Weise v. Casper

FILED
United States Court of Appeals
Tenth Circuit

January 27, 2010
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

LESLIE WEISE; ALEX YOUNG,

Plaintiffs - Appellants,

v. No. 09-1085

MICHAEL CASPER, in his individual
capacity; JAY BOB KLINKERMAN,
in his individual capacity,

Defendants - Appellees,

and

GREG JENKINS, in his individual
capacity; STEVEN A. ATKISS, in his
individual capacity; JAMES A.
O’KEEFE, in his individual capacity
and JOHN/JANE DOES 1-2, both in
their individual capacities,

Defendants.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
(D.C. No. 05-CV-02355-WYD-CBS)

Christopher Hansen (and Catherine Crump of American Civil Liberties Union,
New York, New York; Mark Silverstein of American Civil Liberties Union of
Colorado, Denver, Colorado; Martha M. Tierney and Jerremy M. Ramp of Kelly,
Haglund, Garnsey & Kahn, L.L.C, In cooperation with the ACLU Foundation of
Colorado, Denver, Colorado, on the briefs), for Plaintiffs - Appellants.
Sean Gallagher (and Dugan Bliss of Hogan & Hartson, L.L.P., with him on the
brief), Denver, Colorado, for Appellee Casper.

Brett Lilly of Brett R. Lilly, L.L.C.,Wheat Ridge, Colorado, (John S. Zakhem and
Matthew Cassady of Zakhem & Atherton, L.L.C., Denver, Colorado, on the brief),
for Appellee Klinkerman.

Before TACHA, HOLLOWAY, and KELLY, Circuit Judges.

KELLY, Circuit Judge.

Plaintiffs-Appellants Leslie Weise and Alex Young appeal from the district

court’s dismissal of their Bivens complaint against certain defendants. Mr. Weise

and Ms. Young brought this action claiming violations of their First Amendment

rights. In ruling on pretrial motions, the district court held that Defendants-

Appellees Michael Casper and Jay Bob Klinkerman were entitled to qualified

immunity. Weise v. Casper, No. 05-cv-02355-WYD-CBS, 2008 WL 4838682 (D.

Colo. Nov. 6, 2008). At the parties’ request, it then certified its order as a final

order pursuant to Fed. R. Civ. P. 54(b). Aplt. App. 152-53. Our jurisdiction

arises under 28 U.S.C. § 1291. Because the constitutional right asserted by the

Plaintiffs was not clearly established at the time of the alleged violation, we

affirm the grant of qualified immunity.

Background

Although our prior decision in this case set out most of the operative facts,

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Weise v. Casper, 507 F.3d 1260, 1262-63 (10th Cir. 2007), later proceedings have

better developed the factual record.

The Plaintiffs’ suit arises from their attendance at President George W.

Bush’s March 21, 2005 speech at the Wings Over the Rockies Museum. Aplt.

App. 16. The President’s speech was an official government event, funded by the

government. Id. White House policies and procedures established who could

attend. Id. Sometime before the President’s speech, the White House Advance

Office established a policy of excluding those who disagree with the President

from the President’s official public appearances. Id. at 18. The Defendants were

present at the event, carrying out the White House’s instructions and policies. Id.

at 20.

The White House made tickets available to any member of the public.

Aplt. App. 16. The Plaintiffs obtained tickets from the office of Congressman

Bob Beauprez by showing their driver’s licenses and writing down their names.

Id. On March 21, 2005, Ms. Weise and Mr. Young drove to the event in Ms.

Weise’s vehicle, which sported a “No More Blood For Oil” bumper sticker. Id. at

17.

Although Mr. Young passed through security without incident, Mr.

Klinkerman, a volunteer working for the White House, approached Ms. Weise and

told her that she had to wait for the Secret Service to speak with her. Aplt. App.

17. Mr. Casper arrived minutes later wearing a suit, earpiece, and lapel pin. Id.

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at 18. Mr. Casper told Ms. Weise that “she had been ‘ID’d’” based on the bumper

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.” Id.

Mr. Casper let Ms. Weise into the event, but then consulted with

Defendants Steven A. Atkiss and James A. O’Keefe, White House Advance

Office employees. Aplt. App. 165. Mr. Atkiss and Mr. O’Keefe instructed Mr.

Casper to eject Plaintiffs from the event. Id. Mr. Casper then approached

Plaintiffs at their seats and asked them to leave. Id. at 19. Plaintiffs were

escorted from the event and not allowed to reenter. Id. at 19-20. The Secret

Service confirmed to Plaintiffs that they were asked to leave because of the

bumper sticker on Ms. Weise’s vehicle. Id. at 20, 166-67.

Plaintiffs claim that they never disrupted the event, intended to disrupt the

event, or indicated that they would disrupt the event. Aplt. App. 20. Mr. Young

would have asked the President a question, if given the opportunity. Id. at 17.

This case is before us for the second time. In the first appeal, Defendants

challenged the district court’s denial of qualified immunity. Weise, 507 F.3d at

1261. Because a factual question existed as to whether Defendants could assert

the qualified immunity defense, we dismissed the interlocutory appeal for lack of

jurisdiction. Id. at 1264-68.

While the first appeal was pending, Plaintiffs deposed Mr. Casper and Mr.

Klinkerman, revealing the roles of Defendants Jenkins, Atkiss, and O’Keefe.

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Aplt. Br. at 6; Aplt. App. 10. Because the statute of limitations was about to run,

Plaintiffs filed a separate suit against these three Defendants, which was later

consolidated into the original suit against Mr. Casper and Mr. Klinkerman. Aplt.

