Daily Archives: February 7, 2022

The speech and debate clause of the Constitution protects Congress members from lawsuits for what they say during legislative activity. The Supreme Court held that the remarks of U.S. Sen. William Proxmire (pictured here) in a newsletter criticizing a behavioral scientist's work as a waste of taxpayer dollars was not protected under the speech and debate clause. (AP Photo/Henry Griffin, used with permission from the Associated Press)

The speech and debate clause, which appears in Article 1, section 6, of the U.S. Constitution, was written before the First Amendment and has a more limited scope.

The clause, whose inclusion reflected the development in England of an independent Parliament, states that for any Speech or Debate in either House, they [members] shall not be questioned in any other Place. It follows a provision, now largely moot, that prevents the arrest, for civil cases, of members traveling to or from sessions of Congress.

The general purpose of the speech and debate clause is to protect members of Congress from having to worry that anything they say in the course of legislative activities will implicate them in a lawsuit.

In United States v. Brewster, 408 U.S. 502 (1972), the Court distinguished between purely legislative activities, which the Speech and Debate Clause protected, and merely political activities, which it did not.In Gravel v. United States (1972), the Supreme Court extended the speech and debate clause to protect congressional aides, described as alter egos, for work in connection with such speeches, but limited the privilege to legislative activity.

It refused to extend the privilege to the subsequent publication of materials read in congressional debates in this case the Pentagon Papers.

In Hutchinson v. Proxmire (1979), the Court permitted a defamation suit against a senator for derogatory comments made in a newsletter and in forums other than the Senate floor.

In Office of Senator Dayton v. Hanson (2007), the Court ruled that lower courts did not have jurisdiction in a claim against a U.S. senators office by a former employee. The senators office had sought immunity under the speech and debate clause.

U.S. Senator Robert Bob Menendez from New Jerseyrecently sought to use the speech and debate clause to shield himself from allegations of bribery and public corruption. However, lower courts have ruled that his lobbying activities on behalf of particular clients are not protected, and the Supreme Court decided not to review the case.

John Vile is a professor of political science and dean of the Honors College at Middle Tennessee State University. He is co-editor of the Encyclopedia of the First Amendment. This article was originally published in 2009.

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Speech and Debate Clause | The First Amendment Encyclopedia

State attorney Libby Bakalar cites a statute governing the appeal process for election certifications and recounts during a press teleconference at the Division of Elections office in downtown Juneau on Nov. 26, 2018. A federal judge ruled that Gov. Mike Dunleavy violated her First Amendment rights when he fired her on the day he was sworn into office. (Jeremy Hsieh/KTOO)

Recently, a federal district court judge ruled that Gov. Mike Dunleavy violated the First Amendment rights of a Juneau attorney he fired on the day he was sworn into office in December of 2018.

Rashah McChesney sat down with former assistant attorney general Libby Bakalar to talk about what the ruling means.

The following transcript has been edited for length and clarity.

Rashah McChesney: This is kind of a complex timeline, so lets walk through it. You have this blog, One Hot Mess, for several years. At one point, you start writing about former President Trump, and another attorney and the state complains. The state investigates you and your blog and finds no wrongdoing.

Then Gov. Dunleavy gets elected, and he and his former chief of staff, Tuckerman Babcock, send out these demands for resignations to 800-something employees in the state including you. Something thats recently deemed unconstitutional. You resign. Gov. Dunleavy gets sworn in at noon on Dec. 3, and you find out 20 minutes later that youve been fired.

Thats more than three years fighting for this. What was that process like?

Libby Bakalar: You know, it was really slow and grueling, to be honest. I mean, it wasnt like every single day, something different was happening in the case or anything. Its just, its a long time to be in limbo with something like this. You know, I think I wrote about this in my blog it just a takes a very long time to prove this kind of point. When I filed this case, I was like, Ill be surprised if this is resolved within Dunleavys first term of office. So I fully expected it to take pretty much as long as it took. Its just part of being a litigant.

Rashah McChesney: One of the reasons that Tuckerman Babcock said that he did it was because he didnt like your resignation letter. Im wondering if you could tell me a little bit about that letter and sort of describe what you were thinking when you wrote it.

Libby Bakalar: Well, so the attorney general at the time, Jahna Lindemuth, gave everybody a template to write the resignation letters on. So every attorney who submitted the resignation letter used the same template. I may have added something like, Im doing this under duress, or Im doing it because, you know, Mr. Babcock said I was going to be terminated if I didnt do it. I kind of wanted to make it clear that my resignation wasnt voluntary. But that language about the resignation being involuntary was in the template. And as Judge [John] Sedwick said, another attorney who used the exact same language that resignation letter wasnt accepted. So that was just something that I think that we found completely not credible. And I think when you read the letter, you can see its completely professional and completely anodyne. So, you know, that was clearly pretextual and Sedwick saw right through that.

