Wouldn't it make more sense for him to position himself in the lawbooks alongside John Peter Zenger?Nicely put. Read the whole thing. Amar hasn't convinced me that Cheney ought to set aside the strong defense of immunity and only make the free speech argument. Immunity is an important tool for fending off the many lawsuits that would otherwise be aimed at the individuals who undertake public service. Just because Nixon was involved in using this defense doesn't mean it's sleazy (even assuming you think Nixon is sleazy). Should you have to worry about making a free speech defense because Larry Flynt is unsavory?
... Cheney should use this as a teaching moment, to explain how a proper understanding of First Amendment principles actually supports him and not the Wilsons, who have claimed that Cheney violated their free-expression rights. The result would be an elegant First Amendment jujitsu, using all the Wilsons' free-press momentum against them, to defeat their lawsuits.
Here is the key fact that Cheney should stress: Unlike Nixon, who fired a government whistle-blower, Cheney did not fire the Wilsons. He merely spoke out against them. True, he did so furtively, in what many might view as an underhanded whispering campaign. But the First Amendment protects a wide variety of speech and expression, encompassing the right to print, orate, and yes, to whisper—even to whisper anonymously and with petty or partisan motivation.
And to whom were Cheney and his fellow defendants whispering? To the press! This is the other key fact for the New Dick Cheney—the Zorro/Zenger Defender of the First Amendment. The Wilsons claim that they were being punished for speaking out against Cheney and the administration. But if the Wilsons have a right to criticize Cheney in the press, Cheney can claim that he has an equal right to criticize the Wilsons when talking to the press, whether on the record or off....
[R]ather than hiding behind the claim that he, like the president, is somehow above the law, Cheney should assert that he—like any ordinary citizen!—has a legally protected right to speak to the press.
But I do like the First Amendment argument. The fact is Joe Wilson made a harsh attack on the administration, and we ought to want to know who he is, in context. There is other law to protect national interests from those who would disclose government secrets. A vigorous inquiry was made into whether that law was violated, and it came up dry. This is a tort suit, and anyone who is rooting for Plame -- feeling the old anti-administration blood lust -- ought to try to calm down for a few minutes and think about the broader picture. Do you really want to intimidate people into silence this way?