Vikram David Amar and Alan Brownstein

Can The President Expel Non-Disruptive People From A Public Event Based on Their Viewpoint? A Tenth Circuit Case Gets It Wrong

By VIKRAM DAVID AMAR and ALAN BROWNSTEIN
Friday, February 26, 2010

In this column, we critique a recent and potentially important case from the United States Court of Appeals for the Tenth Circuit that, to our minds, completely misapplies basic free speech theory and doctrine. Taken at face value, the case threatens to place the President above, if not the law entirely, at least the First Amendment.

The Allegations in the Complaint

The ruling, Weise v. Casper, involves the expulsion of two persons, Leslie Weise and Alex Young, from a speech given by then-President George W. Bush in March 2005, at the Wings Over the Rockies Museum, an air-and-space museum located near downtown Denver. According to the facts as alleged in the complaint, Weise and Young drove to the event in a vehicle that bore a "No More Blood For Oil" bumper sticker.

Although Weise and Young were processed by the event's security folks without incident, they were then contacted by a White House volunteer who was staffing the speech, along with a Secret Service agent who, because of the message on the bumper sticker, advised Weise and Young not to try "any funny stuff" at the event.

Weise and Young were admitted to the event at that time, but were later ejected, after the Secret Service agent had consulted with and been advised by White House Advance Office employees. In recommending ejection, these White House Advance Office employees (according to the complaint) appeared to be following an established White House Advance Office "policy of excluding those who disagree with the President from the President's official public appearances."

Weise and Young brought a suit for damages in federal court against various of the agents who caused their expulsion, alleging a violation of the First Amendment because they had been denied access to the event on account of the message their bumper sticker proclaimed. In other words, they asserted they were unconstitutionally discriminated against based on their ideological viewpoint.

The Tenth Circuit's Ruling: The Defendants Enjoyed Immunity From Suit

The Tenth Circuit, in its ruling late last month, held that even assuming the defendants violated the Constitution, the constitutional impermissibility of their actions was not clearly established at the time of the incident. This lack of constitutional clarity meant that defendants enjoyed "qualified immunity" from any liability for damages.

The Tenth Circuit never went on to hold -- one way or another -- whether there was in fact a First Amendment violation here at all, since either way, the plaintiffs' damage claim would lose on this qualified immunity ground.

In finding qualified immunity, the Tenth Circuit essentially held that no ruling that was on the books at the time the incident occurred had established a right to attend a Presidential speech, and that the cases on which plaintiffs relied for the existence of a First Amendment violation all involved the impermissible exclusion of speakers from areas in which the speakers had an undisputed First Amendment right to engage in expressive activities.

Indeed, said the Tenth Circuit, the case that came closest to the present dispute was Sistrunk v. City of Strongville, where the United States Court of Appeals for the Sixth Circuit upheld the power of the government to exclude a person from a George Bush (the elder)/Dan Quayle rally that was being held by the Bush/Quayle election campaign committee in a public park. If anything, reasoned the Tenth Circuit, the case law most closely on point tended to negate, rather than establish, Weise's and Young's First Amendment claim.

Why The Tenth Circuit Was Dead Wrong, and Its Reasoning Quite Facile

In evaluating the plaintiffs' claim in this case, a court's first step should have been to identify and analyze carefully the nature and purpose of the event from which the plaintiffs were unceremoniously booted. Here, we are told in the Tenth Circuit's opinion that "the President's speech was an official government event, funded by the government," and that "the White House made tickets available to any member of the public." Both facts are critical to the constitutional analysis, and, indeed, go a long way towards undermining the Tenth Circuit's reasoning.

The President, as is true of virtually all government officials, wears two hats: At different times, he acts in either his private or public capacity. Examples of appearances in his private capacity would include the President worshipping at the church of his choice, appearing at a privately-funded campaign rally while running for re-election, or engaging in other activities where he is fulfilling a personal, rather than an official, function. In these situations, the President and the private organizers of the activity in which he participates enjoy the same right enjoyed by any other private citizen bringing a group together: the right to limit access to such events and to exclude unwanted individuals.

