By Nicholas Murray
According to the Tenth Circuit, dissent is un-American when the President of the United States is involved. In Weise v. Casper, a split Tenth Circuit recently handed down a long-awaited First Amendment case involving the use of a bumper sticker on private property. Appellants, Leslie Weise and Alex Young appeal the Bivens complaint that was dismissed by the lower court.
On March 21, 2005, Appellants attended then-President George W. Bush’s speech at the Wings Over the Rockies museum. White House policy established who could attend the speech because it was a government-sponsored event. Prior to the event, the White House “established a policy of excluding those who disagree with the President from the President’s official public appearances.” Appellants, like most Americans, were unaware of this policy and proceeded to the event in a car adorned with a bumper sticker that read: “No More Blood For Oil.” After passing through security, Appellants were told to wait for Secret Service. Appellee then arrived and told Appellant Weise that “she had been ‘ID’d’” because of the sticker and “that if she had any ill intentions” or “tried any ‘funny stuff’ that [she] would be arrested, but that he was going to let [her] in.” Appellants then made their way to the event but were asked to leave moments after taking their seats. The American Civil Liberties Union then filed suit claiming that Appellants’ First Amendment right to Free Speech was violated when they were removed from the event.
After analyzing Appellees’ qualified immunity defense, Judge Kelly, joined by Judge Tacha, held that “Plaintiffs simply have not identified any First Amendment doctrine that prohibits the government from excluding them from an official speech on private property on the basis of their viewpoint.” Judge Kelly reasoned that Appellants were not “speakers” at the event because they “did not intend to speak at the President’s speech,” and attendance is not itself speech. Then, the Court explained that the First Amendment does not protect mere presence at an event. Appellants offered similar cases to bolster their argument, but the Court dismissed the cases as inapposite because they were cases involving either speech or demonstrations.
Judge Holloway dissented, arguing that Appellants’ “expression did not . . . receive the protection which it was entitled.” Judge Holloway found that Appellants’ “rude, public, and forceful eject[ion]” was based on the bumper sticker affixed to a car “which was parked in a parking lot some distance away.” Judge Holloway went further, stating that “[i]t is simply astounding that any member of the executive branch could have believed that our Constitution justified this egregious violation of [Appellants]’ rights.” Further, Judge Holloway found that the Appellee-Defendants had no right to qualified immunity because Appellants’ “[First Amendment] rights so violated were clearly established because of the fundamental importance of the right of free speech on topics of public concern and because no reasonable officer could have believed that it was permissible under the Constitution to humiliate these [Appellants] solely because one of them had legitimately exercised her right of free speech at another time and place.”
Ultimately, Holloway criticized the district court’s ruling, finding that “the district court’s analysis was based on a patently erroneous reading of the Complaint.” The district judge read the Appellants’ Complaint to plead that Appellants were unable “to participate in the President’s speech.” The district court went on to cite Sistrunk v. City of Strongville, 99 F.3d 194 (6th Cir. 1996), which held that the President of the United States has “the right to control his message, including the right to exclude another’s viewpoint.” Judge Holloway called this analysis “erroneous” and “misplaced.” First, the Complaint did not plead that Appellants’ wished to participate in the President’s speech, rather it plead that they wished to attend the event. Second, Sistrunk is inapposite to the facts in the instant case because “Sistrunk held that a private entity, the Bush-Quayle election committee could exclude from its private rally a person who was wearing a button expressing support for an opposing candidate.” Here, the Appellants were attending a public event at a public museum and “did not attempt to express any opinion in the course of their attendance.” Finally, Judge Holloway found that the Appellants’ point of view should have been protected, and instead “representatives of the Executive publicly ostracized and humiliated” Weise and Young.