04 June 2012
Reichle v. Howards: Don't touch the Veep!
Steven Howards probably blew whatever chance he had with the Supreme Court the day he lied about laying hands on Vice President Cheney at a Colorado shopping mall. Howards sued the Secret Service officers who subsequently arrested him for violating his First Amendment rights. He claimed that the arrest was retaliation for his comments on Cheney's metaphoric kid-killing role in the Iraq War. The officers appealed for immunity, and today a unanimous Court (minus Justice Kagan, who had dealt with the case while Solicitor General) granted it. In the official opinion Justice Thomas ruled that Secret Service agents should not be subject to suit for "retaliatory" arrests made on "probable cause." Probable cause kicked in once it became apparent that Howards had lied about what he's since described as a laying on of hands, and what others have called an attempted shove. The key quote from Thomas's opinion is "This Court has never recognized a First Amendment right to be free from a retaliatory arrest that is supported by probable cause." Since the charges against Howards were eventually dropped, the arrest is all he could have sued over, though that's not an option now. Clarifying the real meaning of the ruling, two of the liberal justices, Ginzburg and Breyer made clear that Reichle, et al were entitled to special consideration in their appeal because they were Secret Service agents and were obliged and empowered to make snap decisions for the security of their charges. One gets the feeling that the ruling would have gone the same way had Howards never touched Cheney, since the real issue, as far as the justices were concerned, was the rights of the agents, not Howards's rights. Thomas hints that "probable cause" might be found for a retaliatory arrest, and to immunize the arresting officer, even if someone had only spoken and not confronted an official hands-on. "[T]he connection between alleged animus [the basis of Howards's suit] and injury may be weakened in the arrest context by a police officer's wholly legitimate consideration of speech," he writes. Of course, an actual assassin trying to get close to a politician is unlikely to give "probable cause" by declaring his hatred for all to hear. On that understanding, it seems that all the Court has done is give the Secret Service free reign to bully anyone who dares tell off a politician at close range. In our current political environment disagreement is equated with hate; speaking truth (or anything else) to power inevitably looks like a threat. Let my opinion seem partisan because of Cheney's involvement, I can just as easily see some crank carted off for confronting the current President and demanding that he prove his place of birth on the spot. When the safety of power comes before the right to confront power verbally, something has gone wrong in this country.