The Presidential speech in the Weise case, however, was a public event in which the President was acting in his official capacity. The event was funded, organized and controlled by the United States government. The President was doing the People's business -- not his own -- which is the only reason the People were paying for it. Private rights to exclude others simply have no applicability here. (That is why the Sistrunk case, on which the Tenth Circuit relied, was beside the point; there, a private campaign organization had a permit – just like any other private group – to hold a privately-funded event in a public park and to exclude persons who were not invited to the event.)

The President and His Staff Do Have Discretionary Authority to Exclude People from Public Functions, But It Depends on the Nature of the Function

To be sure, government officials performing public, government functions will often have the discretionary authority to strictly control access to the locations in which they work in order that the public function be accomplished. Obviously, no one has a free speech right -- or any other kind of right -- to attend meetings between the President and his cabinet in the Oval Office, or meetings between the President and other officials, foreign or domestic, in other restricted locations. The President can invite or exclude third parties from such activities at his or her sole discretion, in order to facilitate the objectives behind the meetings. Other government officials, too, may have similar, although arguably more limited, discretionary authority to control access to the location where they perform their governmental functions.

It is important to recognize, however, that this discretionary authority is grounded on the nature of the governmental function that is at issue. Some functions require privacy or dramatic limitations on access because of the role that those who attend the activity are expected to perform. The government may limit access to these government activities when doing so is necessary to the accomplishment of the government's legitimate objectives.

In the Colorado case, however, the plaintiffs who sought to attend the President's address had no function to perform other than to provide an audience to the President's speech. They were spectators, not functionaries. The fact that tickets were made "available to any member of the public" demonstrates that audience members needed no special expertise or qualifications, and were not doing "business" with President. In that passive role of audience member, no individual's political, religious, or racial identity had any bearing on the government's ability to accomplish its goal, which was presumably that of providing an opportunity for citizens to listen directly to the President's address.

In the Case Before the Tenth Circuit, the Plaintiffs' Right to Join the Audience Should Have Been Quite Clear to the Court

Thus, the issue before the Tenth Circuit was straightforward and easily framed: When the government invites members of the community at large to be present at a public state event, function or place, may the government exclude prospective audience members because of the way they may have exercised fundamental rights, such as the right to freedom of speech, in their private lives as American citizens?

We would have thought that the answer to this question was so obviously "No" that the affirmation of that conclusion by a federal Court of Appeals should have been constitutional second nature. After all, consider the implications of a contrary result. There are more Democratic than Republican members in the House of Representatives and the Senate, but does anyone believe that this entitles both legislative bodies to bar registered Republicans from obtaining seats in the House or Senate gallery? Would it be constitutional to bar Americans from sitting in the congressional gallery if they opposed President Obama's healthcare policies?

What about the audience to a state legislative session, a city council meeting, a school board public deliberation, or an oral argument before the United States Supreme Court? In all of these situations and others, may potential audience members be excluded simply because they hold dissident views on public policy issues or constitutional law questions? Although the President of the United States has an exalted role in our system of government, we see no reason why the President should be uniquely above the law of the First Amendment in this case.

Nor is the question limited to government meetings. Does anyone think the government can constitutionally exclude drivers whose cars bear "No More Blood for Oil" bumper stickers from entering national forests or national parks? Or that Congresspersons can use the "franking" (free mail) privilege to send information to Democrats but not Republicans?

These examples illustrate that the question is not, as the Tenth Circuit wrongly suggested, whether there is a "right" to attend the President's speech. There may be no "right" to attend a school board meeting or no "right" to drive into a national park or no "right" to receive mail from one's elected representatives. But there is surely, under Supreme Court precedent, a right to be free from viewpoint discrimination with respect to public benefits and information, including the benefit of attending public events.

We think it is an inescapable conclusion that the plaintiffs in this case were penalized because of the message they expressed on their vehicle – their own private property. The nature of that penalty can be described in different ways: The plaintiffs were denied the right to hear what the President had to say – an interest that itself has constitutional ramifications. They were denied the benefit of listening to a presidential address in person – an opportunity of clear value. They were denied access to a public event to which they would otherwise have been admitted. Indeed, they were forcibly removed from the event in a very public and humiliating way. As citizens, as voters, and as taxpayers, the plaintiffs had constitutional rights that were burdened by their removal from the President's audience.

