The following is a hypothetical that you might expect to see on a law school exam. The Defendant Agents Duggins and Dell have moved to dismiss under Rule 12(b)(6). Consider whether the court should grant or deny the motion to dismiss. Be ready to make arguments for either side.

Pam and Pete Parza, members of the Alliance Against President Smith (AAPS), participated in several peaceful protests against President Smith and his policies during the 2024 presidential election. On October 14, 2024, just weeks before the election, President Smith paid a visit to Elko, Nevada for a campaign event. While there, he stayed at the Miners Inn in Elko.

The Miners Inn is located on, and faces, California Street, between Third and Fourth Streets. There is patio dining behind the hotel. The patio is quite large and is clearly visible from both Third and Fourth Streets. There is an obstructed view of the patio from California Street. There is also a fence surrounding the patio, but it is only about three feet high. Although it can be chilly in Elko in mid-October, the weather is usually clear, and the Miners Inn patio is a very popular dining destination. To combat the cold, heat lamps are placed throughout the patio dining area.

On October 14, 2024, Pam and Pete and two hundred other concerned citizens gathered in Elko to protest against President Smith. Pam and Pete brought their young children to the protest—young Sally, nine months old, was safely affixed to her mother’s back in a sling and little Aiden, 3 years old, was in a stroller bedecked with AAPS paraphernalia. The protestors congregated on the public sidewalks adjacent to and across the street from the Miners Inn (on California Street and around the corner onto Fourth Street). The protest started at 8:00 am that day.

One of the organizers of the AAPS protest, Shelley Vicker, spoke with Elko City Police Chief Joe Rin and Elko County Sheriff Cindi Greene before the protest and advised them of their plans. Ms. Vicker specifically informed the officials that the protest would be multi-generational, with many parents bringing small children. Police Chief Rin and Sheriff Greene told them the protestors would be okay if they remained on the designated sidewalks and did not obstruct traffic.

The AAPS protestors dutifully followed these instructions. They carried signs and chanted slogans for most of the day. The protest was peaceful, but it was quite loud. The police received a few complaints that day from neighboring businesses regarding the noise. A smaller group of individuals, supporters of President Smith (members of the Four More Years Alliance (FMYA)), were also gathered near the Miners Inn. However, the FMYA protestors congregated on Third Street, and they were not nearly as large a group, nor were they as loud, as the AAPS protestors.

The protest lasted the entire day without incident. However, around 5:00 pm, the atmosphere changed. News spread through the crowd that President Smith had changed his dinner plans and had decided to dine on the patio at the Miners Inn. President Smith entered the Miners Inn through the back kitchen door and was escorted to the patio by his two lead Secret Service Agents Daveen Duggins and Darrah Dell. Secret Service Agent Donny Driggs was waiting for the President and his fellow agents on the patio. There were already a number of individuals eating on the patio when the President arrived, but Agents Duggins, Dell, and Driggs did not sense a threat. Thus, they did not search or otherwise bother the diners upon the President’s arrival.

Once the AAPS protestors learned that President Smith was at the Miners Inn, they escalated their protest. The protest remained peaceful, but the noise increased. About twenty minutes after the President’s arrival, Chief Rin and a large number of police officers arrived at the protest site in full riot gear. An armored personnel carrier was located behind the police line. An announcement was made instructing the protestors to vacate California Street and Fourth Street. The following reason was given for moving the protestors: Secret Service Agents did not want anyone who might have a handgun or explosives within range of the President.

The police officers forced the AAPS protestors to move east along California Street, past Fourth Street and onto Fifth Street, in some cases shoving plaintiffs and striking them with clubs. According to Pam and Pete Parza, when the police officers arrived and attempted to move the demonstrators, plaintiffs and a number of other protestors employed “passive resistance” techniques to impede their arrest, including going limp, refusing to identify themselves, and refusing to unlock arms with one another. Accordingly, the officers had to employ some degree of physical coercion in order to move, and in some cases, arrest the pro-testers. Once the protestors were moved, the police split the group of protestors into two groups, and in some instances, separated family members from fellow family members, including parents from children. In fact, Pam and Sally were separated from Pete and Aiden. Finally, some of the protestors, including Pam and Pete, were arrested.

