Wood v. Moss

(Slip Opinion) OCTOBER TERM, 2013 1

Syllabus

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is

being done in connection with this case, at the time the opinion is issued.

The syllabus constitutes no part of the opinion of the Court but has been

prepared by the Reporter of Decisions for the convenience of the reader.

See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

WOOD ET AL. v. MOSS ET AL.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR

THE NINTH CIRCUIT

No. 13–115. Argued March 26, 2014—Decided May 27, 2014

While campaigning for a second term, President George W. Bush was

scheduled to spend the night at a Jacksonville, Oregon, cottage. Lo-

cal law enforcement officials permitted a group of Bush supporters

and a group of protesters to assemble on opposite sides of a street

along the President’s motorcade route. When the President made a

last-minute decision to have dinner at the outdoor patio area of the

Jacksonville Inn’s restaurant before resuming the drive to the cot-

tage, the protesters moved to an area in front of the Inn, which

placed them within weapons range of the President. The supporters

remained in their original location, where a two-story building

blocked sight of, and weapons access to, the patio. At the direction of

two Secret Service agents responsible for the President’s security, pe-

titioners here (the agents), local police cleared the area where the

protesters had gathered, eventually moving them two blocks away to

a street beyond weapons reach of the President. The agents did not

require the guests already inside the Inn to leave, stay clear of the

patio, or go through a security screening. After the President dined,

his motorcade passed the supporters, but the protesters, now two

blocks from the motorcade’s route, were beyond his sight and hear-

ing.

The protesters sued the agents for damages, alleging that the

agents engaged in viewpoint discrimination in violation of the First

Amendment when they moved the protesters away from the Inn but

allowed the supporters to remain in their original location. The Dis-

trict Court denied the agents’ motion to dismiss the suit for failure to

state a claim and on qualified immunity grounds, but on interlocuto-

ry appeal, the Ninth Circuit reversed. The court held that the pro-

testers had failed to state a First Amendment claim under the plead-

2 WOOD v. MOSS

Syllabus

ing standards of Bell Atlantic Corp. v. Twombly, 550 U. S. 544, and

Ashcroft v. Iqbal, 556 U. S. 662. Because those decisions were ren-

dered after the protesters commenced suit, the Court of Appeals

granted leave to amend the complaint. On remand, the protesters

supplemented the complaint with allegations that the agents acted

pursuant to an unwritten Secret Service policy of working with the

Bush White House to inhibit the expression of disfavored views at

presidential appearances. The District Court denied the agents’ re-

newed motion to dismiss. This time, the Ninth Circuit affirmed, con-

cluding that viewpoint-driven conduct on the agents’ part could be in-

ferred from the absence of a legitimate security rationale for the

different treatment accorded the two groups of demonstrators. The

Court of Appeals further held that the agents were not entitled to

qualified immunity because this Court’s precedent made clear that

the Government may not regulate speech based on its content.

Held: The agents are entitled to qualified immunity. Pp. 11–18.

(a) Government officials may not exclude from public places per-

sons engaged in peaceful expressive activity solely because the gov-

ernment actor fears, dislikes, or disagrees with the views expressed.

See, e.g., Police Dept. of Chicago v. Mosley, 408 U. S. 92, 96. The fun-

damental right to speak, however, does not leave people at liberty to

publicize their views “ ‘whenever and however and wherever they

please.’ ” United States v. Grace, 461 U. S. 171, 177. In deciding

whether the protesters have alleged violation of a clearly established

First Amendment right, this Court assumes without deciding that

Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388, which

involved alleged Fourth Amendment violations, extends to First

Amendment claims, see, e.g., Iqbal, 556 U. S., at 675.

The doctrine of qualified immunity protects government officials

from liability for civil damages “unless a plaintiff pleads facts show-

ing (1) that the official violated a statutory or constitutional right,

and (2) that the right was ‘clearly established’ at the time of the chal-

lenged conduct.” Ashcroft v. al-Kidd, 563 U. S. ___, ___. The “dispos-

itive inquiry . . . is whether it would [have been] clear to a reasonable

officer” in the agents’ position “that [their] conduct was unlawful in

the situation [they] confronted.” Saucier v. Katz, 533 U. S. 194, 202.

