Cheney’s leaking represents an abuse of power, not freedom of speech.

Cheney’s leaking represents an abuse of power, not freedom of speech.
By Erwin Chemerinsky
Posted Tuesday, July 25, 2006, at 3:06 PM ET
The top government officials who revealed that Valerie Plame Wilson was a secret operative for the Central Intelligence Agency egregiously abused their power and inflicted great harms on Ms. Wilson and her husband, Joseph Wilson. Yet a recent article in Slate suggests that such leaks were not only legal but are in fact protected speech under the First Amendment. To give this speech First Amendment protection would turn the abuser into a victim and undermine basic principles of tort law, espionage law, and the Constitution.

Vice President Richard Cheney, his former Chief of Staff Lewis Libby, and President Bush’s senior policy adviser Karl Rove disclosed highly sensitive information to the media, entirely out of a desire to retaliate against Valerie Plame Wilson’s husband, Joseph Wilson. Wilson’s crime? Describing in a New York Times op-ed the falsehoods contained in the president’s State of the Union address. This unprecedented action—revealing the identity of a secret operative for partisan gain—effectively ended Valerie Plame Wilson’s career in the CIA and put her, her family, and those who worked with her in danger.

Joseph Wilson and Valerie Plame Wilson have filed a civil suit for money damages. (Disclosure: I am co-counsel in that suit.) Their case alleges that Cheney, Libby, Rove, and others violated the Wilson’s constitutional rights, engaged in a conspiracy to violate their civil rights, and committed torts such as invasion of privacy by publicly disclosing private facts.

Recently, Yale Law School’s professor Akhil Amar wrote for Slate that Vice President Cheney’s conduct, and by implication the actions of Libby and Rove as well, are protected by the First Amendment. Professor Amar analogizes Cheney, Libby, and Rove to John Peter Zenger and whistle-blowers in general.

It is hard to imagine a less apt analogy. Zenger was a publisher in the 1730s who was sued for defamation for publishing important criticisms of the government. He raised freedom of the press as a defense. Whistle-blowers expose government wrongdoing and thus perform an important public service, often putting their own careers in jeopardy. But unlike Zenger and government whistle-blowers, Cheney, Libby, and Rove did nothing noble in disclosing Ms. Wilson’s identity as a secret agent. The information they leaked gave the public no information they needed to know. There was no greater good served by this leak. They simply ruined her career and put people in danger out of a partisan desire to embarrass a critic of the administration.

As United States Court of Appeals for the District of Columbia Judge David Tatel observed Feb. 15, 2005: “An alleged covert agent, Plame evidently traveled overseas on clandestine missions beginning nearly two decades ago. Her exposure, therefore, not only may have jeopardized any covert activities of her own, but also may have endangered friends and associates from whom she might have gathered information in the past.” Judge Tatel referred to the leak as a “serious breach of public trust.”

Consider also that the disclosure about Plame would have been unlawful had it been made by an anti-CIA campaigner, and it was just as unlawful when made by the vice president’s men. If the First Amendment protects Cheney’s leak, it would seemingly protect a similar leak by an enemy of the CIA.

The fact that Cheney, Libby, and Rove accomplished all of this by speaking to reporters does not somehow immunize their speech under the First Amendment. Although professor Amar is correct that even government officials enjoy freedom of speech, that freedom is not without limits. The Supreme Court has consistently said that speech by government employees is protected only if it involves a matter of public concern. Ms. Wilson’s status as a secret agent was obviously not of any public concern. Mr. Wilson’s claims about President Bush’s veracity were, on the other hand, a matter of public concern. But if the vice president wanted to criticize Ambassador Wilson, he certainly did not need to disclose Ms. Wilson’s undercover employment to do so.

Moreover, even speech of public concern is not always protected by the First Amendment. The law has long recognized, for example, claims against speech that invades privacy by publicly disclosing private facts. Both the Constitution and tort law allow claims for such invasion of privacy, and the fact that Valerie Plame worked as a secret operative for the government was surely private.

Conduct that ruins a person’s career and puts her in danger for no reason other than partisan gain simply is not protected by the First Amendment. Quite the contrary, the actions of Cheney, Rove, and Libby violated Joseph Wilson’s free-speech rights by
punishing him for speaking out against the administration. The law is clear that government officials act unconstitutionally when they punish people for exercising their right to speak.

Also, the law is clear that arbitrarily discriminating against a person violates the Constitution, even when it takes the form of spoken words. For instance, employers are liable if they sexually harass an employee—even if that harassment comes only via speech. Ms. Wilson was subjected to such arbitrary and discriminatory treatment by Cheney, Rove, and Libby. They cannot cloak such conduct in the First Amendment in order to absolve themselves of wrongdoing.

Finally, professor Amar points to the absence of any criminal charges—except against Lewis Libby—to imply that they have done nothing wrong. But that has no relevance at all in determining whether Mr. and Ms. Wilson have a civil cause of action, or whether the First Amendment protects the speech of Cheney, Libby, and Rove. The complaint filed by Mr. and Ms. Wilson alleges violations of free speech, denial of equal protection, and invasion of privacy. None of these are crimes, but all are a basis for civil liability. The lack of criminal charges hardly makes the civil claims go away.

Professor Amar’s invocation of the vice president’s free-speech rights simply misses the point. The First Amendment does not protect government officials intentionally inflicting great harm on others, regardless of whether the harm arises from the (unlawful) disclosure of confidential information, and even if they do so through their speech. Cheney, Libby, and Rove abused their power and should be held accountable. That is why the Wilsons filed a civil suit, and that is why they should prevail.

Erwin Chemerinsky, Alston & Bird professor of law and political science at Duke University, is co-counsel for Joseph Wilson and Valerie Plame Wilson in Wilson v. Cheney.

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