Weise v. Casper , 178 L. Ed. 2d 314 ( 2010 )

Cite as: 562 U. S. ____ (2010) 1
GINSBURG, J., dissenting
SUPREME COURT OF THE UNITED STATES
LESLIE WEISE ET AL. v. MICHAEL CASPER ET AL.
ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR THE TENTH CIRCUIT
No. 10–67. Decided October 12, 2010
The petition for a writ of certiorari is denied.
JUSTICE GINSBURG, with whom JUSTICE SOTOMAYOR
joins, dissenting from denial of certiorari.
The President of the United States gave a speech open
to the public, from which Leslie Weise and Alex Young
allege they were forcibly ejected. Their transgression was
to have arrived at the event in a car that displayed a
bumper sticker reading “No More Blood For Oil.” After
they were marched out, they allege, Secret Service officials
confirmed to them that the bumper sticker was the reason
for their exclusion.
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). 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 constitu
tionally protected interests.” Perry v. Sindermann, 408
U. S. 593, 597 (1972). As Judge Holloway noted in his
incisive dissent, solidly established law “may apply with
obvious clarity” even to conduct startling in its novelty.
2 WEISE v. CASPER
GINSBURG, J., dissenting
593 F. 3d, at 1177 (quoting Hope v. Pelzer, 536 U. S. 730,
741 (2002); emphasis deleted).
The Court of Appeals suggested that this Court’s deci
sion in Hurley v. Irish-American Gay, Lesbian and Bisex
ual Group of Boston, Inc., 515 U. S. 557 (1995), could have
justified a decision to exclude individuals who appear to
disagree with the President’s views. But the comparison
serves only to highlight the unlawfulness of Weise’s and
Young’s alleged treatment: 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],” 593 F. 3d, at
1170 (emphasis added). Their presence alone cannot have
affected the President’s message. Therefore, ejecting them
for holding discordant views could only have been a repri
sal for the expression conveyed by the bumper sticker.
“Official reprisal for protected speech ‘offends the Consti
tution because it threatens to inhibit exercise of the pro
tected right.’ ” Hartman v. Moore, 547 U. S. 250, 256
(2006) (quoting Crawford-El v. Britton, 523 U. S. 574, 588,
n. 10 (1998); brackets omitted).
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 oppor
tunity to take up the issue avoided today.