Legislators’ Freedom of Speech

Under the speech or debate clause of our Constitution, members of Congress are absolutely immune from being prosecuted or formally questioned by the executive branch, grand juries, or the courts for any speech or debate in either House. This broad protection for legislators’ freedom of speech derives from events that occurred in England and the colonies beginning more than 200 years before independence. Responding to a private criminal complaint brought against a member of the House of Commons for a vote he had cast, Parliament in 1512 established that its members could not be indicted in court for actions taken in Parliament. Over time, the parliamentary privilege of free speech and debate was invoked primarily by legislators who criticized Crown policies and conduct as protection against punishment by the executive.

In the century preceding the American Revolution, colonial assemblies occasionally asserted the free speech privilege during a conflict with their royal governors. At the Constitutional Convention, the speech or debate clause was incorporated with no opposition and with little substantive discussion.

Today, the key public policy rationale for conferring this absolute immunity remains the need to protect responsible and uninhibited legislative judgment. Members of Congress are regularly accountable (through elections) in their special capacity as legislators. The speech or debate clause contemplates the possibility that the public, or executive branch officials, may overreact when disappointed or offended by what senators or representatives have said or done as legislators. The clause guards against the risk that individuals or groups frustrated by legislators’ performance will seek to vent their frustrations in court rather than the voting booth.

Although the language of the clause refers only to speech or debate in either House, the Supreme Court in a series of decisions in the 1960s and 1970s extended the immunity to many forms of legislative conduct that contribute to our lawmaking enterprise. In addition to covering speeches on the House or Senate floor, the clause also protects votes cast on bills, participation in committee hearings, circulation of information to fellow members of Congress, and issuance of investigatory subpoenas.

On the other hand, the clause does not encompass all official responsibilities performed by legislators. Important congressional functions that have been deemed unprotected include sharing legislative materials with the public and communicating with administrative agencies on behalf of constituents. Thus, for instance, the Court has held that a senator may be sued for defamation on the basis of something he or she said in a press release or constituent newsletter even if the exact same words spoken on the Senate floor are protected by the clause.

As set forth in 1972 in Gravel v. United States, the Court’s test when reviewing legislators’ assertions of absolute immunity is whether the speech or conduct in question is an integral part of the deliberative and communicative processes by which members participate in lawmaking activity. One could certainly argue that newsletters or press releases aimed at raising public awareness on key legislative issues, or complaints to agencies on behalf of constituents about the failure to enforce or abide by a statute, are important parts of the business of legislating. The Court, however, has emphasized that these activities also have other purposes (like increasing name recognition among potential voters, or exerting control over agency performance) that extend beyond lawmaking itself.

Unless the clause’s absolute protection for legislators’ speech is limited in some way, it could cover almost everything senators and representatives do in their quest for legislative success. Members of Congress have broad authority under Article I of the Constitution, and they have on occasion shown they are capable of abusing that authority. The Court’s reservations as to what is an integral part of members’ legislative performance may at bottom reflect a concern that the Bill of Rights must impose certain restraints on congressional investigations into the lives and affairs of citizens. Because legislators’ mistreatment can harm the civil rights of private individuals, the Court has taken a relatively narrow view of what is integral so as to reduce the circumstances in which absolutely privileged legislative conduct would infringe on other constitutionally protected interests.

One unresolved issue concerning the speech or debate clause is whether it covers legislators’ personnel actions (hiring or firing of staff). The Supreme Court has held that members’ key staff, who function in effect as legislative alter egos, are themselves entitled to protection under the clause in appropriate circumstances. Some commentators have argued that the Court should shield congressional employment decisions that involve this inner circle of advisors, because senators and representatives must have total discretion to select such loyal and trusted aides to fulfill their core legislative responsibilities. Others contend that employment decisions should never be protected by the clause, because the selection of staff is not an integral part of the legislative process even if such staff are an essential precondition to sound legislative decision making. Lower federal courts are divided on this issue, and the Supreme Court has yet to address it.

Forty-three state constitutions contain a provision similar to the speech or debate clause. Although many of these states’ clauses have never been applied in the courts, some recent state court interpretations have been less protective of legislators’ free speech than the settled federal approach to these matters. For instance, two trial courts in New York have held that their state’s speech or debate clause protects legislators from liability, but legislators may still be compelled to testify in a lawsuit to which they are not a party. And in Michigan, an appellate court has held that the state’s speech or debate clause shelters individual legislators’ records and files but does not protect legislative committee materials during civil litigation. These interpretations, and others narrowly construing state speech or debate clause protections, suggest that state senators and representatives may not always enjoy the same degree of protection for their speech as members of Congress do.

JAMES J. BRUDNEY

References and Further Reading

• Clarke, Mary Patterson. Parliamentary Privilege in the American Colonies. New Haven: Yale University Press, 1943.
• Gordon, Sir Charles, ed. Erskine May’s Treatise on the Law, Privileges, Proceedings, and Usage of Parliament. 20th Ed. London, Butterworths, 1983.
• Brudney, James J., Congressional Accountability and Denial: Speech or Debate Clause and Conflict of Interest Challenges to Unionization of Congressional Employees, Harvard Journal on Legislation 36 (1999) 1–76.
• Huefner, Steven F., The Neglected Value of the Legislative Privilege in State Legislatures, William and Mary Law Review 45 (2003) 213–309.
• Reinstein, Robert J., and Harvey A. Silverglate, Legislative Privilege and the Separation of Powers, Harvard Law Review 86 (1973) 1113–1182.

Cases and Statutes Cited

• Abrams v. Richmond Co. S.P.C.C., 479 N.Y.S.2d 624 (Sup. Ct 1984)
• Browning v. Clerk, U.S. House of Representatives, 789 F.2d 923 (D.C. Cir 1986)
• Davis v. Passman, 544 F.2d 865 (5th Cir. 1977), rev’d on other grounds 442 U.S. 228 (1979)
• Doe v. McMillan, 412 U.S. 306 (1973)
• Dombrowski v. Eastland, 387 U.S. 82 (1967)
• Eastland v. U.S. Servicemen’s Fund, 421 U.S. 491 (1975)
• Gravel v. United States, 408 U.S. 606 (1972)
• Hutchinson v. Proxmire, 443 U.S. 111(1979)
• Kilbourn v. Thompson, 103 U.S. 168 (1880)
• Lincoln Building Associates v. Barr, 147 N.Y.S.2d 178 (Mun.Ct 1955)
• Michigan Mutual Insurance Co. v. Dept. of Treasury, nos. 178228, 178230, LEXIS 2245 (Mich. App.Ct 1996)
• United States v. Brewster, 408 U.S. 501 (1972)
• United States v. Johnson, 383 U.S. 169 (1966)
• U.S. Constitution, Article I, section 6, clause 1