At the time of the Jacksonville incident, this Court had addressed a

constitutional challenge to Secret Service actions only once. In

Hunter v. Bryant, 502 U. S. 224, the plaintiff challenged the lawful-

ness of his arrest by two Secret Service agents for writing and deliv-

ering a letter about a plot to assassinate President Reagan. Holding

that the agents were shielded by qualified immunity, the Court stat-

ed that “accommodation for reasonable error . . . is nowhere more im-

portant than when the specter of Presidential assassination is

Cite as: 572 U. S. ____ (2014) 3

Syllabus

raised.” Id., at 229. This Court has recognized the overwhelming

importance of safeguarding the President in other contexts as well.

See Watts v. United States, 394 U. S. 705, 707. Mindful that officers

may be faced with unanticipated security situations, the key question

addressed is whether it should have been clear to the agents that the

security perimeter they established violated the First Amendment.

Pp. 11–13.

(b) The protesters assert, and the Ninth Circuit agreed, that the

agents violated clearly established federal law by denying them

“equal access to the President.” No decision of which the Court is

aware, however, would alert Secret Service agents engaged in crowd

control that they bear a First Amendment obligation to make sure

that groups with conflicting views are at all times in equivalent posi-

tions. Nor would the maintenance of equal access make sense in the

situation the agents here confronted, where only the protesters, not

the supporters, had a direct line of sight to the patio where the Presi-

dent was dining. The protesters suggest that the agents could have

moved the supporters out of the motorcade’s range as well, but there

would have been no security rationale for such a move. Pp. 13–15.

(c) The protesters allege that, in directing their displacement, the

agents acted not to ensure the President’s safety, but to insulate the

President from their message. These allegations are undermined by

a map of the area, which shows that, because of the protesters’ loca-

tion, they posed a potential security risk to the President, while the

supporters, because of their location, did not. The protesters’ coun-

terarguments are unavailing. They urge that, had the agents’ pro-

fessed interest in the President’s safety been sincere, the agents

would have screened or removed from the premises persons already

at the Inn when the President arrived. But staff, other diners, and

Inn guests were on the premises before the agents knew of the Presi-

dent’s plans, and thus could not have anticipated seeing the Presi-

dent, no less causing harm to him. The agents also could keep a close

watch on the relatively small number of people already inside the

Inn, surveillance that would have been impossible for the hundreds of

people outside the Inn. A White House manual directs the Presi-

dent’s advance team to “work with the Secret Service . . . to designate

a protest area . . . preferably not in view of the event site or motor-

cade route.” The manual guides the conduct of the political advance

team, not the Secret Service, whose own written guides explicitly

prohibit “agents from discriminating between anti-government and

pro-government demonstrators.” Even assuming, as the protesters

maintain, that other agents, at other times and places, have assisted

in shielding the President from political speech, this case is scarcely

one in which the agents lacked a valid security reason for their ac-

4 WOOD v. MOSS

Syllabus

tions. Moreover, because individual government officials “cannot be

held liable” in a Bivens suit “unless they themselves acted [unconsti-

tutionally],” Iqbal, 556 U. S., at 683, this Court declines to infer from

alleged instances of misconduct on the part of particular agents an

unwritten Secret Service policy to suppress disfavored expression,

and then attribute that supposed policy to all field-level operatives.

Pp. 15–18.

711 F. 3d 941, reversed.

GINSBURG, J., delivered the opinion for a unanimous Court.

Cite as: 572 U. S. ____ (2014) 1

Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in the

preliminary print of the United States Reports. Readers are requested to

notify the Reporter of Decisions, Supreme Court of the United States, Wash-

ington, D. C. 20543, of any typographical or other formal errors, in order

that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES

_________________

No. 13–115

_________________

TIM WOOD AND ROB SAVAGE, PETITIONERS v.

MICHAEL MOSS ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE NINTH CIRCUIT

[May 27, 2014]

JUSTICE GINSBURG delivered the opinion of the Court.

This case concerns a charge that two Secret Service

agents, in carrying out their responsibility to protect the

President, engaged in unconstitutional viewpoint-based

discrimination. The episode in suit occurred in Jackson-

ville, Oregon, on the evening of October 14, 2004. Presi-

dent George W. Bush, campaigning in the area for a sec-

ond term, was scheduled to spend the evening at a cottage

in Jacksonville. With permission from local law enforce-

ment officials, two groups assembled on opposite sides of

the street on which the President’s motorcade was to

travel to reach the cottage. One group supported the

President, the other opposed him.