Br. at 6; Aplt. App. 10. When the case returned to the district court, Mr.Casper

and Mr. Klinkerman again filed motions to dismiss based on qualified immunity.

Aplt. App. 23-56. The discovery obtained since the first motion to dismiss

resolved the outstanding factual question and demonstrated that Mr. Casper and

Mr. Klinkerman were governmental actors entitled to invoke the defense of

qualified immunity. Weise, 2008 WL 4838682, at *5. The district court then

granted Mr. Casper and Mr. Klinkerman’s motions to dismiss based on qualified

immunity. Aplt. App. 150-51. It also granted Defendant Jenkins’s motion to

dismiss for lack of personal jurisdiction. Id.

Discussion

This court reviews de novo a district court’s grant of a motion to dismiss

based on qualified immunity. Gann v. Cline, 519 F.3d 1090, 1092 (10th Cir.

2008). Well-pleaded factual allegations are taken as true, but a court must also

consider whether “they plausibly give rise to an entitlement to relief.” Ashcroft

v. Iqbal, 129 S. Ct. 1937, 1949-50 (2009). Dismissal is not appropriate where

“the complaint contains ‘enough facts to state a claim to relief that is plausible on

its face.’” Ridge at Red Hawk, L.L.C. v. Schneider, 493 F.3d 1174, 1177 (10th

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Cir. 2007) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

Facial plausibility requires sufficient factual content (as opposed to legal

conclusions) suggesting “that the defendant is liable for the misconduct alleged.”

Iqbal, 129 S. Ct. at 1949.

A preliminary question is whether Defendants, as volunteers acting under

close government supervision, may assert the defense of qualified immunity.

Before the first appeal, the district court held that Defendants could assert

qualified immunity if they were acting under the close supervision of federal

officials. Weise v. Casper, No. 05-cv-02355-WYD-CBS, 2006 WL 3093133, at

*4 (D. Colo. Oct. 30, 2006). Plaintiffs concede that Defendants acted under the

close supervision of White House officials at the Wings Over the Rockies event.

Aplt. App. 16-21, 58; Weise, 2008 WL 4838682, at *5. On appeal, Plaintiffs do

not challenge Defendants’ assertion of the qualified immunity defense.

Therefore, it is unnecessary to reach the issue.

Qualified immunity “protects governmental officials from liability for civil

damages insofar as their conduct does not violate ‘clearly established statutory or

constitutional rights of which a reasonable person would have known.’” Pearson

v. Callahan, 129 S. Ct. 808, 815 (2009) (quoting Harlow v. Fitzgerald, 457 U.S.

800, 818 (1982)). The qualified immunity inquiry has two prongs: whether a

constitutional violation occurred, and whether the violated right was “clearly

established” at the time of the violation. Pearson, 129 S. Ct. at 816.

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 In their discretion, courts are free to decide which prong to address first “in

light of the circumstances of the particular case at hand.” Pearson, 129 S. Ct. at

818. The Pearson Court recognized that skipping the constitutional violation

question may conserve judicial resources in “cases in which it is plain that a

constitutional right is not clearly established but far from obvious whether in fact

there is such a right.” Id. Some cases are so fact-bound that deciding the

constitutional question offers “little guidance for further cases.” Id. at 819.

Further, proceeding directly to the “clearly established” question may avoid the

risk of deciding a case incorrectly given insufficient briefing on the constitutional

violation question. Id. at 820. Although it is unclear whether Defendants’

alleged conduct violated Plaintiffs’ constitutional rights, it is obvious that the

rights were not clearly established at the time of the violation.

“[F]or a right to be clearly established, ‘there must be a Supreme Court or

Tenth Circuit decision on point, or the clearly established weight of authority

from other courts must have found the law to be as the plaintiff maintains.’”

Cortez v. McCauley, 478 F.3d 1108, 1114-15 (10th Cir. 2006) (en banc) (quoting

Medina v. City of Denver, 960 F.2d 1493, 1498 (10th Cir. 1992)). The qualified

immunity doctrine does not require a case exactly on point. “Clearly established”

does not mean “that an official action is protected by qualified immunity unless

the very action in question has previously been held unlawful, but it is to say that

in the light of pre-existing law the unlawfulness must be apparent.” Anderson v.

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Creighton, 483 U.S. 635, 640 (1987); see also Hope v. Pelzer, 536 U.S. 730, 741

(2002) (“officials can still be on notice that their conduct violates established law

even in novel factual circumstances”). Qualified immunity protects “all but the

plainly incompetent or those who knowingly violated the law.” Morse v.

Frederick, 551 U.S. 393, 429 (2007) (citations and internal quotation marks

omitted).

The district court held that Defendants did not violate Plaintiffs’

constitutional rights and, alternatively, that Plaintiffs had not shown that any such

rights were clearly established. Weise, 2008 WL 4838682, at *7-8. Concerning

the “clearly established” question, the district court stated: “Plaintiffs do not cite

any Tenth Circuit or Supreme Court case that defines the contours of this right as

it applies to a situation in which the President, speaking in a limited private forum

or limited nonpublic forum, excludes persons for the reasons identified in this

Order.” Id. at *8. According to Plaintiffs, it “is clearly established First

Amendment law that individuals have a right to be free from discrimination based

on viewpoint.” Aplt. Br. at 9. Stated more precisely, “the government cannot

engage in viewpoint discrimination.” Id. at 18.

