No harm, no foul in Joe the Plumber’s First Amendment case

Samuel Joseph Wurzelbacher

Samuel Joseph "Joe the Plumber" Wurzelbacher

What’s Samuel Joseph Wurzelbacher — you know him better as “Joe the Plumber” — been up to lately?

In the 2008 presidential campaign, John McCain, Sarah Palin and the media made Wurzelbacher the icon for Republican opposition to then-Senator and candidate Barack Obama’s economic policies.

Obama was campaigning in Wurzelbacher’s neighborhood. Wurzelbacher asked Obama about the potential tax consequences of opening a plumbing business. Obama’s reply included a statement that he wanted to “spread the wealth.”

The exchange was caught on video and soon after, McCain, during a presidential debate, dubbed Wurzelbacher as “Joe the Plumber.”

Wurzelbacher became a media darling, dispensing criticism of Democratic policies in general and Obama’s in particular.

He’s capitalized on that by running for Congress in Ohio’s 9th District. Earlier this month, he won the Republican primary and will face incumbent Democrat Rep. Marcy Kaptur in the November general election.

He’s also been watching a federal First Amendment and privacy rights lawsuit that he filed swirl right down the drain.

Wurzelbacher’s exchange with Obama drew more than just media attention.

According Wurzelbacher’s suit, several days after his Oct. 12, 2008, encounter with Obama, three high-ranking officials in the Ohio Department of Job and Family Services, all Obama supporters, huddled together. They decided to authorize searches related to Wurzelbacher on child-support enforcement, welfare and unemployment databases, which were at their disposal.

Did they uncover any dirt? We’ll never know because the search results were never made public. But what became known, after the Office of the Ohio Inspector General made inquiries, was that the searches took place.

Wurzelbacher’s suit alleged that all three officials were suspended, and when the dust settled, two had resigned and the third was fired.

He alleged First Amendment and privacy right violations, claiming his exchange with Obama motivated the searches.

The federal district court granted defendant officials judgment on the pleadings.

In the Sixth Circuit, Judge Richard Griffin noted:

In order to adequately plead a First Amendment retaliation claim, a plaintiff must allege:
(1) the plaintiff engaged in constitutionally protected conduct;
(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.

Griffin, joined by Judges Julia Gibbons and Bernice Donald, agreed with the federal district court that Wurzelbacher came up short on pleading an “adverse action.”

He asserts that defendants, without his knowledge, performed several improper database searches under his name. However, the complaint contains no information regarding what, if any, information was discovered. Moreover, if any information was obtained, it was never publicly disclosed. …

Wurzelbacher did not suffer a threat to his economic livelihood … was not defamed … did not endure a search or seizure of property … and did not experience the public disclosure of intimate or embarrassing information … .

In addition, Wurzelbacher was not threatened with a continuing governmental investigation, and he does not allege that defendants’ actions in fact caused a “chill” of his First Amendment rights.

As to that last point, it’s tough to imagine how he could have possibly done so.

The appeals panel also ruled that informational privacy rights are violated when released information may lead to bodily harm or concerns matters of a sexual, personal or humiliating nature.

Wurzelbacher pleaded none of this.

No harm, no foul.

The case is Wurzelbacher v. Jones-Kelley, et al.

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Palin email hacker’s conviction upheld

When Sarah Palin was still governor of Alaska and running for vice president, college student David Kernell hacked her Yahoo! email account with ridiculous ease.

He entered Palin’s email address, culled from The New York Times, on Yahoo!’s home page. He clicked the “forgotten password” button. After entering her birthday, country of residence and ZIP code, courtesy of the Internet, he was presented with Palin’s “secret question,” which, if answered correctly, would provide the opportunity to create a new password.

After a couple of tries, Kernell guessed Palin’s answer to “Where did you meet your spouse?” And just like that, he created a new password, logged on to the account and began checking out her email.

Next, Kernell logged onto 4chan.org, a message board where anonymous posting and offensive material are the norm. He started a thread, in which he said he had hacked Palin’s account. He backed up his claim with screen shots of her inbox and a Palin family photo that was attached to one of her emails.

Reaction on the 4chan message board was mixed. Some anonymous users urged Kernell to share everything. Others claimed they contacted the FBI. When Kernell posted the new password he created for Palin’s account, 4chan site administrators took the thread down.

One 4chan user logged on to Palin’s account, changed the password to prevent any further access and told a Palin staffer what was going on.

Kernell wasn’t through. He logged back on to 4chan, took credit for the hack and explained how he did it. He also said he had wiped his computer clean because he was afraid of an investigation.

His fears were well-founded. His efforts to cover his electronic tracks fell short. A federal grand jury indicted him on several charges. A jury found Kernell guilty of obstructing justice under 18 U.S.C. § 1519 for deleting information on his computer relating to the Palin hack.

On appeal, the 6th U.S. Circuit Court of Appeals affirmed.

The court rejected Kernell’s argument that § 1519, which prohibits destruction of records “in contemplation of” an investigation, is unconstitutionally vague. Kernell argued the statute doesn’t spell out what he must have know or believed about an investigation.

The statute doesn’t need to, said the court.

Courts considering the question have consistently held that the belief that a federal investigation directed at the defendant’s conduct might begin at some point in the future satisfies the “in contemplation” prong. We articulated this principle clearly in United States v. Lanham, 617 F.3d 873 (6th Cir. 2010).

Kernell also argued there was insufficient evidence that he intended to obstruct an investigation when he deleted the Palin hack information from his computer.

Kernell essentially argues that nothing that is written on the internet can be taken seriously, so the entire content of the postings Kernell made should be discounted.

Kernell is correct that we should exercise caution when interpreting internet postings literally, given that they are often “jargon-heavy,” containing obscure references and inside jokes. However, in this case, Kernell’s … posting on 4chan does not require in-depth knowledge of internet culture to interpret.

Kernell expressly states that he deleted the information on his computer out of a fear that the FBI would find it, plainly showing that he took his actions with the intent to hinder an investigation.

Even with proper skepticism directed toward claims made on the internet, a self-incriminating statement such as Kernell’s provides sufficient evidence for a reasonable jury to conclude that he acted with obstructive intent.

The case is United States v. Kernell.