Steve Howards-Dick Cheney case: 8-0 Supreme Court rejection bizarre, says David Lane

Yesterday, the U.S. Supreme Court ruled 8-0 against Steve Howards, who claimed his free speech rights had been chilled by Secret Service agents when he approached then-Vice President Dick Cheney circa 2006. Hence, Howards can't sue the Secret Service. However, his attorney, David Lane, believes the lop-sided margin masks a closer call resolved in a flat-out weird manner.

As we originally reported in December, when the Supreme Court agreed to take the case, Secret Service agents Virgil Reichle and Dan Doyle reportedly were keeping an eye on the veep as he shook hands and spoke to people at an outdoor mall in Beaver Creek. Howards was present, too, and one agent reportedly overheard him tell someone via cell phone that he planned to ask the visiting politician "how many kids he's killed today." He then approached Cheney and told him his "policies in Iraq are disgusting," touching his shoulder in the process.

Afterward, Reichie quizzed Howards, who denied touching Cheney -- but Doyle had seen him do so and placed him under arrest. He was accused under Colorado state law, but the charges were later dismissed.

Howards subsequently sued the agents, claiming that they'd infringed on his right to free speech, and while the 10th Circuit Court eventually ruled that the pair had justification to take him into custody, his lawsuit was allowed to go forward on First Amendment grounds, albeit not before all nine Supreme Court members. Justice Elena Kagan recused herself from considering the matter.

With Kagan sidelined, Lane felt the best outcome, given the court's conservative slant, would be a four-four split, which would have resulted in the lawsuit going to trial. But instead, the court unanimously rejected Howards because, Justice Clarence Thomas wrote in the majority decision, the law was unsettled on the matter.

This logic leaves Lane figuratively scratching his head. "I've never seen the Supreme Court say the law is unsettled and precede not to settle it -- which is exactly what they did," he says.

His guess about why? He thinks it was probably "a compromise. They got the left side of the court to go along with Thomas on the condition that no significant First Amendment issues were to be resolved. So it was probably a four-four tie, because Kagan recused herself, and this is their way of punting."

The news isn't great for Howards, obviously, but it's not all bad in a broader sense, Lane feels. "Howards is precluded from seeking damages, but they left untouched the entire First Amendment, because they avoided deciding any of the difficult issues we presented to them. So no damage was done to the First Amendment."

What kind of case might force the Supremes to actually decide something? One just like Howards' sans the recusal, Lane feels. "Kagan recused because she was in the solicitor's office when the case was first run by them," he says. "If she hadn't, I think Howards would have won."

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More from our Shmuck of the Week archive: "Dick Cheney lawsuit: Are these Secret Service agents shmucks or are they just doing their job?"