Lawsuit Claiming Viewpoint Discrimination Against Anti-President-Bush Protesters May Go Forward

So holds Moss v. United States Secret Service (9th Cir. Apr. 9, 2012). The protesters claim that the Secret Service required them to move further (on public streets) from where the President was staying, ostensibly for security reasons, but did not require this of a similar group of pro-President-Bush demonstrators. The Ninth Circuit holds that the lawsuit can go forward, because if the facts are as claimed, the Secret Service’s action would be unconstitutional.

That sounds quite right to me. When a government official — or anyone else — is speaking on private property, or even public property that’s temporarily rented out to a private organization, the managers of the property may choose to allow some speech on the property but not other speech. But in a traditional public forum, like a public sidewalk, such content- and viewpoint-based restrictions are impermissible (though content-neutral restrictions justified by security concerns sometimes might be, if they are narrow enough).

The court also allows the protesters (again, I think correctly) to go forward with their Fourth Amendment excessive force claim. “There is little doubt that …, the force alleged here was excessive.” (Of course, recall that at this stage in the lawsuit, the court is discussing allegations and not factual findings.) “The protestors allege that without ensuring that they heard the police warning that instructed them to move, and without giving them time to move of their own accord, the police, ‘including officers clad in riot gear, forced the anti-Bush demonstrators to move …, in some cases by violently shoving’ them, ‘striking them with clubs and firing pepper spray bullets at them.’ Once on the east side of Fifth Street, the police ‘divided the [anti-Bush protestors] into two groups, encircling each group,’ and ‘separat[ing]‘ families, ‘including children, some of whom were lost, frightened and traumatized.’ Although some protestors attempted to leave the area, they were prevented from doing so.”

Thanks to How Appealing for the pointer.