The Supreme Court has been asked to decide a case that combines two of the most charged issues in the US at the moment: trans participation in sports, and attacks on voting rights.
The case’s inciting incident came in February, when Laurel Libby, a Republican elected to the Maine House of Representatives, wrote a Facebook post criticizing a transgender athlete who won a statewide pole vaulting championship. In that post, Libby did not blur or otherwise obscure the high school student’s face, and she named the student and her school.
In response, Maine House Speaker Ryan Fecteau, a Democrat, asked Libby to remove the post due to concerns “that publicizing the student’s identity would threaten the student’s health and safety.” When Libby refused, a majority of the state house passed a resolution censuring Libby — that resolution reiterated Fecteau’s concern that shining such a spotlight on a high school student “may endanger the minor.” It also highlighted a study showing that “transgender people are over four times more likely to be victims of violence.”
Thus far, all of this is fine as a constitutional matter. While Libby has a First Amendment right to speak out against trans rights, government entities like the Maine House also have a right to express their own viewpoints on controversial issues. And that includes formally denouncing statements by individual lawmakers that a majority of the legislature finds repugnant.
But Maine’s House rules also provide that Libby “may not be allowed to vote or speak” on the House floor until she apologizes for the conduct that resulted in her censure. She refused to do so, and thus has effectively been stripped of her ability to vote on legislation since last winter. This also means that her constituents are effectively stripped of their representation in the state house, because their duly elected representative cannot vote on bills.
That is not allowed. Indeed, The Supreme Court’s decision in Bond v. Floyd (1966), which involved the Georgia House of Representatives’ decision not to seat a duly elected lawmaker — ostensibly because he spoke out against the Vietnam War — is almost directly on point. Bond held that the First Amendment “requires that legislators be given the widest latitude to express their views on issues of policy.” The same rule should apply in Libby v. Fecteau, which is now pending before the Supreme Court.
One of the most well-established principles under the First Amendment is that offensive speech must be protected. Because the First Amendment protects against government censorship, virtually all free speech cases involve speech that is sufficiently offensive to government officials that they decided to sanction it. If the freedom of speech did not apply to speech that many Americans find repulsive, it would be worthless.
Even if the First Amendment does not apply to speech that is somewhat menacing to a minor — itself a dubious proposition — stripping Libby of her voting rights does more than simply strike at her right to free speech. It punishes her constituents by stripping them of their right to representation. Indeed, the Maine legislature’s actions would be less offensive to the Constitution if it had simply expelled Libby from the state house altogether. At least in that circumstance, the people of her district could elect someone else to cast votes on their behalf.
Libby’s lawyers asked the Supreme Court to weigh in on this case by Tuesday, when the Maine House convenes for a floor session. That won’t happen, as Justice Ketanji Brown Jackson, who oversees emergency requests to her Court that arise out of Maine’s federal courts, set a May 8 deadline for the state legislature to respond to Libby’s arguments.
There are legitimate reasons why the Court might not weigh in on the Libby case anytime soon. The case arises on the Court’s “shadow docket,” a mix of emergency motions and other expedited matters that the justices used to be very cautious about deciding prematurely before President Donald Trump’s first term. Some of the justices remain concerned about overuse of the shadow docket, and may wish to give an appeals court more time to consider the case.
But some court needs to intervene. Regardless of what anyone thinks about Libby’s attack on a high school student, allowing lawmakers to strip their colleagues of their ability to vote on legislation would set an alarming precedent that could easily be used by authoritarian legislators to stifle dissent.
What is the specific legal question in the Libby case?
For now, no court has weighed in on whether it is constitutional to strip Libby of her ability to vote or to speak on the House floor. A federal district judge denied relief to Libby on the grounds that the legislature’s decision to sanction her is protected by “legislative immunity.” An appeals court issued a brief decision denying Libby an emergency order immediately reinstating her voting rights, but the case remains pending before that court.
The principle of legislative immunity is well-established. As the Court said in Powell v. McCormack (1969), it is intended to ensure that “legislators are free to represent the interests of their constituents without fear that they will be later called to task in the courts for that representation.”
Imagine, for example, that the Maine legislature enacts a tax on the sale of beets. If this tax is illegal, a beetroot farmer might file a lawsuit against the state’s taxing agency seeking to be reimbursed for paying it. But they cannot sue the state lawmakers who voted for the tax. Those lawmakers are shielded from liability, and the farmer’s suit lies against the state officials who actually collect the tax.
While this framework protects lawmakers from being hauled off into court, it is not intended to render illegal legislation — or, in the Libby case, an illegal sanction imposed on a lawmaker — entirely immune from judicial review.
In the Powell case, for example, the Supreme Court ruled in favor of a duly-elected member of Congress that the US House refused to seat, in large part because of corruption allegations against that lawmaker. Though legislative immunity might have prevented that unseated lawmaker, New York’s Rep. Adam Clayton Powell, from suing the actual members of Congress who voted to unseat him, the Court allowed his suit to proceed against the House Sergeant at Arms — who was responsible for paying House members.
“Although an action against a Congressman may be barred” by the Constitution, Powell concluded, “legislative employees who participated in the unconstitutional activity are responsible for their acts.”
A similar rule should apply in Libby. Though Libby’s suit against Fecteau should be precluded by legislative immunity, she also sued Robert Hunt, the clerk of the Maine House who is responsible for tallying votes cast by representatives. She seeks an injunction requiring Hunt to count her votes.
The district judge, for what it is worth, claimed that Bond and Powell do not apply to the Libby case because, in both of those cases, a lawmaker was removed from a legislature entirely, while Libby was merely sanctioned until she apologizes. But this distinction should not matter. Powell established that “legislative employees” like Hunt can be sued for “unconstitutional activity” generally, regardless of whether that activity results in someone being removed from their job as a lawmaker.
Moreover, it’s not hard to imagine how lawmakers could abuse the power to strip away a colleague’s voting rights. The Bond case, for example, involved state Rep. Julian Bond, a prominent Black civil rights activist who was elected to the Georgia House shortly before the Voting Rights Act of 1965 enfranchised Black voters in the Jim Crow South. Though his colleagues claimed that they refused to seat him because of his views on the Vietnam War, Bond’s race almost certainly drove many of his unreconstructed colleagues to lock him out of office.
The Maine House’s decision to strip Libby of her voting rights is also evocative of a more recent incident, where Tennessee’s Republican-controlled House voted to expel two Black Democratic lawmakers under circumstances which strongly suggested that their race motivated this expulsion. (The legislature backed down after both lawmakers were reelected.)
Libby, who was sanctioned for bullying a teenager, hardly occupies the same moral high ground as Julian Bond. But the same constitutional principles that applied in Bond should apply in Libby. Otherwise, any lawmaker who is in the minority within their legislative body could be targeted by colleagues who want to silence them and to disenfranchise their constituents.