The President made a last-minute decision to stop in

town for dinner before completing the drive to the cottage.

His motorcade therefore turned from the planned route

and proceeded to the outdoor patio dining area of the

Jacksonville Inn’s restaurant. Learning of the route

change, the protesters moved down the sidewalk to the

area in front of the Inn. The President’s supporters re-

mained across the street and about a half block away from

2 WOOD v. MOSS

Opinion of the Court

the Inn. At the direction of the Secret Service agents,

state and local police cleared the block on which the Inn

was located and moved the protesters some two blocks

away to a street beyond handgun or explosive reach of the

President. The move placed the protesters a block farther

away from the Inn than the supporters.

Officials are sheltered from suit, under a doctrine

known as qualified immunity, when their conduct “does

not violate clearly established . . . constitutional rights” a

reasonable official, similarly situated, would have compre-

hended. Harlow v. Fitzgerald, 457 U. S. 800, 818 (1982).

The First Amendment, our precedent makes plain, disfa-

vors viewpoint-based discrimination. See Rosenberger v.

Rector and Visitors of Univ. of Va., 515 U. S. 819, 828

(1995). But safeguarding the President is also of over-

whelming importance in our constitutional system. See

Watts v. United States, 394 U. S. 705, 707 (1969) (per

curiam). Faced with the President’s sudden decision to

stop for dinner, the Secret Service agents had to cope with

a security situation not earlier anticipated. No decision of

this Court so much as hinted that their on-the-spot action

was unlawful because they failed to keep the protesters

and supporters, throughout the episode, equidistant from

the President.

The United States Court of Appeals for the Ninth Cir-

cuit ruled otherwise. It found dispositive of the agents’

motion to dismiss “the considerable disparity in the dis-

tance each group was allowed to stand from the Presi-

den[t].” Moss v. United States Secret Serv., 711 F. 3d 941,

946 (2013). Because no “clearly established law” so con-

trolled the agents’ response to the motorcade’s detour, we

reverse the Ninth Circuit’s judgment.

I

A

On October 14, 2004, after a nearby campaign appear-

Cite as: 572 U. S. ____ (2014) 3

Opinion of the Court

ance, President George W. Bush was scheduled to spend

the night at a cottage in Jacksonville, Oregon. Anticipat-

ing the visit, a group of individuals, including respondents

(the protesters), organized a demonstration to express

their opposition to the President and his policies. At

around 6:00 p.m. on the evening the President’s motorcade

was expected to pass through the town, between 200 and

300 protesters gathered in Jacksonville, on California

Street between Third and Fourth Streets. See infra, at 4

(map depicting the relevant area in Jacksonville). The

gathering had been precleared with local law enforcement

authorities. On the opposite side of Third Street, a simi-

larly sized group of individuals (the supporters) assembled

to show their support for the President. If, as planned, the

motorcade had traveled down Third Street to reach the

cottage, with no stops along the way, the protesters and

supporters would have had equal access to the President

throughout in delivering their respective messages.

This situation was unsettled when President Bush made

a spur-of-the-moment decision to stop for dinner at the

Jacksonville Inn before proceeding to the cottage. The Inn

stands on the north side of California Street, on the block

where the protesters had assembled. Learning of the

President’s change in plans, the protesters moved along

the block to face the Inn. The respective positions of the

protesters and supporters at the time the President ar-

rived at the Inn are shown on the following map, which

the protesters attached as an exhibit to their complaint:1

——————

1 App. to Brief for Petitioners (Diagram A).

4 WOOD v. MOSS

Opinion of the Court

As the map indicates, the protesters massed on the

sidewalk directly in front of the Inn, while the supporters

remained assembled on the block west of Third Street,

Cite as: 572 U. S. ____ (2014) 5

Opinion of the Court

some distance from the Inn. The map also shows an alley

running along the east side of the Inn (the California

Street alley) leading to an outdoor patio used by the Inn’s

restaurant as a dining area. A six-foot high wooden fence

surrounded the patio. At the location where the Presi-

dent’s supporters gathered, a large two-story building, the

U. S. Hotel, extended north around the corner of Califor-

nia and Third Streets. That structure blocked sight of,

and weapons access to, the patio from points on California

Street west of the Inn.

