>> that's what this court said in reichle. there are times. >> so your answer to justice kagen is that it would be proper, if you have only 15 minutes, limited amount of time, to move the people with the adverse -- with the signs that criticize the president? >> that's correct. we think that -- so your answer to justice kagan is there's no violation if they move just the bush protesters. >> that's correct. if i could just say a word -- >> i don't know -- i thought what the chief was going to say, there's no differential reason to move one or the other. let's assume you have an equal amount of time. you can get everybody moved. and you just are choosing to move the bush -- anti-bush demonstrators. >> your honor, i understand that this is an unattractive hypothetical for the government's position and if i could explain why nonetheless i think it's the right answer, because the flip side is if you have an agent who has a legitimate security rationale and is going to move against somebody who's hostile, who's showing messages that

however, what the court did in reichl -- >> i don't what does that answer mean? >> that means there is no constitutional violation. >> so you so you say that any time there is an objective basis for the secret service to act to move a protester, the fact that this wasn't the motive at all, but that it was viewpoint discrimination is irrelevant. >> so, your honor, i want to -- >> is that your position or is it not? >> that is our position, but i don't think that's what we need to win this case. >> i know that, but the reason that you the reason i think these questions are being asked, my impression is exactly what justice scalia said in respect to a fourth amendment case against a police stop. but my impression also is that where you have a first amendment case and it's not against the policeman, against secret service, this court has not said that. am i right about that? and the reason that your position, if i am right, is relevant is because i think maybe we shouldn't say that for the first time in a case where the government hasn't even argued it. >> answer to

the fourth amendment context, that says if there is an objective basis, i think that's reflected in reichle. but, as the court in iqbal noted, in the first and fifth amendment context, at least in the context of state actors, the court has held that invidious intent is a basis for liability. intent to violate those constitutional rights is a basis, and so -- >> excuse me. i'm not sure. if you stop a car because you think the participants in it were coming back from a protest against president bush, is that a fourth amendment case or a first amendment case, if that's your allegation? the only reason the car was stopped was because of the viewpoint that these people have. is that a fourth amendment case or a first amendment case? >> no. that would be a first amendment case. >> yeah, i would think so. and you think that so long as you make that first amendment allegation, it doesn't matter if you have a broken taillight. >> i think for the terms of the first amendment claim, it wouldn't matter if the circumstances demonstrated and created a basis for that inference of intent. >> wow. >> just o