to the cottage, the protesters moved to an area in front of the Inn, which placed them within weapons range of the President. The supporters remained in their original location, where a two-story building blocked sight of, and weapons access to, the patio. At the direction of two Secret Service agents responsible for the President鈥檚 security, petitioners here (the agents), local police cleared the area where the protesters had gathered, eventually moving them two blocks away to a street beyond weapons reach of the President. The agents did not require the guests already inside the Inn to leave, stay clear of the patio, or go through a security screening. After the President dined, his motorcade passed the supporters, but the protesters, now two blocks from the motorcade鈥檚 route, were beyond his sight and hearing.

The protesters sued the agents for damages, alleging that the agents engaged in viewpoint discrimination in violation of the First Amendment when they moved the protesters away from the Inn but allowed the supporters to remain in their original location. The District Court denied the agents鈥 motion to dismiss the suit for failure to state a claim and on qualified immunity grounds, but on interlocutory appeal, the Ninth Circuit reversed. The court held that the protesters had failed to state a First Amendment claim under the plead-ing standards of Bell Atlantic Corp. v. Twombly, 550 U.S. 544, and Ashcroft v. Iqbal, 556 U.S. 662. Because those decisions were rendered after the protesters commenced suit, the Court of Appeals granted leave to amend the complaint. On remand, the protesters supplemented the complaint with allegations that the agents acted pursuant to an unwritten Secret Service policy of working with the Bush White House to inhibit the expression of disfavored views at presidential appearances. The District Court denied the agents鈥 renewed motion to dismiss. This time, the Ninth Circuit affirmed, concluding that viewpoint-driven conduct on the agents鈥 part could be inferred from the absence of a legitimate security rationale for the different treatment accorded the two groups of demonstrators. The Court of Appeals further held that the agents were not entitled to qualified immunity because this Court鈥檚 precedent made clear that the Government may not regulate speech based on its content.

Held: The agents are entitled to qualified immunity. Pp. 11鈥18.

(a) Government officials may not exclude from public places persons engaged in peaceful expressive activity solely because the government actor fears, dislikes, or disagrees with the views expressed. See, e.g., Police Dept. of Chicago v. Mosley, , 96. The fundamental right to speak, however, does not leave people at liberty to publicize their views 鈥 鈥榳henever and however and wherever they please.鈥 鈥 United States v. Grace, 461 U.S. 171, 177. In deciding whether the protesters have alleged violation of a clearly established First Amendment right, this Court assumes without deciding that Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, which involved alleged Fourth Amendment violations, extends to First Amendment claims, see, e.g., Iqbal, 556 U. S., at 675.

The doctrine of qualified immunity protects government officials from liability for civil damages 鈥渦nless a plaintiff pleads facts showing (1) that the official violated a statutory or constitutional right, and (2) that the right was 鈥榗learly established鈥 at the time of the challenged conduct.鈥 Ashcroft v. al-Kidd, 563 U. S. ___, ___. The 鈥渄ispositive inquiry . . . is whether it would [have been] clear to a reasonable officer鈥 in the agents鈥 position 鈥渢hat [their] conduct was unlawful in the situation [they] confronted.鈥 Saucier v. Katz, 533 U.S. 194, 202. At the time of the Jacksonville incident, this Court had addressed a constitutional challenge to Secret Service actions only once. In Hunter v. Bryant, 502 U.S. 224, the plaintiff challenged the lawfulness of his arrest by two Secret Service agents for writing and delivering a letter about a plot to assassinate President Reagan. Holding that the agents were shielded by qualified immunity, the Court stated that 鈥渁ccommodation for reasonable error . . . is nowhere more important than when the specter of Presidential assassination is raised.鈥 Id., at 229. This Court has recognized the overwhelming importance of safeguarding the President in other contexts as well. See Watts v. United States, 394 U.S. 705, 707. Mindful that officers may be faced with unanticipated security situations, the key question addressed is whether it should have been clear to the agents that the security perimeter they established violated the First Amendment. Pp. 11鈥13.

(b) The protesters assert, and the Ninth Circuit agreed, that the agents violated clearly established federal law by denying them 鈥渆qual access to the President.鈥 No decision of which the Court is aware, however, would alert Secret Service agents engaged in crowd control that they bear a First Amendment obligation to make sure that groups with conflicting views are at all times in equivalent positions. Nor would the maintenance of equal access make sense in the situation the agents here confronted, where only the protesters, not the supporters, had a direct line of sight to the patio where the President was dining. The protesters suggest that the agents could have moved the supporters out of the motorcade鈥檚 range as well, but there would have been no security rationale for such a move. Pp. 13鈥15.

(c) The protesters allege that, in directing their displacement, the agents acted not to ensure the President鈥檚 safety, but to insulate the President from their message. These allegations are undermined by a map of the area, which shows that, because of the protesters鈥 location, they posed a potential security risk to the President, while the supporters, because of their location, did not. The protesters鈥 counterarguments are unavailing. They urge that, had the agents鈥 professed interest in the President鈥檚 safety been sincere, the agents would have screened or removed from the premises persons already at the Inn when the President arrived. But staff, other diners, and Inn guests were on the premises before the agents knew of the President鈥檚 plans, and thus could not have anticipated seeing the President, no less causing harm to him. The agents also could keep a close watch on the relatively small number of people already inside the Inn, surveillance that would have been impossible for the hundreds of people outside the Inn. A White House manual directs the President鈥檚 advance team to 鈥渨ork with the Secret Service . . . to designate a protest area . . . preferably not in view of the event site or motorcade route.鈥 The manual guides the conduct of the political advance team, not the Secret Service, whose own written guides explicitly prohibit 鈥渁gents from discriminating between anti-government and pro-government demonstrators.鈥 Even assuming, as the protesters maintain, that other agents, at other times and places, have assisted in shielding the President from political speech, this case is scarcely one in which the agents lacked a valid security reason for their ac-tions. Moreover, because individual government officials 鈥渃annot be held liable鈥 in a Bivens suit 鈥渦nless they themselves acted [unconstitutionally],鈥 Iqbal, 556 U. S., at 683, this Court declines to infer from alleged instances of misconduct on the part of particular agents an unwritten Secret Service policy to suppress disfavored expression, and then attribute that supposed policy to all field-level operatives. Pp. 15鈥18.

711 F.3d 941, reversed.

Ginsburg, J., delivered the opinion for a unanimous Court.

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