Petitioners are two Secret Service agents (the agents)

responsible for the President’s security during the Jack-

sonville visit. Shortly after 7:00 p.m. on the evening in

question, the agents enlisted the aid of local police officers

to secure the area for the President’s unexpected stop at

the Inn. Following the agents’ instructions, the local

officers first cleared the alley running from Third Street to

the patio (the Third Street alley), which the President’s

motorcade would use to access the Inn. The officers then

cleared Third Street north of California Street, as well as

the California Street alley.

At around 7:15 p.m., the President arrived at the Inn.

As the motorcade entered the Third Street alley, both sets

of demonstrators were equally within the President’s sight

and hearing. When the President reached the outdoor

patio dining area, the protesters stood on the sidewalk

directly in front of the California Street alley, exhibiting

signs and chanting slogans critical of the President and

his policies. In view of the short distance between Cali-

fornia Street and the patio, the protesters no longer con-

test that they were then within weapons range of the

President. See Tr. of Oral Arg. 3–4, 35, 39–40; Brief for

Petitioners 44.

Approximately 15 minutes later, the agents directed the

officers to clear the protesters from the block in front of

the Inn and move them to the east side of Fourth Street.

6 WOOD v. MOSS

Opinion of the Court

From their new location, the protesters were roughly the

same distance from the President as the supporters. But

unlike the supporters, whose sight and access were ob-

structed by the U. S. Hotel, only a parking lot separated

the protesters from the patio. The protesters thus re-

mained within weapons range of, and had a direct line of

sight to, the President’s location. This sight line is illus-

trated by the broken arrow marked on the map below.2

——————

2 This map appears as an appendix to the agents’ opening brief. See

App. to Brief for Petitioners (Diagram B). Except for the arrow, Dia-

gram B is identical to the map included in the protesters’ complaint.

Cite as: 572 U. S. ____ (2014) 7

Opinion of the Court

After another 15 minutes passed, the agents directed

the officers again to move the protesters, this time one

block farther away from the Inn, to the east side of Fifth

8 WOOD v. MOSS

Opinion of the Court

Street. The relocation was necessary, the agents told the

local officers, to ensure that no demonstrator would be

“within handgun or explosive range of the President.”

App. to Pet. for Cert. 177a. The agents, however, did not

require the guests already inside the Inn to leave, stay

clear of the patio, or go through any security screening.

The supporters at all times retained their original location

on the west side of Third Street.

After the President dined, the motorcade left the Inn by

traveling south on Third Street toward the cottage. On its

way, the motorcade passed the President’s supporters.

The protesters remained on Fifth Street, two blocks away

from the motorcade’s route, thus beyond the President’s

sight and hearing.

B

The protesters sued the agents for damages in the U. S.

District Court for the District of Oregon. The agents’

actions, the complaint asserted, violated the protesters’

First Amendment rights by the manner in which the

agents established a security perimeter around the Presi-

dent during his unscheduled stop for dinner. See Bivens v.

Six Unknown Fed. Narcotics Agents, 403 U. S. 388 (1971)

(recognizing claim for damages against federal agents for

violations of plaintiff ’s Fourth Amendment rights).3 Spe-

cifically, the protesters alleged that the agents engaged in

viewpoint discrimination when they moved the protesters

away from the Inn, while allowing the supporters to re-

main in their original location.

The agents moved to dismiss the complaint on the

ground that the protesters’ allegations were insufficient to

——————

3 The protesters’ complaint also asserted claims against local police

officers for using excessive force in violation of the Fourth Amendment.

Those claims were dismissed for failure to state a claim, see Moss v.

United States Secret Serv., 711 F. 3d 941, 954 (CA9 2013), and are not

at issue here.

Cite as: 572 U. S. ____ (2014) 9

Opinion of the Court

state a claim for violation of the First Amendment. The

agents further maintained that they were sheltered by

qualified immunity because the constitutional right al-

leged by the protesters was not clearly established.

The District Court denied the motion, see Moss v. United

States Secret Serv., 2007 WL 2915608, *1, 20 (D Ore., Oct.

7, 2007), but on interlocutory appeal,4 the U. S. Court of

Appeals for the Ninth Circuit reversed. See Moss v. United

States Secret Serv., 572 F. 3d 962 (2009). The facts alleged

in the complaint, the Court of Appeals held, were insuffi-

cient to state a First Amendment claim under the pleading

standards prescribed in Bell Atlantic Corp. v. Twombly,

550 U. S. 544 (2007), and Ashcroft v. Iqbal, 556 U. S. 662

(2009). 572 F. 3d, at 974–975.5 Because Twombly and

Iqbal were decided after the protesters filed their com-

plaint, however, the Ninth Circuit instructed the District

Court to grant the protesters leave to amend. 572 F. 3d,

at 972.

