pleading standard

Wood v. Moss

  1. Should Secret Service agents receive qualified immunity from claims that they violated the First Amendment rights of anti-Bush demonstrators, where the agents moved anti-Bush, but not pro-Bush demonstrators, to protect the President?  
  2. Did anti-Bush demonstrators who were moved away from the President, adequately plead viewpoint discrimination if Secret Service agents had security reasons to move them?

In 2004, President Bush made an unannounced campaign stop at the Jacksonville Inn in Jacksonville, Oregon. Expecting the President to appear only at the nearby Honeymoon Cottage, pro-Bush and anti-Bush demonstrators arranged lawful demonstrations in the area. When the President changed his plans, Secret Service agents ordered local law enforcement to clear the area where the anti-Bush protestors were demonstrating. The anti-Bush demonstrators sued for viewpoint discrimination under the First Amendment. Secret Service agents Wood and Savage argue that the Ninth Circuit’s generalization of the protestors’ constitutional rights incorrectly deprived them of qualified immunity. Wood and Savage also argue that protestors failed to adequately plead a plausible claim because the complaint shows that the agents had a permissible security motive. Respondent Moss argues that the Ninth Circuit properly denied Wood and Savage qualified immunity because the agents moved the protesters because of the content of their speech. Moss also argues that he adequately pleaded viewpoint discrimination by laying out facts that plausibly establish the agents’ discriminatory motive. This case will determine whether law enforcement agents are able to account for demonstrators’ viewpoints when protecting public officials and the general public during political events. Additionally, this case will help define the parameters of the Court’s previous Iqbal ruling. 

Questions as Framed for the Court by the Parties: 
  1. Whether the court of appeals erred in denying qualified immunity to Secret Service agents protecting the President by evaluating the claim of viewpoint discrimination at a high level of generality and concluding that pro- and anti-Bush demonstrators needed to be positioned an equal distance from the President while he was dining on the outdoor patio and then while he was travelling by motorcade.
  2. Whether respondents have adequately pleaded viewpoint discrimination in violation of the First Amendment when no factual allegations support their claim of discriminatory motive and there was an obvious security-based rationale for moving the nearby anti-Bush group and not the farther-away pro-Bush group.



During his 2004 presidential campaign, President Bush made an unannounced stop at the Jacksonville Inn in Jacksonville, Oregon. See Moss v. U.S. Secret Service, 711 F.3d 941, 948 (9th Cir. 2012). The President was scheduled to appear at the nearby Honeymoon Cottage, so both pro-Bush and anti-Bush groups were prepared to demonstrate in the area.

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