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?
Posts
20 comments:
Though I am not an attorney, I have a bad feeling about how this lawsuit is going to turn out for the Wilsons. Every law commentator I have seen, from all sides of the political spectrum, doesn't give the Wilsons much chance of winning anything.
It makes you wonder if they are socially inept. As if, say, they believe that their social standing and friendships can only be maintained via this course.
It just seems sad. If they truly believe in their "cause", shouldn't they choose to live with the knowledge that history, even short-term history, may prove them right?
Disclaimer: I do not believe the Wilsons are correct at all, not even from the beginning of this affair. Its just that I actually feel sorry for them now - something I didn't think that i would ever feel. . .
"Tort liability is a lesser measure for redressing such situations."
Yeah, but you have to look at the negatives there. Tort plaintiffs are self-interested. They can be looking for money, discovery, publicity, revenge, etc. Why would you want to empower plaintiffs to bring tort claims against people who have engaged in free speech? We already have libel law. You like tort claims about how someone's reputation was hurt because someone brought out true facts about them? Amar discusses this in his article.
Brent: I think they are basking in the limelight and being toasted by the opponents of the administration. Find someone sadder to feel sorry for.
That argument looks like a trap, to me. The vice-president is not careless enough to be sucked into making an argument which would give a defense to the NSA and SWIFT leakers at the same time. As marghlar correctly points out, Fitzgerald's decision not to prosecute does not mean that it was legal to leak Plame's name (I think it probably was legal, but that's another argument). Defending what will surely be characterized, at least, as an illegal leak on First Amendment grounds would set a precedent for allowing all government employees a First Amendment right to disclose classified material. Cheney wasn't born yesterday...
Patrick: I thought about that as I was writing this post, but the key thing seems to be that it wasn't illegal.
Either way, Cheney seems the least likely person to care about this sort of issue.
Marghlar: I didn't miss that point. Obviously, it's true that the standard of proof is higher for criminal law than for tort law. My point stands, however. I see the negative side of tort suits like this. I like the higher standard and am saying that the failure to meet it -- as judged by a publicly accountable institution (the prosecutor) -- is the best place to end this controversy, in the interest of the free flow of information to the citizenry.
Stever: Often those who assert rights are not people who've shown respect for rights. Look at all the criminal defendants, often sociopaths and violent brutes, who assert the most important right.
The question isn't whether Cheney is an admirable man, but what is in the broader public interest. I'm coming down on the side of free speech values, rather than tort plaintiffs with their big bag of self-interest.
Cheney has self-interest too, of course. But let's step back and not analyze this based on which party is the good guy and which is the bad guy. Let's look at who wins and loses in the broader society. Are tort suits like this in the public interest? I'm saying no.
Oh I definetely agree with you, I just don't think you can appeal to his desire not to be lumped with Nixon hiding behind immunity. As a matter of principle, I'd want him to fight based on free speech given he did nothing illegal.
His defense should be that Joe and Valerie are simply too cheesey--and Vanity Fair whores to boot--to be believed.
Seriously, after that spread in VF... there's not much worse. That rag is so wrong. It's like some mutant cross between Page Six and the Village Voice.
I have to confess that I don't understand how a free speech claim really fits here. The constitutional claims in the Wilson-Plame Complaint are only viable if the disclosures were otherwise unlawful. Wilson and Plame cannot have a constitutionally protectable interest without some underlying entitlement to have the information kept secret. It is now fairly clear that none of the targets of the lawsuit disclosed classified or otherwise protected information. Some of the information was already known to Novak from some other source and some was available to the public via Who's Who. So it seems superfluous to assert a First Amendment defense when there is a glaring defect in the constitutional claims already.
If it were otherwise--if there was a constitutionally protectable interest at stake--it seems to me that First Amendment protection would be unwarranted. When a government official tramples the constitutionally protectable rights of a third party by unlawfully disclosing information, it should make no difference whether the disclosure is made directly to a member of the press or whether the information dribbles into the public consciousness through some other means.