On remand, the protesters supplemented their com-

plaint with allegations that the agents acted pursuant to

an “actual but unwritten” Secret Service policy of

“work[ing] with the White House under President Bush to

eliminate dissent and protest from presidential appear-

ances.” App. to Pet. for Cert. 184a. Relying on published

media reports, the protesters’ amended complaint cited

several instances in which other Secret Service agents

allegedly engaged in conduct designed to suppress expres-

sion critical of President Bush at his public appearances.

——————

4 We have repeatedly “stressed the importance of resolving immunity

questions at the earliest possible stage [of the] litigation,” Hunter v.

Bryant, 502 U. S. 224, 227 (1991) (per curiam).

5 In ruling on a motion to dismiss, we have instructed, courts “must

take all of the factual allegations in the complaint as true,” but “are not

bound to accept as true a legal conclusion couched as a factual allega-

tion.” Ashcroft v. Iqbal, 556 U. S. 662, 678 (2009) (internal quotation

marks omitted).

10 WOOD v. MOSS

Opinion of the Court

The amended complaint also included an excerpt from a

White House manual instructing the President’s advance

team to “work with the Secret Service and have them ask

the local police department to designate a protest area

where demonstrators can be placed; preferably not in view

of the event site or motorcade route.” Id., at 219a. See

also id., at 183a.

The agents renewed their motion to dismiss the suit for

failure to state a claim and on qualified immunity

grounds. The District Court denied the motion, holding

that the complaint adequately alleged a violation of the

First Amendment, and that the constitutional right as-

serted was clearly established. Moss v. United States

Secret Serv., 750 F. Supp. 2d 1197, 1216–1228 (Ore. 2010).

The agents again sought an interlocutory appeal.

This time, the Ninth Circuit affirmed, 711 F. 3d 941,

satisfied that the amended pleading plausibly alleged that

the agents “sought to suppress [the protesters’] political

speech” based on the viewpoint they expressed, id., at 958.

Viewpoint-driven conduct, the Court of Appeals main-

tained, could be inferred from the absence of a legitimate

security rationale for “the differential treatment” accorded

the two groups of demonstrators. See id., at 946. The

Court of Appeals further held that the agents were not

entitled to qualified immunity because this Court’s prece-

dent “make[s] clear . . . ‘that the government may not

regulate speech based on its substantive content or the

message it conveys.’ ” Id., at 963 (quoting Rosenberger,

515 U. S., at 828).

The agents petitioned for rehearing and rehearing en

banc, urging that the panel erred in finding the alleged

constitutional violation clearly established. Over the

dissent of eight judges, the Ninth Circuit denied the en

banc petition. See 711 F. 3d, at 947 (O’Scannlain, J.,

dissenting from denial of rehearing en banc). We granted

certiorari. 571 U. S. ___ (2013).

Cite as: 572 U. S. ____ (2014) 11

Opinion of the Court

II

A

It is uncontested and uncontestable that government

officials may not exclude from public places persons en-

gaged in peaceful expressive activity solely because the

government actor fears, dislikes, or disagrees with the

views those persons express. See, e.g., Police Dept. of

Chicago v. Mosley, 408 U. S. 92, 96 (1972). It is equally

plain that the fundamental right to speak secured by the

First Amendment does not leave people at liberty to pub-

licize their views “ ‘whenever and however and wher-

ever they please.’ ” United States v. Grace, 461 U. S. 171,

177–178 (1983) (quoting Adderly v. Florida, 385 U. S.

39, 48 (1966)). Our decision in this case starts from those

premises.

The particular question before us is whether the pro-

testers have alleged violation of a clearly established First

Amendment right based on the agents’ decision to order

the protesters moved from their original location in front

of the Inn, first to the block just east of the Inn, and then

another block farther. We note, initially, an antecedent

issue: Does the First Amendment give rise to an implied

right of action for damages against federal officers who

violate that Amendment’s guarantees? In Bivens, cited

supra, at 8, we recognized an implied right of action

against federal officers for violations of the Fourth

Amendment. Thereafter, we have several times assumed

without deciding that Bivens extends to First Amendment

claims. See, e.g., Iqbal, 556 U. S., at 675. We do so again

in this case. See Tr. of Oral Arg. 10–11 (counsel for peti-

tioners observed that the implication of a right to sue

derived from the First Amendment itself was an issue “not

preserved below” and therefore “not presented” in this

Court).

