Thursday, July 13, 2006

Utterly Frivolous   [George Conway]

The complaint in Wilson v. Libby is here. And the claims it asserts are just silly. The closest that the Wilsons come to a viable claim – and this doesn’t even come close – is the first claim, that the defendants violated their freedom of speech. There are cases that hold that, under some circumstances, public employees who are subjected to retaliatory employment actions for expressing their political opinions have suffered violations of their First Amendment rights. But Valerie Plame Wilson, unlike her husband, didn’t exercise her freedom of speech; to the contrary, the claim is that the defendants harmed her by bringing her into the public eye. Thus, even assuming (which is highly debatable) that the defendants somehow acted to punish her through her employment, they weren’t punishing her for the exercise of her First Amendment rights. So she has no claim. As for Joe Wilson, even if you assume (again, a debatable proposition) that the defendants acted to punish him for his op-ed in the New York Times, he wasn’t a public employee, and he didn’t suffer any employment action. The only action the defendants arguably took against him is that they caused him to suffer criticism in the press. So in order for Mr. Wilson to state a First Amendment claim, a court would have to hold that any private citizen who criticizes the government and then is criticized himself by a public official can sue for a violation of his First Amendment rights. That is simply absurd.

As for the other claims – for denial of equal protection, infringement of the right to privacy, and so on – they aren’t even worth the pixels they take up on your screen.

UPDATE: The New York Times puts it mildly here when it observes that "the suit is also likely to face major hurdles, notably the issue of whether the officials have any immunity for their actions." Alluding to Harlow v. Fitzgerald, 457 U.S. 800 (1982), the paper adds that:

The general standard from a 1982 Supreme Court case is that federal officials may be sued for violating someone’s constitutional rights if a reasonable person would believe they had violated “clearly established law.”

The pretrial motions in the Libby case have not, as yet, produced evidence that there was any willful effort to leak Ms. Wilson’s identity.

You don't say.

And, as a Washington Post story points out, the defendants have First Amendment rights too:

Though Plame alleges her opportunities to work undercover for the CIA have been permanently spoiled, she was not fired.

As a result, said Akhil Amar, a law professor at Yale University, Cheney can claim that "what he did was merely speak rather than fire. . . . He can wrap himself in the First Amendment."

07/13 05:11 PM