Stealing First.

Stealing First.

Stealing First.

The law, lawyers, and the court.
July 18 2006 4:07 PM

Stealing First

Dick Cheney as the next First Amendment poster child.

In an administration not known for its love of the Bill of Rights, Vice President Richard Cheney may soon find himself in a new role: defender of the First Amendment.

Along with several other current or former administration officials, Cheney is being sued by Valerie and Joseph Wilson, who claim that, in response to an anti-administration op-ed Mr. Wilson published in July 2003 in the New York Times, the defendants violated the Wilsons' constitutional rights by organizing a vicious whispering campaign against them. One result of this campaign was a newspaper column, authored by journalist Robert Novak, that outed Ms. Wilson (nee Valerie Plame) as a CIA operative.


Now, Cheney's first instinct may be to assert, brusquely, that he is legally immune from damage suits challenging his actions as vice president. In 1982, the Supreme Court held, in Nixon v. Fitzgerald, that Richard Nixon could not be sued for damages by Ernest Fitzgerald, a government employee whom Nixon fired after Fitzgerald had blown the whistle on the administration. According to the court, even if Nixon had acted unconstitutionally, he was absolutely immune from a civil damage suit given that he was acting within the "outer perimeter" of his presidential powers, which include the power to fire executive-branch subordinates. Cheney may well feel that the same basic rule should apply to vice presidents, and that he, too, should be absolutely immune from civil liability, even if he violated the Constitution. (On this imperious view, constitutional accountability is for the little people.)

But does Cheney really want to go down in history next to Richard Nixon? Wouldn't it make more sense for him to position himself in the lawbooks alongside John Peter Zenger?

Zenger—a publisher sued for libel in the 1730s—famously defended freedom of expression, and Cheney should do likewise. In other words, 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.

Of course, not all words are absolutely protected by the First Amendment. For example, the words "you're fired" may be properly viewed as constitutionally unprotected conduct rather than pure speech. So, too, the words "kill him" when the Godfather is ordering his hit man into action.

The Wilsons' suit in effect claims that the outing of Ms. Wilson is like a hit ordered by a mobster. But is it? While there are criminal laws on the books that prohibit the improper outing of CIA agents, it does not appear that these laws were violated. Indeed, the special prosecutor in charge of investigating the leak, Patrick Fitzgerald, has not brought any criminal charges under the anti-outing laws, even as he has filed other—perjury-related—charges growing out of the Wilson affair.

Of course, the Wilsons need not prove that the leak was criminal to win their civil suit. For example, although firing a government whistle-blower to punish his speech might not be criminal, it might nevertheless be unconstitutional. But it is at precisely this point in the legal argument that Cheney should reiterate that he and his fellow whisperers were speaking to responsible journalists, and that the whisperers' purpose was to give the journalists background for understanding the possible bias of Mr. Wilson and certain groups within the CIA.