The doctrine of qualified immunity protects government

officials from liability for civil damages “unless a plaintiff

12 WOOD v. MOSS

Opinion of the Court

pleads facts showing (1) that the official violated a statu-

tory or constitutional right, and (2) that the right was

‘clearly established’ at the time of the challenged conduct.”

Ashcroft v. al-Kidd, 563 U. S. ___, ___ (2011) (slip op., at

3). And under the governing pleading standard, the “com-

plaint must contain sufficient factual matter, accepted as

true, to state a claim to relief that is plausible on its face.”

Iqbal, 556 U. S., at 678 (internal quotation marks omit-

ted). Requiring the alleged violation of law to be “clearly

established” “balances . . . the need to hold public officials

accountable when they exercise power irresponsibly and

the need to shield officials from harassment, distraction,

and liability when they perform their duties reasonably.”

Pearson v. Callahan, 555 U. S. 223, 231 (2009). The “dis-

positive inquiry,” we have said, “is whether it would [have

been] clear to a reasonable officer” in the agents’ position

“that [their] conduct was unlawful in the situation [they]

confronted.” Saucier v. Katz, 533 U. S. 194, 202 (2001).

At the time of the Jacksonville incident, this Court had

addressed a constitutional challenge to Secret Service

actions on only one occasion.6 In Hunter v. Bryant, 502

U. S. 224 (1991) (per curiam), the plaintiff sued two Secret

Service agents alleging that they arrested him without

probable cause for writing and delivering to two Univer-

sity of Southern California offices a letter referring to a

plot to assassinate President Ronald Reagan. We held that

qualified immunity shielded the agents from claims that

the arrest violated the plaintiff ’s rights under the Fourth,

Fifth, Sixth, and Fourteenth Amendments. “[N]owhere,”

we stated, is “accommodation for reasonable error . . .

——————

6 Subsequent to the incident at issue here, we held in Reichle v. How-

ards, 566 U. S. ___, ___ (2012) (slip op., at 1), that two Secret Service

agents were “immune from suit for allegedly arresting a suspect in

retaliation for [negative comments he made about Vice President

Cheney], when the agents had probable cause to arrest the suspect for

committing a federal crime.”

Cite as: 572 U. S. ____ (2014) 13

Opinion of the Court

more important than when the specter of Presidential

assassination is raised.” Id., at 229.

In other contexts, we have similarly recognized the

Nation’s “valid, even . . . overwhelming, interest in protect-

ing the safety of its Chief Executive.” Watts, 394 U. S., at

707. See also Rubin v. United States, 525 U. S. 990, 990–

991 (1998) (BREYER, J., dissenting from denial of certio-

rari) (“The physical security of the President of the United

States has a special legal role to play in our constitutional

system.”). Mindful that “[o]fficers assigned to protect

public officials must make singularly swift, on the spot,

decisions whether the safety of the person they are guard-

ing is in jeopardy,” Reichle v. Howards, 566 U. S. ___, ___

(2012) (GINSBURG, J., concurring in judgment) (slip op., at

2), we address the key question: Should it have been clear

to the agents that the security perimeter they established

violated the First Amendment?

B

The protesters assert that it violated clearly established

First Amendment law to deny them “equal access to the

President,” App. Pet. for Cert. 175a, during his dinner at

the Inn and subsequent drive to the cottage, id., at 185a.7

The Court of Appeals agreed, holding that the agents

violated clearly established law by moving the protesters

to a location that “was in relevant ways not comparable to

the place where the pro-Bush group was allowed to re-

main.” 711 F. 3d, at 946 (internal quotation marks and

ellipsis omitted). The Ninth Circuit did not deny that

security concerns justified “mov[ing] the anti-Bush pro-

——————

7 The protesters, however, do not maintain that “the First Amend-

ment entitled them to be returned to their original location after the

President’s dinner and before his motorcade departed.” Brief for

Respondents 39–40, n. 7. They urge only that “it was constitutionally

improper to move them in the first place.” Id., at 40, n. 7; see Tr. of

Oral Arg. 50 (same).

