Unconstitutional {UPDATED}

While I’m not big fan of Senator Fort or the ACLU (I’m sure the feeling is mutual), I think he is right on the money on this. I understand the intention of the law, but I think a court will most likely find it unconstitutional.

Nonetheless, I think an argument can be made as to its legitimacy with respect to the filer of a complaint, though not necessarily incidental witnesses. A requirement to keep quiet about a complaint being filed gives a disincentive to those who would file a complaint, however frivolous, to generate a media spectacle in a campaign season.

[UPDATE] I’ve been informed that Vincent Fort not only sued Renee Unterman in her official capacity, but also in her individual capacity. That is a total breakdown in decorum, but Fort being who he is, it is unsurprising.

Having dealt with issues like this before, I’m pretty sure there is a good chance of Unterman, in her individual capacity, being thrown out of the suit. If I remember my law correctly — at it is an area in which I practiced — an individual public officer can only be sued in their individual capacity if they enforced a law or rule that they knew or had reason to know was unconstitutional. The test for that is whether the courts have ruled on the same or a very similar issue in the federal circuit wherein the individual was sued.

To my knowledge and my researching of the matter, this has not happened, so Unterman should be fine and Fort should be censured by his own party for suing Unterman in her individual capacity. Suing in her official capacity is proper. But suing in her individual capacity crosses a line the Dems don’t want to cross. It’ll just open a bag of worms. We’ll start down the path of both sides suing each other individually like they do in Washington.

That’s bad form.