At the most general level, Plaintiffs are correct that the government usually

cannot discriminate against a speaker based upon that speaker’s viewpoint. But

in qualified immunity cases, except in the most obvious cases, broad, general

propositions of law are insufficient to suggest clearly established law. See

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Brousseau v. Hagan, 543 U.S. 194, 198-99 (2004) (per curiam). That is because

the clearly established law must be such that it would put a reasonable official on

notice that his conduct was unlawful. Id. That is particularly true here. Beyond

the abstract principle that the government ordinarily cannot discriminate based

upon viewpoint, however, a First Amendment claim must be situated somewhere

within the free speech jurisprudence because we accord speech various levels of

protection depending upon the nature of the speech, the speaker, and the setting.

See, e.g., Pleasant Grove City v. Summum, 129 S. Ct. 1125, 1138 (2009) (because

government speech “is not subject to the Free Speech Clause,” the government as

speaker can discriminate on the basis of viewpoint); Perry Educ. Ass’n v. Perry

Local Educators’ Ass’n, 460 U.S. 37, 45-46 (1983) (recognizing three types of

public fora and varying levels of speech protection depending on the forum);

Central Hudson Gas & Elec. Corp. v. Public Serv. Comm’n, 447 U.S. 557, 566

(1980) (government regulation of truthful, non-misleading commercial speech

regarding lawful activity must directly advance a substantial governmental

interest, and the regulation must be no more extensive than necessary to serve that

interest); New York Times v. Sullivan, 376 U.S. 254, 279-80 (1964) (public

official cannot recover damages for libel unless he proves falsity and actual

malice).

Plaintiffs simply have not identified any First Amendment doctrine that

prohibits the government from excluding them from an official speech on private

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property on the basis of their viewpoint. For the First Amendment to bar the

government from taking action against a speaker, the speaker’s activity in

question must be (1) speech and (2) protected. First, the speech at issue, the

bumper sticker on Ms. Weise’s car, occurred outside the event. However,

Defendants did not suppress Plaintiffs’ bumper sticker speech nor did the

government prosecute Plaintiffs for the speech. 1 At the event itself, Plaintiffs

1
Thus, this case differs from Glasson v. City of Louisville, 518 F.2d 899,
902 (6th Cir. 1975), where a police officer took a sign critical of the President
and tore it up, thereby suppressing the plaintiff’s speech.

The dissent insists that this case is about “the exercise of First Amendment
rights embodied in Ms. Wiese’s bumper sticker.” First, the issue on appeal as
framed by the Plaintiffs is whether the President has a right to exclude from his
appearances those who disagree with his policies and whether it is clearly
established that individuals have a right to be free from viewpoint discrimination.
Aplt. Br. at 9, 13-14, 20. Aside from law on viewpoint discrimination, framing
the issue in this manner implicates the intersection of the President’s rights as a
speaker under the government speech doctrine, his rights to expressive
association, and the nature of the forum. Second, such a formulation suggests the
case really should have been structured as a First Amendment retaliation
case—Plaintiffs were not allowed to attend in retaliation for the constitutionally
protected speech on the bumper sticker. See Worrell v. Henry, 219 F.3d 1197,
1212 (10th Cir. 2000) (requiring that a plaintiff (1) be engaged in constitutionally
protected activity; (2) suffer an injury that would chill a person of ordinary
firmness from continuing to engage in that activity; and (3) defendants’ actions
were motivated by plaintiffs’ protected activity). No such argument appears in
the briefs. The potential relevance of these doctrines reveals that the proper
categorization of this case is far more complicated than the dissent acknowledges
and that Plaintiffs’ rights are far from clearly established.

Of course, when it comes to qualified immunity, merely stating that the
government cannot engage in viewpoint discrimination is just about as general as
stating that the government cannot engage in unreasonable searches and
(continued...)

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were “not speakers at all,” as their counsel conceded at oral argument, but rather

attendees. They did not intend to speak at the President’s speech. 2 Although

Defendants ejected them from the event on the basis of their speech outside the

event, Plaintiffs have identified no authority suggesting that mere attendance is

transformed into speech or even expressive activity because of their speech

elsewhere.

Second, Plaintiffs have not put forth any authority establishing that their

presence at the President’s speech was protected. In arguing that Defendants’

actions violated clearly established constitutional rights, Plaintiffs offer various

First Amendment cases holding that the “government cannot engage in viewpoint

discrimination.” Aplt. Br. at 18-20 (citing, among others, Kingsley Int’l Pictures

Corp. v. Regents of the Univ. of the State of N.Y., 360 U.S. 684 (1959) (state

could not bar exhibition of non-obscene film advocating adultery); Schacht v.

1
(...continued)
seizures—an approach that is too general for the qualified immunity analysis
where a plaintiff has the burden of demonstrating not only a constitutional
violation, but also a violation of clearly established law. Compare Aplt. Reply
Br. at 8 (“public forum analysis is irrelevant in this case because viewpoint
discrimination is impermissible in any forum.”) with Anderson v. Creighton, 483
U.S. 635, 639-41 (1987) (a formulation that warrantless searches are not
permitted absent probable cause and exigent circumstances is too general for
qualified immunity purposes).
2
Plaintiffs have not argued that Mr. Young’s desire to ask a question if
given the opportunity confers any additional First Amendment protections to their
presence at the speech. Rather, they argue, their mere presence at an official
Presidential speech, open to the public, was protected by the First Amendment.