14 WOOD v. MOSS

Opinion of the Court

testers somewhere.” Ibid. But, the court determined, no

reason was shown for “the considerable disparity in the

distance each group was allowed to stand from the Presi-

dential party.” Ibid. The agents thus offended the First

Amendment, in the Court of Appeals’ view, because their

directions to the local officers placed the protesters at a

“comparativ[e] disadvantag[e] in expressing their views”

to the President. Ibid.

No decision of which we are aware, however, would alert

Secret Service agents engaged in crowd control that they

bear a First Amendment obligation “to ensure that groups

with different viewpoints are at comparable locations at

all times.” Id., at 952 (O’Scannlain, J., dissenting from

denial of rehearing en banc). Nor would the maintenance

of equal access make sense in the situation the agents

confronted.

Recall that at the protesters’ location on the north side

of California Street, see supra, at 4, they faced an alley

giving them a direct line of sight to the outdoor patio

where the President stopped to dine. The first move, to

the corner of Fourth and California Streets, proved no

solution, for there, only a parking lot stood between the

protesters and the patio. True, at both locations, a six-foot

wooden fence and an unspecified number of local police

officers impeded access to the President. Even so, 200 to

300 protesters were within weapons range, and had a

largely unobstructed view, of the President’s location. See

Tr. of Oral Arg. 41 (counsel for respondents acknowledged

that “in hindsight, you could . . . conclude” that “proximity

[of the protesters to the President] alone . . . is enough to

create a security [risk]”). See also Eggen & Fletcher, FBI:

Grenade Was a Threat to Bush, Washington Post, May 19,

2005, p. A1 (reporting that a live grenade thrown at Presi-

dent Bush in 2005, had it detonated, could have injured

him from 100 feet away).

The protesters suggest that the agents could have

Cite as: 572 U. S. ____ (2014) 15

Opinion of the Court

moved the President’s supporters further to the west so

that they would not be in range of the President when the

motorcade drove from the Inn to the cottage where the

President would stay overnight. See App. Pet. for Cert.

178a. As earlier explained, however, see supra, at 4–5,

there would have been no security rationale for such a

move. In contrast to the open alley and parking lot on the

east side of the Inn, to the west of the Inn where the sup-

porters stood, a large, two-story building blocked sight of,

or weapons access to, the patio the agents endeavored to

secure.8 No clearly established law, we agree, required the

Secret Service “to interfere with even more speech than

security concerns would require in an attempt to keep

opposing groups at roughly equal distances from the Pres-

ident.” Brief for Petitioners 32. And surely no such law

required the agents to attempt to maintain equal dis-

tances by “prevail[ing] upon the President not to dine at the

Inn.” Oral Arg. Audio in No. 10–36152 (CA9) 42:22 to 43:36

(argument by protesters’ counsel), available at http://

www.ca9.uscourts.gov/media/view.php?pk_id=0000008129.

(as visited May 19, 2014, and in Clerk of Court’s case file)

(argument tendered by protesters’ counsel).

III

The protesters allege that, when the agents directed

their displacement, the agents acted not to ensure the

President’s safety from handguns or explosive devices.

——————

8 Neither side contends that the presence of demonstrators along the

President’s motorcade route posed an unmanageable security risk, or

that there would have been a legitimate security rationale for removing

the protesters, but not the supporters, from the motorcade route. The

President’s detour for dinner, however, set the two groups apart. “[T]he

security concerns arising from the presence of a large group of people

near the open-air patio where the President was dining were plainly

different from those associated with permitting a group . . . to remain

along Third Street while the President’s [armored limousine] traveled

by.” Brief for Petitioners 46.

16 WOOD v. MOSS

Opinion of the Court

Instead, the protesters urge, the agents had them moved

solely to insulate the President from their message, thereby

giving the President’s supporters greater visibility and

audibility. See Tr. of Oral Arg. 35–36. The Ninth Circuit

found sufficient the protesters’ allegations that the agents

“acted with the sole intent to discriminate against [the

protesters] because of their viewpoint”. 711 F. 3d, at 964.

Accordingly, the Court of Appeals “allow[ed] the protes-

tors’ claim of viewpoint discrimination to proceed.” Id., at

962.