Rashah McChesney: When you submitted that resignation letter did you expect that they were going to accept it and that you were going to lose your job?

I think in the back of my mind, I was worried about losing my job, but I knew that what I was doing was legal. Thats the thing, right? I knew my work was good. I knew my relationships with my clients and colleagues were good. My work was beyond reproach, right? And I knew I had the constitutional right to speak on these matters. And so my mistake was assuming that these folks were going to comply with the law, right? And I think I must have thought that because, you know, when they called me and told me about this, that I was fired, I was like, I picked up the phone, and I said, Are you calling and telling me Youre firing me? And like, yeah, sorry, basically. So it kind of, you know, wasnt like this huge shock, I guess. But I think deep down, I was like, they couldnt really do this, because this is against the law, right? And they did it anyway. And were, you know, were a firm of lawyers. So I thought, Theres no way that these lawyers are going to carry out this illegal order, from Tuckerman Babcock, and I was wrong about that. I was wrong about that. So I think I was surprised on some level.

Rashah McChesney: This is a little bit of a rabbit hole, but there was another lawsuit against the governors administration, for demanding those resignations. These psychiatrists from Alaska Psychiatric Institute sued over the same thing, over being asked to resign.

Libby Bakalar: Right. The ACLU filed a case on their behalf of at the same time that they filed my case. And in that case, the psychiatrist plaintiffs did not submit resignation letters at all, and because of that, the judge had a different analysis. Theres these two lines of free speech cases like this. And one of them has to do with patronage schemes, and one of them has to do with policymaking and disruption at work. And the former line of cases is what the psychiatrist case was about, because they did not submit those resignation letters. And so the judge was able to find in that case, that the entire scheme itself, the resignation letter scheme itself, the very act of submitting of was essentially an unconstitutional patronage.

Rashah McChesney: So, they were just on some kind of parallel track this whole time?

Libby Bakalar: The judge declined to consolidate those two cases early on, the ACLU asked to have them consolidated and for a number of reasons, he denied that motion. And I think when you see the two orders, in those two cases, you can kind of see why. There are a lot of different issues. Obviously the psychiatrists, they didnt have this blog. There wasnt this whole question of whether they were policymakers there wasnt, there was just kind of some different issues going on, different fact patterns.

So yeah, they were similar in some ways. But in a way, it was the best possible outcome, in my opinion that these two cases were decided separately and on different grounds. Because what the judge did, essentially within one case, he invalidated the resignation demand scheme on its face. And in my case, he invalidated it as applied to me. Its sort of a double whammy. I think in the end, it was good because we got those two separate rulings that essentially validated the illegalality of this entire scheme, both as it was conceived and as it was applied.

Rashah McChesney: Now that its been ruled that they fired you unconstitutionally how do they pay for it?

Libby Bakalar: So thats yeah, thats the question. Its either gonna be through a settlement or a jury trial. And so this is kind of like the analogy would be the sentencing hearing, kind of. After someones convicted, right, theres a whole other sentencing phase. Its kind of like that. So the judge basically, you know, quote, unquote, convicted them on this wrongdoing. And now theres the quote, unquote, penalty phase, thats more or less the analogy in the civil setting. So its over in the sense that the merits of the case have been decided, I mean, they could always appeal for all I know, they might appeal. And that could change the picture somewhat. But we have this ruling that says they broke the law, right? So now its like, well, how do you remedy that? And thats an open question.

Rashah McChesney: There could still be a fair amount of wrangling.

Libby Bakalar: Theres a fair amount of loose ends. Its not just, like, completely over. Its a win there. Its a pretty much an unqualified win, in my opinion, just because for me, just psychologically, I just, this whole time, all I ever wanted was for a judge to say, Yes, this was unconstitutional. Yes, this was illegal. And that finally happened. And so for me, its over in my mind on that front. In terms of my feelings of vindication on the merits of what they did, how theyre going to pay for it, whats going to happen in the future, how this will affect state employees. What I really care about is that this never happened to another state employee ever again. I never want to see a mass resignation scheme. I never want to see a partially exempt, non-unionized state employee some geologist, biologist, architect, you know be forced to resign their job every four years. Thats just insane.

Rashah McChesney: Is this case as simple as a free speech test? And should every state employee go out now and write whatever they want about the president on a personal blog and feel reasonably certain that they wont be fired?

