Private Citizen Subjected to Smear Campaign by Government Officials: "
Can a private citizen be subjected to a smear campaign by government officials for merely questioning a politician? That’s the issue at the heart of the lawsuit on behalf of Joe Wurzelbacher, known to most as “Joe the Plumber.”
A federal district court (erroneously in our view) dismissed Joe’s claims. Judicial Watch lawyers have since filed an appeal for Mr. Wurzelbacher in the United States Court of Appeals for the Sixth Circuit.
Here is why we’re asking the appellate court to review the lower court’s decision, according to our brief, which you can read in its entirety here:
Ultimately, review of the issues in this case is important, not just to hold these state officials accountable for this abuse of their power and the harm inflicted on Mr. Wurzelbacher, but because it goes to the heart of free expression and political participation in this nation.
Private citizens should not have to worry whether their letter, phone call, or simple question to a political candidate will cause them to be targeted for investigation. Mr. Wurzelbacher and all Americans should have the freedom to openly participate in their government without fearing reprisal from partisan government officials.
Now let’s quickly review the facts of this lawsuit.
As you may recall, during the 2008 presidential campaign, Mr. Wurzelbacher was throwing a football with his son in the front yard of his home when then-candidate Barack Obama and his campaign entourage passed by. Mr. Wurzelbacher, an employee of a small plumbing business, was given the opportunity to ask Obama a question about his tax policies affecting small businesses. Obama responded by famously saying, “It’s not that I want to punish your success; I just want to make sure that everybody who is behind you — that they’ve got a chance at success, too. I think when you spread the wealth around, it’s good for everybody.”
This exchange between Obama and Mr. Wurzelbacher “went viral,” exploding into the news and on the web, garnering significant public attention. In fact, the exchange even made its way into the third presidential debate held on October 15, 2008.
Clearly, “Joe the Plumber” had struck a raw nerve with the Obama campaign. People saw the president’s comments for what they were: an endorsement of socialism. And Barack Obama was both embarrassed and on the defensive just weeks before the election.
Well, just days after Mr. Wurzelbacher asked his question the three highest ranking employees of the Ohio Department of Job and Family Services at the time – who all just happened to be supporters of Obama – launched a dirt-digging expedition to try to smear “Joe the Plumber.” They instructed staff to access confidential office databases to retrieve sensitive information about Mr. Wurzelbacher, in an effort, it seems, to punish him for daring to question candidate Obama.
An Ohio Office of Inspector General report would later conclude that these investigations by the three government officials had “no legitimate agency function or purpose” and constituted a “wrongful act.”
Mr. Wurzelbacher’s suit was filed on March 5, 2009. And on August 4, 2010, the United States District Court for the Southern District of Ohio granted the defendants’ motion to dismiss the lawsuit, prompting the appeal.
There are two constitutional rights at issue here: The First and Fourteenth Amendments.
As our lawyers explain to the appellate court, there is a three-part test to determine when there has been a violation of the First Amendment: “1) the plaintiff engaged in constitutionally protected activity; 2) an adverse action was taken against the plaintiff that would deter a person of ordinary firmness from continuing to engage in that conduct; and 3) the adverse action was motivated at least in part by the plaintiff’s protected conduct.”
The lower court does not dispute points 1 and 3. However, the court ruled that Mr. Wurzelbacher did not effectively plead an “adverse action.” Judicial Watch disagrees. As alleged in detail in our brief, “the knowledge of Defendants’ improper investigation, prompted by Mr. Wurzelbacher’s First Amendment activities, caused him to suffer ‘emotional distress, harassment, personal humiliation, and embarrassment.’” Such injuries have been determined valid and compensable by court precedent (including precedent set by the U.S. Supreme Court).
Regarding the Fourteenth Amendment, specifically the “right to be let alone,” the District Court ruled that the right to privacy is only triggered when the individual’s interests at stake relate to “those personal rights that can be deemed ‘fundamental’ or ‘implicit in the concept of ordered liberty.’”
Fair enough. But then the court advanced the argument that the improper dirt-digging done by the three government officials did not rise to that level. Again, we disagree: “It is certainly ‘implicit in the concept of ordered liberty’ that government officials cannot set out to violate the law and a person’s privacy by conducting improper investigations for improper reasons.”
This is an important lawsuit, especially as the Obama administration continues to compile an “enemies list” and to retaliate against those who disagree with its now all too apparent socialist agenda.
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