It may be, the agents acknowledged, that clearly estab-

lished law proscribed the Secret Service from disadvantag-

ing one group of speakers in comparison to another if the

agents had “no objectively reasonable security rationale”

for their conduct, but acted solely to inhibit the expression

of disfavored views. See Tr. of Oral Arg. 28–29; Brief for

Petitioners 52 (entitlement to relief might have been

established if, for example, “the pro-Bush group had . . .

been allowed to move into the nearer location that the

anti-Bush had vacated”). We agree with the agents, how-

ever, that the map itself, reproduced supra, at 4, under-

mines the protesters’ allegations of viewpoint discrimina-

tion as the sole reason for the agents’ directions. The map

corroborates that, because of their location, the protesters

posed a potential security risk to the President, while the

supporters, because of their location, did not.

The protesters make three arguments to shore up their

charge that the agents’ asserted security concerns are

disingenuous. First, the protesters urge that, had the

agents’ professed interest in the President’s safety been

sincere, the agents would have directed all persons pres-

ent at the Inn to be screened or removed from the prem-

ises. See Brief for Respondents 27. But staff, other din-

ers, and Inn guests were there even before the agents

themselves knew that the President would dine at the Inn.

See Brief for Petitioners 47. Those already at the Inn

Cite as: 572 U. S. ____ (2014) 17

Opinion of the Court

“could not have had any expectation that they would see

the President that evening or any opportunity to premedi-

tate a plan to cause him harm.” Reply Brief 16. The

Secret Service, moreover, could take measures to ensure

that the relatively small number of people already inside

the Inn were kept under close watch; no similar surveil-

lance would have been possible for 200 to 300 people

congregating in front of the Inn. See ibid.

The protesters also point to a White House manual,

which states that the President’s advance team should

“work with the Secret Service . . . to designate a protest

area . . . preferably not in view of the event site or motor-

cade route.” App. to Pet. for Cert. 219a. This manual

guides the conduct of the President’s political advance

team. See id., at 220a (distinguishing between the politi-

cal role of the advance team and the security mission of

the Secret Service).9 As the complaint acknowledges, the

Secret Service has its own “written guidelines, directives,

instructions and rules.” Id., at 184a. Those guides explic-

itly “prohibit Secret Service agents from discriminating

between anti-government and pro-government demonstra-

tors.” Ibid.

The protesters maintain that the Secret Service does not

adhere to its own written guides. They recite several

instances in which Secret Service agents allegedly en-

gaged in viewpoint discrimination. See id., at 189a–194a.

Even accepting as true the submission that Secret Service

agents, at times, have assisted in shielding the President

from political speech, this case is scarcely one in which the

agents acted “without a valid security reason.” Brief for

——————

9 “An ‘advance man’ is ‘[o]ne who arranges for publicity, protocol,

transportation, speaking schedules, conferences with local government

officials, and minute details of a visit, smoothing the way for a political

figure.’ ” See 711 F. 3d, at 950, n. 2 (O’Scannlain, J., dissenting from

denial of rehearing en banc) (quoting W. Safire, Safire’s Political

Dictionary 8 (5th ed. 2008)).

18 WOOD v. MOSS

Opinion of the Court

Respondents 40. We emphasize, again, that the protesters

were at least as close to the President as were the sup-

porters when the motorcade arrived at the Jacksonville

Inn. See supra, at 5. And as the map attached to the

complaint shows, see supra, at 4, when the President

reached the patio to dine, the protesters, but not the sup-

porters, were within weapons range of his location. See

supra, at 14. Given that situation, the protesters cannot

plausibly urge that the agents “had no valid security

reason to request or order the[ir] eviction.” App. to Pet.

for Cert. 186a.

We note, moreover, that individual government officials

“cannot be held liable” in a Bivens suit “unless they them-

selves acted [unconstitutionally].” Iqbal, 556 U. S., at 683.

We therefore decline to infer from alleged instances of

misconduct on the part of particular agents an unwritten

policy of the Secret Service to suppress disfavored expres-

sion, and then to attribute that supposed policy to all field-

level operatives. See Reply Brief 20.

* * *

This case comes to us on the agents’ petition to review

the Ninth Circuit’s denial of their qualified immunity

defense. See Tr. of Oral Arg. 10 (petitioners’ briefing on

appeal trained on the issue of qualified immunity). Limit-

ing our decision to that question, we hold, for the reasons

stated, that the agents are entitled to qualified immunity.

Accordingly, we reverse the judgment of the Court of

Appeals.

It is so ordered.