For Michael ‘Mookie’ Moss, case against Secret Service is matter of free speech

Michael “Mookie” Moss and his fellow protesters could not believe their luck: President George W. Bush, the object of their dissatisfaction, made an impromptu decision to dine al fresco right by the spot in picturesque Jacksonville, Ore., where the local sheriff had directed the dissenters to assemble.

It was the closing month of Bush’s reelection campaign in 2004, and the protesters’ chants about war and the president’s environmental polices found their mark as Bush sat down to dinner on the fenced-in patio of the Jacksonville Inn.

Robert Barnes has been a Washington Post reporter and editor since 1987. He has covered the Supreme Court since November 2006. He gave up law school plans for a life in newspapers after taking a journalism class in college. It did not occur to him, as it apparently did to others, that he could do both. View Archive

“They heard us,” Moss said in an interview last week. “I know some people who work at the hotel, and they say the server had to lean down to hear President Bush’s and Laura’s orders.”

About 15 minutes into the dinner, somebody decided enough was enough. Secret Service agents Tim Wood and Rob Savage gave the order for local law enforcement to move the 200 or so protesters further away. But a group of Bush supporters, who gathered on the opposite street corner from the protesters, were allowed to stay.

Moss, a former organic farmer and goat herder who now works to promote sustainable agriculture, will be at the Supreme Court later this month when the justices consider the case he and others have filed against the Secret Service agents.

Normally, agents are immune from lawsuits that arise from the actions they take to protect the president. But lower courts have said Moss’s suit can go forward. He makes a plausible argument, they said, that the agents violated his right to free speech when they moved the Bush protesters but not the Bush supporters.

The case continues a season of the court’s interest in the rules involving protest.

Already this term the court has ruled against a demonstrator who challenged a military base commander’s decision to ban him from a spot on the base open to the public. The court based its decision on federal law, but John Dennis Apel, the protester, thinks he can still challenge his arrest on First Amendment grounds (and he’s been arrested again at Vandenberg Air Force Base since the court’s decision).

The justices are still pondering the Massachusetts law that expanded the speech-free zone around an abortion clinic. The case was brought by those who say they need to be close enough to women entering the clinic to plead with them not to go through with the procedure.

And a clutch of cases challenging the protest ban on the court’s own front porch — its invitingly wide marble plaza — is percolating in lower courts.

Moss and his compatriots probably face an uphill battle. The justices have shown in the past they are reluctant to second-guess the Secret Service or expose the agents to personal liability for their on-the-job actions.

Two years ago, the court dismissed a suit brought by a man who was detained by agents after telling former Vice President Richard B. Cheney that his policies were disgusting.

“Officers assigned to protect public officials must make singularly swift, on the spot, decisions whether the safety of the person they are guarding is in jeopardy,” Justice Ruth Bader Ginsburg wrote in a concurring opinion. “In performing that protective function, they rightly take into account words spoken to, or in the proximity of, the person whose safety is their charge.”

In Moss’s case, the lower courts said he should be able to try to convince a jury that the agents weren’t trying to protect the president, but simply silence his critics.

“There is simply no apparent explanation for why the Secret Service agents permitted only the pro-Bush demonstrators, and not the anti-Bush protestors, to remain” in proximity to the president, wrote Marsha S. Berzon, a judge on the U.S. Court of Appeals for the 9th Circuit. But eight of her colleagues disagreed in a blistering dissent from Appeals Court Judge Diarmuid O’Scannlain.

“In effect, the panel holds today that the Constitution requires Secret Service agents to subsume their duty to protect the president to their newly created duty to act like concert ushers — ensuring with tape-measure accuracy that everyone who wants to demonstrate near the president has an equally good view of the show,” O’Scannlain wrote.

Government officials traditionally don’t comment about cases beyond their official filings.

Solicitor General Donald B. Verrilli Jr., defending agents Wood and Savage, said in his brief to the court that the agents simply adapted to changing circumstances. “Following the president’s last-minute change of plans,” Verrilli writes, it is considerably more likely that the agents “were motivated by their stated security rationale — moving everyone out of handgun or explosive range — than by a desire to suppress speech.”

The government is supported by a coalition of state and local officials who have an unusual invitation to the sometimes technology-challenged justices: Take a virtual look around town and see for yourself.

“Go to www.maps.google.com,” the amicus brief instructs. “In the query box, type ‘Third and California Streets, Jacksonville, OR.’ Then click and drag the person icon.” (Apparently, not much has changed in Jacksonville in the past decade.)

The brief said it will become clear that the positions of the pro-Bush crowd and the anti-Bush crowd were “roughly the same as the crow flies, but the two street corners are profoundly different as the bullet flies.”

The ACLU of Oregon, which is representing Moss and the other protesters, said that if safety were the issue, the protesters would have been moved immediately after Bush decided to dine on the patio, not 15 minutes into his noisy meal.

It notes a “presidential advance manual” that instructed White House staff members to work with agents to set up protest areas that were “preferably not in view of the event site or motorcade route.”

Oct. 14, 2004, ended badly. Police in riot gear were brought in to move the anti-Bush crowd; Moss says he was shot several times with hard plastic pellets like paint balls. A complaint of excessive force is proceeding in a separate lawsuit.

Moss, now 38 and the product of what he described as a family fond of civil disobedience, said he knows the rules of protest. But if his group was too close for comfort, so were the pro-Bush demonstrators, he said.

“No, moving one block is not a big deal,” he said in answer to a question. “But I think the First Amendment is a big deal.”

Government cannot treat demonstrators differently, he said, based on what they are saying.

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