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United States, 398 U.S. 58 (1970) (reversing conviction for wearing military

uniform without authority where defendant had worn uniform in theatrical

production opposed to the Vietnam War); Lamb’s Chapel v. Center Moriches

Union Free Sch. Dist., 508 U.S. 384 (1993) (school district could not exclude

religious groups from using school property when not in use for school purposes);

see also Aplt. Reply Br. at 10-11 (citing Rosenberger v. Rector & Visitors of the

Univ. of Va., 515 U.S. 819 (1995) (state university could not exclude religious

groups from limited public speech forum); R.A.V. v. City of St. Paul, 505 U.S.

377 (1992) (invalidating as viewpoint discrimination a city ordinance prohibiting

burning crosses or swastikas or other symbols, etc., that would arouse anger on

the basis of race, color, creed, religion or gender); Texas v. Johnson, 491 U.S.

397 (1989) (affirming reversal of conviction for flag-burning); Niemotko v.

Maryland, 340 U.S. 268 (1951) (religious speech in a public park); Mesa v.

White, 197 F.3d 1041 (10th Cir. 1999) (public comment period of public

meeting)). These and other cases that Plaintiffs cite bear a common feature:

speech that is protected for some reason. This discussion of impermissible

viewpoint discrimination does not amount to clearly established law that provides

guidance in these circumstances.

In this context, however, Plaintiffs briefly attempt to remedy that,

presenting some factually similar cases in which persons with opposing

viewpoints were excluded from Presidential events. Aplt. Br. at 15-17, 21-22

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(citing Mahoney v. Babbitt, 105 F.3d 1452 (D.C. Cir. 1997) (National Park

Service could not revoke permit for protesters along Pennsylvania Avenue for

Presidential inaugural parade, a public forum, based on content of speech);

Glasson v. City of Louisville, 518 F.2d 899 (6th Cir. 1975) (protesting in public

forum); Pledge of Resistance v. We the People 200, Inc., 665 F. Supp. 414, 416-

17 (E.D. Pa. 1987) (permit to use public forum does not justify excluding

expressive activity absent actual disruption); Butler v. United States, 365 F. Supp.

1035 (D. Haw. 1973) (denial of motion to dismiss suit against government

defendants who stopped protesters from entering Air Force base during

Presidential visit); Farber v. Rizzo, 363 F. Supp. 386 (E.D. Pa. 1973) (civil

contempt entered against defendants who violated TRO that allowed protesters to

remain in a public forum); Sparrow v. Goodman, 361 F. Supp. 566, 568

(W.D.N.C. 1973), aff’d sub nom. Rowley v. McMillan, 502 F.2d 1326 (4th Cir.

1974) (preliminary injunction against police and Secret Service who excluded

dissenters from Presidential event at arena)). Of these cases, only Mahoney,

Glasson, and Pledge of Resistance reached the question of whether a

constitutional violation occurred. Plaintiffs fail to recognize a crucial distinction

between those three cases and this case: First Amendment protection, in those

cases because the plaintiffs wished to speak or demonstrate in a public forum.

Given that distinction, these cases, decided prior to significant First Amendment

developments, cannot constitute the clearly established law.

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 The most similar case weighs against Plaintiffs’ argument that the alleged

constitutional right was clearly established. In Sistrunk v. City of Strongville, 99

F.3d 194 (6th Cir. 1996), the plaintiff sought access to a Bush-Quayle rally being

held at a city park. Id. at 196. The campaign committee had obtained a permit to

hold the rally, and the permit provided that the grounds were “limited to the

members of the organization and their invitees.” Id. The plaintiff obtained a

ticket to the rally, and tried to enter wearing a Bill Clinton button. Id. But the

“committee prohibited rally participants from carrying or displaying signs or

buttons that carried messages critical of President [George H.W.] Bush.” Id.

Once the plaintiff surrendered her Clinton button, she was allowed to attend the

rally. Id. The Sistrunk court analogized the Presidential rally to the parade in

Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston, 515 U.S.

557 (1995). In Hurley, “the state could not require private citizens who organized

a parade through public streets to include among the marchers a group imparting a

message the organizers did not wish to convey.” Sistrunk, 99 F.3d at 198 (citing

Hurley, 515 U.S. at 572-74). Similarly, the plaintiff in Sistrunk wanted to require

the rally organizers to accept her displayed views in their expressive activity, the

rally. Id. at 199. “[T]he committee that organized the rally for George Bush

could not be compelled to include in its message an expression of confidence for

Clinton.” Id. Thus, Sistrunk upheld the exclusion of the attendee.

In sum, no specific authority instructs this court (let alone a reasonable

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public official) how to treat the ejection of a silent attendee from an official

speech based on the attendee’s protected expression outside the speech area. To

be sure, in some obvious situations, general authority may put a reasonable public

official on notice that his or her conduct is violative of constitutional rights. This

is not one of them.

Because it is plain that the constitutional right claimed was not clearly

established at the time of the alleged violation, Defendants are entitled to

qualified immunity. Therefore, we need not reach the question of whether

Defendants violated Plaintiffs’ constitutional rights.

AFFIRMED.

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No. 09- 1085, Weise v. Casper
HOLLOWAY, J., dissenting.

I respectfully dissent as explained below.

I

Plaintiff-appellant Weise expressed an opinion on a matter of great public

concern in a manner that has become very familiar in recent decades: She put it

on a bumper sticker affixed to her car, stating bluntly: “No more blood for oil.”