I think the First Amendment theory is also superfluous with respect to the tort claims. Plame's identity was not "private." The only reason it was regarded as a secret at all is due to the (alleged) governmental interest in keeping it secret. That Wilson converted it into a matter of public interest with his NY Times op-ed seems to me far more obvious than most of the coverage of these events suggests. How can one reasonably dispute that the circumstances by which the likes of Joe Wilson was assigned to perform intelligence gathering on nuclear weapons was a legitimate subject of public concern? The tort claims have to fail because the personal privacy rights of Wilson and Plame so clearly are not at issue. The public disclosure of private facts tort and the First Amendment have long coexisted in most jurisdictions for the very sensible reason that "private facts" have to be those the disclosure of which are invasive of a reasonable person’s privacy. Information willingly published for the purpose of advancing one’s standing in the D.C. social set does not fit the bill.
I think Amar’s suggestion that the First Amendment has an important role in this case is bizarre.
Let me add a link here to the complaint for anyone really interested in the Wilsons' case against Cheney et al.
Interestingly, since we are talking 1st Amdt., the Wilsons have a 1st Amdt. claim too (their First Cause of Action, p 17), and it would be interesting to see whose trumps whose. The Wilsons are claiming that retaliatory actions were taken by the defendants in reprisal to their exercise of their 1st Amdt. right to speech.
I thought this a bit far fetched, but the Wilsons do plead that it was done under color of federal law, and a someone noted a case where a state level official had been found liable under this theory.
Of course, the suggestion that it was done under color of federal law skirts awfully close to an admission that the defendants were doing this within the scope of their offices, which would not only provide them with immunity, but would also potentially allow the DoJ to intervene and invoke the Federal Tort Claims Act (FTCA). And, unfortunately for the Wilsons, if that should happen, they haven't complied with it, and that too would be grounds for dismissal.
Back to the 1st Amdt. issues. We have a Constitutional Law expert moderating this discussion. I wonder about her take on these competing 1st Amdt. claims. (Ann, if you demur, I would understand - my understanding is that 1st Amdt. is a specialty within Con. Law - I am hoping that Volokh has something on this, because I think he spends more time in this area - but his site has been unavailable to me all day).
ChrisO said,
"this board reads like many of the other right wing boards I visit. The commenters are overwhelmingly on the right, and very rarely seem to disagree with Ann's opinions other than on legal technicalities."
Apparently you missed the gay marriage threads, Chris.
I am not sure that even the president has unlimited immunity. Witness Clinton and his contempt of court.
That said, the Vice President's job is as big or as small as the President wishes. In the case of Rosevelt and Truman, it was so circumscribed that the later apparently didn't even know about the atomic bomb until he became president himself. On the other hand, Cheney has significantly more authority than any VP in my memory. Not quite the co-presidency that Hillary expected, but closer than any that I know of.
As a result, I suspect that Cheney's office, and, thus, immunity, is going to be quite broad, and that most, if not all, of what he did here would be subsumed therein. I would also think that both Rove and Libby would also have been doing their designated tasks, and, thus, too within the scope of their jobs, and thus, should also be immune - except..
The problem arises that the Wilsons have alleged that they were acting with improper motives (animus towards the Wilsons, with the intent to harm them), and thus, implicitly, immunity should not be warranted. But the other side of this is that the defendants have repeatedly stated that the purpose of whatever they did here was to rebut Wilson's NYT article, through showing that Cheney did not send him to Niger, but his wife was behind it - i.e. nepotism.
I frankly am not sure whether these two things can be separated, but if they can't, I suspect that immunity will be granted.
ChrisO
You cite Wilson's article, and I agree that it doesn't precisely say a lot of things that people say it said, and that is because, IMHO, he filled it with a bunch of artful misdirections. For example, he said that he had not found that Niger had sold Yellowcake to the Iraqis. But, of course, that wasn't the issue. The President's SOTU message, that Wilson was trying to debunk, said that the Brits believed that the Iraqis were TRYING TO ACQUIRE it. And, that was indeed his mission to Niger. And, indeed, his verbal report to the CIA was taken by them as evidence that the Iraqis had tried to acquire it. Ditto, of course for his statement about how he was sent. He implied that Cheney sent him, but didn't state it.