Libby Bakalar: I dont know. I definitely would hesitate to answer that question in the affirmative. I dont think thats true. I think there is a fact-based analysis of like, what positions are really policymaking positions for which political affiliation is actually a job requirement? I dont think the court order really answers that question in any kind of uniform way. It certainly doesnt say every non-unionized state employee can say whatever they want, whenever they want. Like, thats not what it says. But I think what it does do is it sends a message that, you know, at least in some cases, you know, non unionized state employees do have free speech rights. Its not a good faith constitutional use of personnel resources, to demand resignations, and to make personnel decisions, based strictly on peoples off-duty speech, right?

But there again, theres complicated case law, and these complicated tests and balancing tests and applying all these factors and things. So its not as cut and dried as now, you know, every non-unionized state employee, every partially exempt state employee can say and do whatever they want. No, thats not what this order says. But I think it does send a message that there are still, there are limits, you know, to what the government can do to you. And we do have, we still have democracy, at least nominally. And we still have free speech rights in this country. And even if you work for the state, and thats, thats been established now. And I think it was established before it should have been known before. But now its been reiterated in no uncertain terms.

So I think future administrations are going to think twice before they try anything like this ever again. So functionally, I think its going to be there will be much more deliberation about that transition. About who is told to leave their job, and who was forced to resign their job. And under what conditions, right? I think I will have set some precedent, these two cases will have set some precedent in that respect.

Rashah McChesney: Right, because this is something that happens during every governors administration, generally, is that they asked for the resignation, but usually of political appointees, right?

Libby Bakalar: Usually commissioner-level and director-level people, deputy director levels people who are quite comfortably within that policymaking framework, right. Not typically ever, you know, a Fish and Game biologist, or, you know, city water, a state water inspector or something. I mean, jobs that have absolutely no policymaking, you cant even make a good faith argument that these are policymaking jobs. But, you know, that was all based on norms before, and this administration shattered those norms.

Just because it had never been done before. And the reason it had never been done before was because you would never even consider asking non policymaking employees to resign. And yet, they did do that as some sort of, quote, bold new thing or something to quote Tuckerman Babcock. But what it was, it was a flex, you know. It was a flex. It was an intimidation tactic. It worked. You know, for the past four years, three-and-a-half years people have been absolutely terrified in this administration.

I hear from state employees every day, how scared they are working for these people. And with good reason. They have shown absolutely no compunction about violating the law and penalizing people for quote-unquote disloyalty.

So there was like, a few different kind of iterations of this, right? And all of it just sent this general message of intimidation. And the idea that youre, you know, the administration is lurking on your social media, and theyre just waiting to pounce on you for disloyalty. I mean, thats a terrible and completely undemocratic way to exist as a government employee. And it just made me so angry. And I think thats what fueled this entire thing for me, is that I just wanted to do something impactful for the entire state employee workforce.

Rashah McChesney: In that other case that we were talking about earlier were a couple of doctors sued over this resignation letter requirement. The judge ruled that Tuckerman Babcock and and Governor Dunleavy dont have qualified immunity in that situation. Does that apply to your case as well?

Libby Bakalar: No, it doesnt, and I didnt expect it to either. Qualified immunity is a very hard thing to lose. You have to really do something bonkers to lose it. And I was actually surprised in the psychiatrists case to see Dunleavy and Babcock stripped of qualified immunity, because its functions, in practice, like absolute immunity, it really does.

Ive never seen it happen where a government defendant in a civil case like this loses qualified immunity. Its just unusual, its very unusual. Because if government workers were able to be held personally liable in their jobs, no one would ever work for the government, right? So there has to be some form of protection there.

But I think what the judge was saying is that they went so far with this, this was so out of the realm of reason to do this, that they were personally liable for it. I think, in a way, I think qualified immunity is good for government workers. In another sense, it also disincentivizes good faith conduct on the part of people in power in government, because unless its their personal assets on the line in these types of situations somebody is acting in bad faith theres no incentive to obey the law.

Take my case, for example. Ive been gone from the Department of Law for three-and-a-half years. They got what they wanted, they got me gone, Im gone. Im not there, right? Theyve gone on. And now like the damages phase is, you know, the damages go to the state of Alaska, not to them. So they lost nothing. So when you lose qualified immunity, at least that sends the message of you cant just do whatever you want. At some point, theres going to be a point at which you are going to have to worry about your personal assets in these things. And you cant just disobey the law, and expect to completely get away with it every time and have the State of Alaska foot the bill in the end.

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After winning, Juneau attorney reflects on her years-long First Amendment case - Alaska Public Media News

The U.S. Court of Appeals for the Seventh Circuit has ruled that an employees criticism of their supervisor for alleged misconduct is not protected under the First Amendment.

In this case, the plaintiff was employed as a customer service representative in the clerk-treasurers office in Bargersville, Indiana. The plaintiffs duties included collecting bills and setting up payment plans for utility customers. In late 2017, the plaintiff found that a wealthy resident of the area had failed to make utility payments and had the customers services disconnected.