As was said about a sign carried by a protestor against another war more than

thirty years ago, “[t]he message that [she] sought to communicate was an

expression of her views about important public questions and policies. This kind

of expression is entitled to the greatest constitutional protection.” Glasson v.

City of Louisville, 518 F.2d 899, 904 (6th Cir. 1975) (emphasis added).

Ms. Weise’s expression did not, however, receive the protection to which it

was entitled. Instead, because she had expressed an opinion that operatives of the

executive branch disapproved, she and two of her friends – who have not been

shown to have any responsibility for the bumper sticker and who may or may not

have agreed with its message – were rudely, publicly, and forcefully ejected from

a public meeting to which they had properly gained admission by complying with

the requirements that had been established. The speaker at the meeting was the

President of the United States of America.

Neither Ms. Weise nor Plaintiff Young had committed any objectionable

act inside the museum where the speech was to occur, nor had they expressed any
opinion whatsoever within that venue. The sole basis for conspicuously removing

them from the premises was the bumper sticker that was attached to Ms. Weise’s

car, which was parked in a parking lot some distance away, presumably with

those of hundreds of other persons.

It is simply astounding that any member of the executive branch could have

believed that our Constitution justified this egregious violation of Plaintiffs’

rights. “The right of an American citizen to criticize public officials and policies

and to advocate peacefully ideas for change is ‘the central meaning of the First

Amendment.’” Id. (quoting New York Times v. Sullivan, 376 U.S. 254, 273

(1964)) (emphasis added).

The district court found that there had been no violation of Plaintiffs’

rights, employing reasoning that is severely misguided and relying on precedents

that have no bearing on the questions presented in the instant case. On appeal,

the majority opts not to consider whether precious and fundamental constitutional

rights were violated, holding only that any violation would not have been

necessarily apparent to the Defendants.

I respectfully dissent. I would reach the first issue presented here and

would hold that the Plaintiffs’ rights under the First Amendment were clearly

violated by the Defendants’ actions in publicly ejecting them from the audience

that had gathered to hear the President’s speech on social security. On the second

issue, I am unpersuaded by the majority’s analysis and conclusion. I would hold

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that the 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 Plaintiffs solely because one of them had

legitimately exercised her right of free speech at another time and place. 1

Several years ago the Supreme Court held that rights may be clearly

established and qualified immunity should be denied “despite notable factual

distinctions” from previous cases “so long as the prior decisions gave reasonable

warning that the conduct then at issue violated constitutional rights.” Hope v.

Pelzer, 536 U.S. 730, 740 (2002) (quoting United States v. Lanier, 520 U.S. 259,

269 (1997)). I would hold that this is a case, like Hope v. Pelzer, in which

Defendants are not protected by qualified immunity; Defendants violated

Plaintiffs’ rights on a pretext so flimsy that the violation was obvious.

II

The allegations of Plaintiffs’ Complaint, which establish the underlying

facts at this stage of the litigation, are set out in the majority opinion. That

1
Defendants do not dispute that the bumper sticker on Plaintiff Weise’s car
critical of war policy is protected speech. The majority recognizes that the
“speech at issue” here is the bumper sticker, maj. op. at 10, and yet, listing but
not discussing cases relied on by Plaintiffs, the majority says that these cases
have in common “speech that is protected for some reason,” id. at 11. This seems
to imply that Ms. Weise’s speech was not protected, but I cannot believe that the
majority truly intends this implication.

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summary is correct as far as it goes. 2 It does not, however, fully reflect the

allegations of the Complaint (which, of course, we must take as true at this stage)

regarding the manner in which Defendants ejected Plaintiffs from the event. The

Complaint alleges that Defendant Casper “shouted” to Ms. Weise that she had to

leave, and it averred that he “shoved” Mr. Young toward the door. Once outside

the event, the Plaintiffs “were confronted by four or five men, two of whom were

uniformed police officers . . . .” Complaint at 6.

In addition to taking these well-pleaded facts as true, as required, we are to

draw from the facts all reasonable inferences in favor of the Plaintiffs. One such

inference, clearly supported by these facts, is that being publicly and prominently

ejected from the audience in this manner caused extreme embarrassment and

humiliation to the Plaintiffs. Our duty is to determine whether such treatment

was justified.

III

The majority correctly notes that the Supreme Court has recently rejected

the framework for analysis in cases involving the defense of qualified immunity

that required lower federal courts to decide first whether a plaintiff has pleaded a

violation of constitutional right before deciding whether the right so infringed

2
The majority opinion does, however, insert in its analysis section one
“fact” that is outside the pleading, declaring that the museum at which the
President spoke was private property. Although this may (or may not) be correct,
it is outside the record in this appeal, as far as I can determine.

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was clearly established. Pearson v. Callahan, __ U.S. __, 129 S.Ct. 808 (2009)

(overruling, in part, Saucier v. Katz, 533 U.S. 194 (2001)). Nevertheless, the

Court, while partially overruling Saucier, was careful to point out that Saucier

“was certainly correct in noting that the two-step procedure promotes the

development of constitutional precedent and is especially valuable with respect to

questions that do not frequently arise in cases in which a qualified immunity

defense is unavailable.” Pearson v. Callahan, 129 S.Ct. at 818 (emphasis added).

