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.

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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.

The Wilsons do not allege that Cheney said "kill Valerie"—and in general, courts should not lightly assume that criticism of a government agency (such as the CIA) is the same as an open call to assassination or some other express advocacy of illegal violence. If courts did indulge this assumption, Cheney should add, a great many government critics would be unduly vulnerable to prosecution or civil liability. Given that even ordinary citizens have robust rights of free expression, so should vice presidents, Cheney should argue. For he, too, was in effect criticizing a certain public official (Mr. Wilson, a longtime public servant) and a certain government agency (the CIA).

In short, rather 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.

Coming from Mr. Cheney, any effort to claim this First Amendment high ground might initially be greeted with skepticism. But, in truth, several aspects of the Wilsons' legal complaint—filed last Thursday in federal district court—should trouble thoughtful civil libertarians:

Casual use of the "T" word. The complaint opens—quite oddly for a legal document—by quoting the first President Bush railing against "insidious … traitors" who compromise undercover operatives. But treason is defined very narrowly in the Constitution, and for good reason. Not all disclosures—even of sensitive information—are treasonous or even unpatriotic. A great deal depends on intent and context, and to use the "T" word loosely is to engage in McCarthyism. Loose talk of treason is especially dangerous in a legal document seeking to invoke the coercive power of the judiciary. Indeed, if the complaint's loose language were taken seriously, it would pose a serious threat to responsible journalists who are in the business of making hard decisions about what information should properly be brought to the public's attention. If the outing of Valerie Wilson was really treason, then journalist Robert Novak would be in dire legal peril. Yet special prosecutor Fitzgerald has cleared Novak of criminal wrongdoing.

Promiscuous use of tort law to chill public expression. The Wilsons also complain that defendants committed the tort of "publication" of "private facts." This is a tort that has a proper place in American law—as when, for example, a newspaper gratuitously publishes an account of an otherwise nonnewsworthy person's closeted sexual identity or publishes graphic and unconsented-to telephoto pictures of such a person in his bathroom. But courts and commentators have stressed that this tort needs to be very strictly limited to protect First Amendment rights of speakers to publish politically important facts and thereby vindicate the public's right to know. The truthfulness of the published information is not generally a defense to this tort. Thus, this tort, if construed as broadly as the Wilson complaint urges, could become as dangerous as libel law was in the pre-Zenger era, when truth was no defense. If the Wilsons were to win on this ground, we could well end up with an oppressive tort-law version of an Official State Secrets Act, not merely cloaking a private domain for private citizens but also shielding the press (and the public) from potentially relevant political information about public servants. And if Cheney and his gang are liable, why not Novak and his newspaper? The newspaper, after all, is where the "widespread publication" that the Wilsons complain of actually occurred.

Seeking damages without strong proof of financial harm. Another flaw of old-fashioned libel law was that a plaintiff could receive a massive damage award even though there was no proof that a libelous expression caused him any real financial harm. But in 1964 the Supreme Court put an end to this racket in the famous First Amendment case of New York Times v. Sullivan. The Wilson complaint seeks unspecified damages. Unmentioned in the complaint is a major (and apparently quite lucrative) book deal just signed by Ms. Wilson.

The threat of broad civil discovery at the expense of journalistic privilege. Perhaps the Wilsons' real goal here is not to win the lawsuit but simply to get civil discovery against the defendants, thereby enlisting the coercive power of the courts to oblige the defendants and other witnesses to tell all—to divulge who said what to which journalist when. In a criminal case, journalists' claims of privilege may sometimes properly take a back seat to the broader public interest in catching the bad guys or clearing an innocent defendant who has been wrongly accused. But to allow every private plaintiff with a private grudge to compel journalists to divulge their sources is a very different matter. Here, too, the Wilsons' complaint may raise a serious threat to the very press freedom that it purports to champion.

There is much to criticize in Cheney's and his allies' conduct during this whole sorry mess. But it is doubtful that tort law a la Wilson suit is the solution. Much as it might gall him to do so, Cheney's best response to the Wilsons' complaint would be to wrap himself in the First Amendment and fight. And while he is at it, perhaps he might read the amendment—heck, the whole Bill of Rights!—and think of the rest of us.

Akhil Reed Amar is a Yale law professor and author of America’s Unwritten Constitution: The Precedents and Principles We Live By.

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