As to whether a crime occurred, let me suggest that you read the relevant statute(s). One of the requirements for convicting someone of outing a covert agent is the requisite intent. And part of this is knowing that the CIA is taking affirmative steps to conceal the agent's connection to the U.S. This was pretty clearly negated when Novak's CIA source confirmed that Plame worked there. There is also no real evidence that the defendants knew that she had been covert. And there is a distinct probability that she had not been overseas undercover w/i the previous five years.
So, no, it can't be disproven, as of yet, that no crime occurred, but citing Fitz won't convince anyone that a crime did occur.
Finally, as to Plame's role in sending her husband to Niger. Again, nothing has been proven. BUT, the Senate Intelligence Committee report, signed by members of both parties, indicated that she had first verbally suggested that he be sent, and then followed that up with a memo. While there is no absolute proof yet of her role, it is significant that he was essentially sent by those she worked for or closely with at the CIA (the non-proliferation group in the DO).
In any case, of all the evidence I have seen so far, I think that the defendants are going to have an easier time proving their case than the Wilsons are. In particular, their main defense is that they were working to rebut Wilson's NYT article, and the damage it potentially was doing to their job of selling the invasion of Iraq. That is clearly w/i their job functions, and is cooroborated by any number of known facts. On the other hand, the Wilsons allege that the purpose of all this was retribution. But they have shown scant evidence of that to date. Rather, the main evidence, if you can call it that, is Joe Wilson's constant refrain on that subject. Indeed, he was claiming animus long before ANY evidence to support it appeared.
There seems to be two competing strains of political thought, based on the two political parties. Each has decided that they can move their native party away towards the poles.
Lots of democrats are being told they aren't democrats at all, all the time. The intellectual purity required to remain a democrat becomes more demanding each day it seems. The republicans seem to be trying to force a more conservative zeitgeist into the general animus of their party as well, although it seems far tamer an attempt at intellectual purity. It rarely gets over the griping stage, occasional Harriet Miers moments aside.
Super Geniuses will now explain to us all how unilaterally deciding that persons who used to comprise the vast majority of the persons who identified themselves as democrat are no longer welcome in the democrat party. Don't even call yourself a democrat in Super Genius' presence, unless you're wearing your Truth Out! tee-shirt, or he'll call you the rethuglican he knows you are.
Super geniuses will now explain how expelling the majority of persons from their minority party will make this party larger.
Super geniuses will now explain how this is all a plot hatched by a machiavellian mid level political operative serving a president that will never run for election again.
Super geniuses, feel free to bring up the thermite, if you feel it's necessary.
Brian, you may want to consider the possibility --however remote --that by referring to "intellectual purity," I may have been, how do you say this...hmm.. well, um...making fun of the person claiming intellectual purity when what they're doing is a form of moral and intellectual preening coupled to crabby insane partisan pyrrhic paranoid ranting.
Just a possibility.
Also keep in mind that just because my name is "Cottage," there's only a fifty-fifty chance I'm covered all over with shingles. Words are funny that way.
Now, what were you saying about the thermite?
Ditto what ChrisO says.
As to the preclusive effect of an empty criminal investigation the law is pretty well settled that it means zilch in the criminal context.
So the bottom line is that Cheney would have to slog through discovery and then argue that disclosure violated her right. The tweak (at least in some states would be the SLAPP scenario). I'm not sure how that plays out here.
Also, it's not really clear that Cheney was exercising his first amendment rights. He wasn't speaking as a private individual he was speaking as a govt. official. At least he would likely need to assert in order to pursue the immunity argument. The rights of the government to speak are fairly different from the rights of individuals. (To be sure the govt. has the right to speak as well, but the analysis is far from the same.)
The First Amdnement and immunity defenses are in tension. We don't know any of the facts. The key will be whether the suit is dismissed at an early stage or we get to see the fun of discovery (along with a slew of state secrets defenses). As to the effect of the lack of indictment, it's roughly nil.
I meant to say it would mean zilch in the "civil context".
Post a Comment