I am persuaded that this is a case in which the issue of whether a right has

been violated should be addressed at the outset. In recent years there have been

several cases across the nation in which citizens have sought redress for alleged

infringement of their fundamental liberties under somewhat similar

circumstances. 3 Because the right of free speech on matters of public concern is

so vital to our democracy, these are important cases, and the judiciary has a valid

and vital role in our society’s response. The importance of the issues raised in

this appeal should weigh heavily in favor of our consideration of them on the

3
See, e.g., McCabe v. Macaulay, 551 F.Supp.2d 771 (N.D. Iowa 2007)
(rally for incumbent President at a public park; protestors arrested on public
property while trying to comply with law enforcement orders; persons in the same
area demonstrating views favorable to the President were not confronted); Rank v.
Hamm, 2007 WL 894565 (S.D.W.Va. Mar 21, 2007) (Presidential address on July
4 on the grounds of the state Capitol; plaintiffs arrested for wearing shirts with
messages critical of the President). Other cases and incidents are cited in the
briefs herein and in various legal journals. See, e.g., Kimberly Albrecht-Taylor,
Note, Giving Dissenters Back Their Rights: How the White House Presidential
Advance Manual Changes the First Amendment and Standing Debates, 17 Wm. &
Mary Bill Rts. J. 539 (2008).

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merits.

Furthermore, in this case the district court was still operating under the rule

of Saucier and so analyzed and resolved the constitutional issue. That ruling,

although unpublished and not precedential, is a significant one. It is also, in my

view, deeply misguided. As a consequence, I conclude that the need to decide the

constitutional question is especially pressing here.

Accordingly, I dissent from the majority’s course of forgoing this

opportunity to consider an issue of great importance to our country. I would

address this issue, and I would decide it in favor of the Plaintiffs.

IV
A

The district court determined that there had been no constitutional

violation. The judge reasoned that the focus of the Complaint was that Plaintiffs

had not been permitted “to participate in the President’s speech.” (Emphasis in

original.) To the contrary, however, the Complaint makes it quite clear that the

Plaintiffs here did not wish to participate in the President’s speech but only to

attend it. See Complaint at 4, 7. Thus, the district court’s analysis was based on

a patently erroneous reading of the Complaint: Plaintiffs’ claim is surely not

based on denial of the opportunity to participate in the President’s speech, an

opportunity that they never sought nor claimed to have sought.

Relying primarily on Sistrunk v. City of Strongsville, 99 F.3d 194, 196-200

-6-
(6th Cir. 1996), which he termed “particularly instructive,” the district judge held

that the controlling principle is that when the President chooses to speak, he has

the right to control his message, including the right to exclude another’s

viewpoint: “President Bush had the right, at his own speech, to ensure that only

his message was conveyed.” 4

Not only did the district court base its analysis on an erroneous reading of

the Complaint, but its reliance on Sistrunk was misplaced. In Sistrunk, a majority

of a divided panel 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. Our case deals with a public

event, and Plaintiffs did not attempt to express any opinion in the course of their

attendance. 5 These two very significant differences in the underlying

circumstances result in Sistrunk being of very limited relevance to this appeal.

Moreover, the unfounded notion of equivalence between mere attendance at a

public event and attempting to participate in the message being delivered at the

event is very troubling to me, as I shall explain infra.

4
In discussing Sistrunk, the district court noted that case had relied on
Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston, 515 U.S. 557
(1995). Besides those two cases, the only one cited in his brief discussion of the
issue was Wells v. City and County of Denver, 257 F.3d 1132, 1143 (10th Cir.
2001).
5
Indeed, this case is almost a polar opposite of Sistrunk with regard to the
Plaintiffs’ behavior. Their only expression of opinion was on the bumper sticker,
about as far removed from trying to express themselves at the event as can be.

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 B

I would hold that Plaintiffs have sufficiently alleged that the Defendants

violated Plaintiffs’ rights under the First Amendment by ejecting them from the

President’s speech. Plaintiffs aver that Defendants agreed “to expel persons with

viewpoints opposed to the President’s . . . . They also conspired to seize

plaintiffs . . . .” Complaint at 7. 6 Defendants took this action solely “as a result

of the bumper sticker on Ms. Weise’s vehicle.” Id.

The issue thus framed is stark: Defendants excluded Plaintiffs from the

President’s public speech – after they had obtained tickets, cleared security

screening and been seated in the audience – due to the protected expression by

one of them outside the event. 7 The question, then, is whether the Constitution

permitted Defendants to take this action against Plaintiffs for this reason. The

answer, informed by decades of free speech jurisprudence – must be a resounding

“no.”

More than 35 years ago, the Supreme Court said:

6
Plaintiffs pleaded a violation of their rights under the First and Fourth
Amendments, but on appeal argue only that their First Amendment free speech
rights were violated.
7
The majority appears to place some importance on the facts that
“Defendants did not suppress Plaintiffs’ bumper sticker speech nor did the
government prosecute Plaintiffs for the speech.” Maj. op. at 10. Of course the
suggestion that the government could have done either is far outside the pale.
More importantly, the significant fact is that the Defendants did assault,
embarrass and publicly humiliate the Plaintiffs in response to this protected
conduct by one of them.

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 For at least a quarter-century, this Court has made clear that
even though a person has no “right” to a valuable governmental
benefit and even thought the government may deny him the benefit
for any number of reasons, there are some reasons upon which the
government may not rely. It may not deny a benefit to a person on a
basis that infringes his constitutionally protected interests –
especially, his interest in freedom of speech. For if the government
could deny a benefit to a person because of his constitutionally
protected speech or associations, his exercise of those freedoms
would in effect be penalized and inhibited. . . . . Such interference
with constitutional rights is impermissible.

