- The Washington Times - Thursday, August 5, 2010

Joe the Plumber” has lost his fight against the state of Ohio in a decision his attorney called a “frightening” green light for government officials to snoop into people’s private information.

A judge dismissed the federal lawsuit Samuel “Joe” Wurzelbacher filed against the state and three state employees who accessed his confidential information, prompting a state investigation that concluded the searches were not illegal but did violate protocol.

Mr. Wurzelbacher, also known as “Joe the Plumber” since the 2008 election threw him into the public spotlight, claimed that Helen Jones-Kelley, Doug Thompson and Fred Williams, whom the suit says were supporters of Barack Obama’s presidential campaign, violated his free-speech and privacy rights by running searches of confidential information.

The Air Force-trained plumber from the Toledo area became a symbol of American small-business owners after asking Mr. Obama how the candidate’s tax plan would affect his ability to buy a small business. The video of the exchange went viral and Republican John McCain picked up his cause by making several references to “Joe the Plumber” during the third presidential debate.

The three government employees named in the suit were the top-ranking workers at the Ohio Department of Job and Family Services, and had access to databases in multiple departments’ databases.

U.S. District Judge Algenon L. Marbley dismissed the suit, saying that Mr. Wurzelbacher did not prove sufficient harm resulting from the incident, citing cases in which plaintiffs suffered more significant harm to their career or reputation.

“Without allegations of a more specific and concrete nature as to the harms he suffered, Plaintiff does not meet the constitutional threshold required to state a claim for First Amendment retaliation,” wrote Judge Marbley, a 1997 appointee of President Clinton.

Tom Fitton, president of public interest group Judicial Watch, which represented Mr. Wurzelbacher, said the dismissal sends the wrong message to ordinary Americans.

“The implications of this court decision are frightening,” he said in a statement. “Essentially, the court has said that government officials can feel free to rifle through the private files of citizens without fear of being held accountable in court.”

Mr. Fitton told The Washington Times that the dismissal may cause Americans to hesitate to exercise their First Amendment rights and speak openly, for fear of politically motivated retaliation.

Judge Marbley said Mr. Wurzelbacher’s claim of emotional distress, embarrassment, and harassment “did not meet the constitutional threshold required to state a claim for First Amendment retaliation.”

“We don’t agree with the judge’s decision in this case,” said Mr. Fitton. “The judge set too high a standard for Mr. Wurzelbacher to get his day in court.”

The defendants did not escape unchastened, however.

The Inspector General found “no legitimate agency function or purpose for checking on [Mr. Wurzelbacher‘s] name through the [confidential databases] or for authorizing these searches,” and called the check a “wrongful act.”

Two of the three officials have been fired, and one has resigned since the incident.

Mr. Fitton said Judicial Watch will be filing an appeal on behalf of Mr. Wurzelbacher. “Justice was not served in this decision,” he said.

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