Legal Commentary

Cert Denied for Denver Three, Ginsburg, Sotomayor Dissent

By Jeralyn

Remember the "Denver Three" who were kicked out of a Colorado campaign event for George Bush? The Tenth Circuit ruled the officials had qualified immunity. They petitioned for cert and the Supreme Court denied their request today. The question presented:

Whether clearly established First Amendment law prohibits government officials who are speaking at events that are open to the public and paid for by taxpayers from excluding people from the audience on the basis of viewpoint

Justice Ginsburg dissented, joined by Justice Sotomayor:

I cannot see how reasonable public officials, or any staff or volunteers under their direction, could have viewed the bumper sticker as a permissible reason for depriving Weise and Young of access to the event. Nevertheless, the Court of Appeals held respondents entitled to qualified immunity because “no specific authority instructs this court . . . how to treat the ejection of a silent attendee from an official speech based on the attendee’s protected ex-pression outside the speech area.” 593 F. 3d 1163, 1170 (CA10 2010).

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No “specific authority” should have been needed; “[f]or at least a [half]-century, this Court has made clear that . . . [the government] may not deny a benefit to a person on a basis that infringes his constitutionally protected interests.”

Not only was this an official presentation of the President’s views, not a private act of expression as in Hurley; in addition, unlike the Hurley plaintiff who sought to engage in competing expression, Weise and Young were “silent attendee[s]... Their presence alone cannot have affected the President’s message. Therefore, ejecting them for holding discordant views could only have been a reprisal for the expression conveyed by the bumper sticker. “Official reprisal for protected speech ‘offends the Constitution because it threatens to inhibit exercise of the protected right.’”

I see only one arguable reason for deferring the question this case presents. Respondents were volunteers following instructions from White House officials. The Volunteer Protection Act of 1997, 111 Stat. 218, 42 U. S. C. §14501 et seq., had respondents invoked it in the courts below, might have shielded them from liability. Federal officials them-selves, however, gain no shelter from that Act. Suits against the officials responsible for Weise’s and Young’s ouster remain pending and may offer this Court an opportunity to take up the issue avoided today.

Full post as published by TalkLeft on October 12, 2010 (boomark / email).