Perry v. Sinderman, 408 U.S. 593, 597 (1972) (emphasis added). The Court went

on to note that (as of 1972) it had applied this principle to denials of tax

exemptions, unemployment benefits and welfare payments, and denial of public

employment. Id.

The Court recently reiterated this bedrock and longstanding principle of

First Amendment adjudication: “Official reprisal for protected speech ‘offends

the Constitution [because] it threatens to inhibit exercise of the protected right,’

and the law is settled that as a general matter the First Amendment prohibits

government officials from subjecting an individual to retaliatory actions . . . for

speaking out.” Hartman v. Moore, 547 U.S. 250, 256 (2006) (quoting Crawford-

El v. Britton, 523 U.S. 547, 588 n.10, 592 (1998)). “A more invidious

classification than that between persons who support government officials and

their policies and those who are critical of them is difficult to imagine.” Glasson

v. City of Louisville, 518 F.2d 899, 912 (6th Cir. 1975).

Although it is Plaintiffs’ burden of persuasion to show that they have

-9-
alleged a violation of their rights, it is nevertheless useful to turn the question

around: On what basis could a representative of the executive branch have

thought, on seeing Plaintiffs alight from Ms. Weise’s car with its bumper sticker,

that they could be excluded from a public event solely because Ms. Weise had

chosen to exercise her most fundamental First Amendment right outside of the

event and in the complete absence of any indication that Plaintiffs intended to

even speak at the event, much less any indication of any intent to disrupt the

event?

Because the Plaintiffs’ speech was on a matter of great public concern, it

was entitled to the utmost in Constitutional protection. Because the prohibition

on viewpoint discrimination is so well established, Defendants violated Plaintiffs’

established rights by excluding them from the President’s speech solely on the

basis of the protected message of the bumper sticker.

C

Defendants rely heavily on the contention that Plaintiffs’ attendance at the

President’s speech would have constituted participation in the speech. Thus, one

brief states that “the President has the right to control the message of his own

speech, which includes the right to exclude speakers who express disagreement

with that message.” Response Brief of Appellee Michael Casper at 4 (emphasis

added). The other Defendant’s brief includes the statement that “Plaintiffs have

no constitutional right to require the President, at his own speech, to adopt or

-10-
even allow their dissenting speech . . . .” Brief for Appellee Klinkerman at 12

(emphasis added). Clearly this is a red herring. Plaintiffs averred, and again we

must accept as fact, that they had no intention to disrupt the speech or even to

express themselves at the speech. 8

Defendants go further in their advocacy of this position. They argue that

Plaintiffs’ mere attendance at the President’s speech is somehow equivalent to

expression of their opinions at the speech. As noted, the district court accepted

this contention. And although the majority does not expressly endorse this view,

and indeed seems to reject it expressly at one point, the majority’s reference to

Sistrunk as the “most similar case” is a troubling echo of the contention.

Accordingly, I think it important to say, with some emphasis, that I reject

this proposition. “Merely being present at a public event does not make one part

of the organizer’s message for First Amendment purposes.” Gathright v. City of

Portland, 439 F.3d 573, 577 (9th Cir. 2006). 9 It simply makes no sense to

8
Appellant Young intended to attempt to be recognized to ask a question if
the President, in his sole discretion, opted to take questions from the audience.
Because that intention was unknown to the Defendants, they have not suggested
that their actions were motivated by this possibility which, in any event, was
something which would not have occurred unless the President decided to open
the floor to questions.
9
The Ninth Circuit was quoting, with approval, the opinion of the district
judge in the case it was reviewing. Gathright v. City of Portland, 315 F.Supp.2d
1099, 1103 (D. Ore. 2004). The same language was quoted with approval in
Wickersham v. City of Columbia, 371 F.Supp.2d 1061, 1084 (W.D. Mo. 2005),
aff’d, 481 F.3d 591 (8th Cir. 2007).

-11-
suppose that the mere presence in the audience of persons who might have some

disagreement with the President on some issues would have any effect on the

President’s message. Moreover, it is fanciful to suppose that an audience could

have been assembled that did not include any persons who disagreed with the

President on any issue. And if the violation of these Plaintiffs’ rights was based

on an assumption that one who disagrees with the President on one issue is likely

to disrupt or embarrass the President when he speaks, that is an assumption that

cannot stand in the face of the First Amendment.

As already noted, Defendants persuaded the district court that Sistrunk v.

City of Strongsville, 99 F.3d 194 (6th Cir. 2006), was “persuasive.” Defendants

rely heavily on that case again in this appeal, and the majority here finds it the

“most similar” case. Consequently, additional comment on my view of that case

seems appropriate.

In Sistrunk, the event in question was deemed by the court to be a private

affair, and the opinion is very clear that this was essential to the court’s

reasoning. Although the event was to be held on municipal property, the city had

granted a permit to the Strongsville Republican Organization for use of the

property for a political rally on a certain date for the nominal sum of one dollar.

“The permit specifically provided that the use of the facilities and grounds was

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limited to the members of the organization and their invitees.” 99 F.3d at 196. 10

The facts in the appeal before us are quite different. The event was not

sponsored by a private group but by the Article II executive branch of the United

States. Plaintiffs’ Complaint alleges that the event was open to all members of

the public who were able to obtain tickets. Tickets were distributed on a first-

come-first-served basis, and Plaintiffs obtained their tickets merely by showing

identification.