There can be little doubt that these consequences constitute a burden of sufficient magnitude to abridge an individual's right to freedom of speech. If they are not sufficient burdens to invoke First Amendment protection against viewpoint discrimination, then we can only wonder if they would be sufficient, in the Tenth Circuit's eyes, to invoke the protection of other fundamental rights. If the government had excluded Jews or Moslems from the audience of a publicly open Presidential address, we would argue strongly that such conduct penalized the constitutional right to the free exercise of religion. It seems equally apparent that the same burden, if imposed on individuals for expressing dissident political messages, violates accepted free-speech doctrine.

It should also be noted that the speech for which plaintiffs were punished in this case was speech apparently expressing disapproval of existing government policy, the kind of speech that the Supreme Court has reminded (in the 1989 flag burning case and elsewhere) is "situated at the core of our First Amendment values."

A Lack of Precisely On-Point Precedent Is Not Necessarily a Lack of Clarity

We recognize that there may be little precedent that is exactly on point to support our analysis of this dispute. But the lack of case law on this issue does not necessarily suggest that this kind of a case is truly one of first impression. More than likely, the lack of cases addressing this kind of a dispute reflects the general understanding that viewpoint-based exclusionary policies are so obviously unconstitutional that it makes little sense to commit legal resources to their defense. In other words, sometimes (and we think this is such a case) the lack of cases on point helps prove how constitutionally obvious the point is.

Let us be clear: We are not arguing that the location in which the President spoke is some kind of a public forum. There is no evidence that the plaintiffs intended to express themselves at all during the President's address, unless they were invited to do so. This case does not involve the government's authority to silence hecklers who disrupt a government function. The plaintiffs' expressive activity that is at issue in this case occurred elsewhere -- on the public streets and on any private property on which they parked their car, with its controversial bumper sticker.

The Strict-Scrutiny Issue, Too, Clearly Should Have Been Resolved in the Plaintiffs' Favor

If our analysis above had been accepted by the court, then the sole remaining issue in the case would have been whether the government's conduct here could satisfy strict-scrutiny review, which requires that an incursion on rights be justified by a state interest of some substantial weight. The only substantial state interest we could even imagine the government asserting here, to justify its actions, would be the interest in avoiding disruption of the President's address. While we believe, as a general matter, that moderate expressions of disagreement directed at government officials by audience members should be tolerated as an accepted aspect of democracy, we also recognize that serious disruption of public events warrants removal of the offenders.

That cannot mean, however, that the government can simply presume that any individual who has expressed opposition to one or more of the President's policies in any place is a serious threat to disrupt a Presidential address and may be excluded from any event where the President will speak on that basis. This kind of conclusive presumption linking protected political criticism and unlawful disruptive conduct would allow the government to exclude audience members who have criticized its policies from public events at the government's discretion. That simply cannot be a constitutionally permissible response by the government to political speech.

We understand, of course, that in Pearson v. Callahan, the Supreme Court held that in qualified immunity cases lower courts are free to determine whether a constitutional right was clearly established before (or sometimes without) addressing whether a violation of the right had actually occurred. Yet that discretion must be exercised in a thoughtful and prudent manner. By deciding initially that a right has not been clearly established – and thus obviating the need to resolve whether a violation of the right occurred-- courts may create a self-fulfilling prophecy: The right at issue can never become clearly established if courts continually turn to the "clearly established" issue first, and then duck the constitutional question of whether the right actually exists.

We thus believe, at a minimum, that it would be helpful and appropriate if the next Court of Appeals panel that addresses the same kinds of issues presented in the Weise case chooses to resolve them on the merits.


Vikram David Amar, a FindLaw columnist, is the Associate Dean for Academic Affairs and Professor of Law at the University of California, Davis School of Law. He is a 1988 graduate of the Yale Law School, and a former clerk to Justice Harry Blackmun. He is a co-author, along with William Cohen and Jonathan Varat, of a major constitutional law casebook, and a co-author of several volumes of the Wright & Miller treatise on federal practice and procedure. Before teaching, Professor Amar spent a few years at the firm of Gibson, Dunn & Crutcher.

Alan Brownstein is a Professor of Law and the Boochever and Bird Endowed Chair for the Study and Teaching of Freedom and Equality at the University of California, Davis, School of Law.

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