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Dick Cheney-Secret Service case goes to Supreme Court: Speech vs. safety?

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While his fight on behalf of Occupy Denver's claims against the city may be over, attorney David Lane has another big case before him, on the biggest legal stage in the country.

The U.S. Supreme Court has agreed to hear the tale of Steven Howards, a Lane client who says his freedom of speech was chilled by the Secret Service at a Colorado appearance by then-Vice President Dick Cheney. What's the crux of the case?

According to Lane, "The issue is, does probable cause for an arrest eliminate your right to have a trial on your First Amendment rights?"

The controversy dates back to a 2006 Cheney appearance in Beaver Creek. According to USA Today, Secret Service agents Virgil Reichle and Dan Doyle were keeping an eye on the veep as he shook hands and spoke to people at an outdoor mall. 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

When agent Reichle questioned him about the incident, Howards said he had not touched Cheney -- but after agent Doyle disagreed based on observing what took place, the agents arrested Howards. He was accused under Colorado state law, but the charges were later dismissed.

Afterward, Howards 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. This conclusion worked in Howards's favor, yet it contradicted decisions in other courts, as Lane explains.

"Hypothetically, a guy could make an anti-police speech to a crowd and then throw down a cigarette butt, and they could arrest him for littering when everyone knows the real reason he was being arrested was because they didn't like his speech. And various circuit courts have held that you don't get to go to court on a First Amendment claim if they had probable cause to arrest you for something else -- and they can always come up with something to arrest you for, completely ignoring the fact that the subjective intent of the police officer was to punish you for free speech.

"In this context, they claim Steve Howards made a false statement to the Secret Service -- that he denied touching Dick Cheney. We disputed that. But the 10th Circuit said that even though they could have arrested him for the false statement, he could go to trial on the First Amendment suit. And that's a split in the circuits. Only two circuits in the country have decided it that way, and four circuits have decided it the other way."

Presumably, then, the Supreme Court will be able to clear up the confusion and establish a standard moving forward. But Lane faces a big challenge in winning the day, and not only because of the current court's well-established conservative slant.

"Justice [Elena] Kagan" -- an Obama appointee in 2009 -- "has recused herself from hearing the case, which is bad for us," he concedes. "But if we get a tie in the Supreme Court, eight to eight, then the 10th Circuit opinion is affirmed, and we go to trial. We had thought there'd be a four-four split, with [Justice Anthony] Kennedy as the swing vote. Now, it's looking like a three-four split, so I need to grab Kennedy to win -- which has sort of always been the case. If I get five votes, it's a win. If I get four votes, it's a win. And they have to get five votes to win."

The case is expected to be heard by the Supreme Court next Spring, with a decision likely to come in June -- approximately six years after those fateful words.

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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?"

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