Moreover, the plaintiff in Sistrunk had attempted to attend the Bush-Quayle

campaign’s event while wearing a button expressing support for their opponent,

so that the assertion that the plaintiff was attempting to participate in the rally by

expressing her own message had at least some factual basis in that case. 11 The

district court apparently found these distinctions unimportant, but I conclude that

they are of considerable significance in the constitutional analysis and effectively

undercut the district court’s entire rationale.

10
The dissenting judge in Sistrunk was not convinced that a traditional
public forum had been transformed into a private forum through the use of a
permit. 99 F.3d at 202-203 (Spiegel, D.J., dissenting).
11
The dissenter, however, was not persuaded, rejecting the majority’s
conclusion that “being a member of the rally’s audience” was like marching in the
parade, the expressed wish of the plaintiff in Hurley v. Irish-American Gay,
Lesbian & Bisexual Group of Boston, 515 U.S. 557 (1995). The dissent said that
one who marches in a parade “is an active participant . . . while one in attendance
at a political rally is merely a spectator. In actuality, marching in a parade is
equivalent to speaking at a rally since both are involved in conveying the
message.” Sistrunk, 99 F.3d at 201 (Spiegel, D.J., dissenting).

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 D

In this appeal, the majority goes awry in another way. Plaintiffs have

clearly based their claim on the protected speech that was on the bumper sticker.

Yet the majority notes, apparently as a factor that somehow weighs against the

Plaintiffs, that no authority is cited to suggest that attendance “is transformed into

speech or even expressive activity because of their speech elsewhere.” Maj. op.

at 10. No authority is given for that suggestion, I venture to say, because that is

not the Plaintiffs’ theory of their case. 12

The majority, however, seems to find this notion significant, as the opinion

goes on to say that the cases relied on by Plaintiffs all concern “speech that is

protected for some reason.” Maj. op. at 11. The implication seems to be that this

case is only about Plaintiffs’ attempted attendance at the President’s speech,

which the majority does not find to be protected. But that is not the case that has

been brought before us. Instead, the Plaintiffs have been quite clear in basing

their cause of action on the exercise of First Amendment rights embodied in Ms.

Weise’s bumper sticker.

Thus, we address here speech that is unquestionably protected, or more

accurately, entitled to be protected under the First Amendment. It is severely

distressing that such protection is not forthcoming from this court.

12
Indeed, in the same paragraph, the majority recognizes that “the speech at
issue [is] the bumper sticker on Ms. Weise’s car.”

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 V

I would also hold that the rights which were violated by the Defendants

were so well established that a reasonable officer should have known that this

conduct was unlawful. For a court to find that a constitutional right was clearly

established, “its contours must be sufficiently clear that a reasonable official

would understand that what he is doing violates that right. . . . . [I]n the light of

pre-existing law[,] the unlawfulness must be apparent.” Hope v. Pelzer, 536 U.S.

730, 739 (2002) (internal citations and quotation marks omitted).

It is not necessary for Plaintiffs to identify a precedent involving the same

factual situation:

[G]eneral statements of the law are not inherently incapable of giving
fair and clear warning, and . . . a general constitutional rule already
identified in the decisional law may apply with obvious clarity to the
specific conduct in question, even though the very action in question
has not previously been held unlawful.

Id. at 741 (emphasis added; internal quotations and citations omitted). Thus,

“officials can still be on notice that their conduct violates established law even in

novel factual circumstances.” Id.

The prohibition against viewpoint discrimination is unquestionably well

established. A particularly articulate expression of the rule is that

there are some purported interests – such as a desire to suppress
support for a minority party or an unpopular cause, or to exclude the
expression of certain points of view from the marketplace of ideas –
that are so plainly illegitimate [that they cannot be tolerated]. The
general principle that has emerged from this line of cases is that the

-15-
 First Amendment forbids the government to regulate speech in ways
that favor some viewpoints or ideas at the expense of others.

Members of City Council of City of Los Angeles v. Taxpayers for Vincent, 466

U.S. 789, 804 (1984).

It has been similarly well established for years that taking action against a

person for exercise of the protected rights is prohibited in most circumstances.

Considering action taken against a deputy sheriff that, for purposes of summary

judgment, was assumed to have been based on his exercise of protected speech

about the political philosophy of an incumbent and a potential challenger, we held

that the law had been well established in January 1998 that freedom of expression

includes the freedom to opine on issues of public concern. “Consequently, a

reasonable official would understand that removing [the deputy’s] commission

based on his expressed preference for one individual’s philosophy over another . .

. violated [the deputy’s] free speech rights.” Bass v. Richards, 308 F.3d 1081,

1090 (10th Cir. 2002).

The only question, then, is whether there is something in the factual context

in which the issue arises in the instant appeal that would raise doubt about the

application of the prohibition on viewpoint discrimination. I firmly believe that

there is no such uncertainty. The Plaintiffs (or one of them) engaged in protected

speech. Quite separate from that, in time and location, they were admitted to the

audience for a Presidential address, having satisfied all conditions for admission.

-16-
Based only on a demonstration of protected speech on the bumper sticker of the

car that Plaintiffs had parked some distance away from the speech, representatives

of the Executive publicly ostracized and humiliated the Plaintiffs.

I see no basis whatsoever for any doubt about the impropriety of this

conduct. Instead, I would firmly hold that the right of freedom of speech and the

prohibition on taking adverse actions against a speaker based solely on her point

of view “apply with obvious clarity” 13 to the facts of this case.

******************************

Accordingly, I respectfully dissent.

13
Hope v. Pelzer, 536 U.S. at 741.

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