Soon after, the decision was countermanded by the clerk-treasurer who had services reconnected after business hours. The plaintiff felt that the clerk-treasurers decision was influenced because the resident was a prominent figure in the area and because the two were business partners.

The plaintiff confronted the clerk-treasurer over the matter and stated that she believed all customers should receive uniform treatment no matter their wealth and status. Soon afterward, her duties were shifted away from handling disconnections in favor of more general customer service functions. Approximately five months later, the plaintiff made a mistake in handling fee collections that resulted in the town losing the opportunity to collect approximately $1,000 in fees. The clerk-treasurer fired the plaintiff soon afterward.

The plaintiff filed a lawsuit against both the town and the clerk-treasurer, alleging that she was fired in retaliation for exercising her right to free speech under the First Amendment by confronting the clerk-treasurer over the decision to reconnect the prominent residents utilities. The trial court acknowledged that the first amendment protects the right of a public employee to, in particular circumstances, speak of matters of concern as a citizen.

However, the court also found that in the time in which the criticism took place, the plaintiffs job duties included handling utility disconnections. As a result, criticizing the clerk-treasurer for their handling of utility disconnections amounted to a complaint within the plaintiffs area of responsibility and was not protected by the constitution.

Further, the court noted that even if the complaint was constitutionally protected, there was still insufficient evidence to show that the issue was a motivating factor in the dismissal. There was a five-month gap between the plaintiffs complaint and the termination, which the court noted was too distant to establish a causal link between the incidents.

In response, the plaintiff argues that the timeframe should be measured from the point of the criticism to the point in which the clerk-treasurer decided to fire her, which would reduce the timeframe to only three months. However, the court found that the relevant measure to consider in judging whether or not the timing is suspicious would be between the protected speech and the actual adverse employment action, not the decision process preceding it. Further, the court noted, based on court precedent, even the three-month time frame would not be enough.

This case demonstrates the importance of properly documenting employee misconduct, including performance reviews. These can provide significant protection against claims of wrongdoing in cases where adverse action is necessary.

Pre-employ offers free resources to help you stay compliant in your hiring practices. Check out our guide on 5 Tips To Avoid FCRA Non-Compliance to keep your company up-to-date.

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Seventh Circuit Finds the First Amendment Did not Protect Employees Complaints About Their Supervisor - Pre-Employ.com

A councilwoman in OFallon, Missouri, has been impeached and removed after raising questions about the municipalitys now former police chief.

Katie Gatewood, a former law enforcement officer, had learned that the man hired as chief in 2020 had been the subject of controversy at his previous post in Conroe, Texas. According to a report by officers in the Texas Rangers, in 2017, Philip Dupuis responded to a domestic violence call that involved a fellow officer who was one of his friends. According to another officer who responded to the scene, Dupuis seemed more concerned with what would happen to his friend than about the victim.

Gatewoods interest in determining what really happened in Conroe has now led to her ouster. Her attorney, Dave Roland of the Freedom Center of Missouri, said Gatewood made several public records requests and phone calls to learn more information about Dupuis actions. Her colleagues accused her of violating city ordinances by making those inquiries and, last week, voted to impeach and remove her from office.

Those actions have Roland concerned. Gatewood, he said, merely exercised her right to free speech.

It raises incredibly severe First Amendment consequences for the voters, as well as for the elected officials who are being threatened with removal from office, he told St. Louis on the Air.

Roland filed a lawsuit against the city on Gatewoods behalf three days before she was ousted by the council. In it, he argues that the councils actions were retaliatory and that the disciplinary panel against her was biased and that these actions violated her constitutional rights.

Listen: OFallon councilwomans removal raises First Amendment concerns

They said, essentially, that it was illegal for her to ask those questions under city law, Roland said.

U.S. District Judge Audrey Fleissig declined to intervene before the impeachment vote. But Roland is hopeful that she will now consider the matter ripe for judicial review. On Wednesdays show, Roland said he plans to approach the federal judge with an updated complaint within a month.

As for Gatewood, her term on the council ends in a little over a year.

We would love to see Katie restored to the council, said Roland, but even if she ultimately is not, we intend to get a ruling as to whether the removal was unconstitutional.

Dupuis resigned from the chiefs job in OFallon last June.

St. Louis on the Air brings you the stories of St. Louis and the people who live, work and create in our region. The show is hosted by Sarah Fenske and produced by Alex Heuer, Emily Woodbury, Evie Hemphill and Kayla Drake. Jane Mather-Glass is our production assistant. The audio engineer is Aaron Doerr.

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Ousted O'Fallon councilwoman will continue to fight - St. Louis Public Radio