Following the protests and arrests, some of the AAPS protestors noted that the FMYA protestors were allowed to remain on Third Street and were not otherwise caught up in the attempts to relocate the protestors to Fifth Street.

On April 2, 2025, Pam and Pete Parza (plaintiffs) filed a complaint in the District Court for the District of Nevada against the Elko City Po-lice Department, Elko City Police Chief Joe Rin, Elko City Police Officers “Don Doe I” and “Dana Doe I,” and Secret Service Agents Dug-gins, Dell, and “Dave Doe I.”

This exercise will only address the claim against the Secret Service Agents. The gravamen of the plaintiffs’ complaint against the Secret Service Agents was that the agents violated plaintiffs’ First Amendment rights by requiring them to be moved because of their anti-Smith views. The plaintiffs believe that the Secret Service either had an understood policy or de facto practice of keeping anti-Smith protestors away from the President. The statute of limitations for this claim is two years.

The key parts of the complaint alleged the following:

¶1 Plaintiffs are Pam and Pete Parza, members of the group Alliance Against President Smith (AAPS).

¶2 Secret Service Defendants Duggins, Dell, and “Dave Doe I” unconstitutionally excluded anti-government demonstrators from a traditional public forum. This exclusion was pursuant to an unconstitutional Secret Service policy.

¶3 On October 14, 2024, after the plaintiffs’ anti-Smith chants and slogans could be heard within the patio where the President was dining, Secret Service Defendants Duggins, Dell, and “Dave Doe I” requested or directed Chief Rin and other police officers to clear California Street of all persons and to move them to the east side of Fourth Street and subsequently to the east side of Fifth Street.

¶4 The police officers forced the anti-Smith protestors to move east along California Street.

¶5 During the entire time these actions were being taken against the plaintiffs, the Secret Service Defendants did not take action to move the pro-Smith demonstrators on Third Street or the unscreened guests and diners in the Miners Inn.

“‘[V]iewpoint discrimination’ occurs when the government prohibits ‘speech by particular speakers,’ thereby suppressing a particular view about a subject.” Gieb v. Sylvester. The Supreme Court has made clear that government suppression of speech based on the speaker’s motivating ideology, opinion, or perspective is impermissible. See Rosen v. Visitors of Univ. of Va. (“It is axiomatic that the government may not regulate speech based on its substantive content or the message it conveys.”); Maney v. Babbitt (holding that the First Amendment does not permit the federal government to bar ideological opponents from peace-fully protesting on the sidewalks of Pennsylvania Avenue during President Wesson’s second Inaugural Parade).

Thus, to prevail on this claim against the individual agents, the plain-tiffs must establish that the Secret Service Defendants ordered the relocation of their demonstration because of, not merely in spite of, the demonstration’s anti-Smith message. They can do this by (i) showing that the agents, on their own accord, impermissibly ordered the relocation of their demonstration; or (ii) showing that the agents, pursuant to an impermissible Secret Service policy, ordered the relocation of their demonstration.

Defendant Agents Duggins and Dell move to dismiss under Rule 12(b)(6), arguing that that the complaint failed to state a claim upon which relief can be granted because (i) plaintiffs did not show that the agents, on their own accord, impermissibly ordered the relocation of their demonstration; or (ii) plaintiffs did not show that the agents, pursuant to an impermissible Secret Service policy, ordered the relocation of their demonstration. Limiting your response to the complaint allegations provided, discuss whether the motion would be granted or denied and why. Assuming the motion would be granted, briefly discuss what additional facts might have been pleaded to save the complaint.