UNITED STATES COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT
No. 95-1090
NATIONAL ASSOCIATION OF SOCIAL WORKERS, ET AL.,
Plaintiffs, Appellees,
v.
JOHN B. HARWOOD, ET AL.,
Defendants, Appellants.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Raymond J. Pettine, Senior U.S. District Judge]
Before
Selya, Cyr and Lynch,
Circuit Judges.
John A. MacFadyen for appellants.
Jeffrey B. Pine, Attorney General, and Alan M. Shoer,
Special Assistant Attorney General, on brief for State of Rhode
Island, amicus curiae.
Amy R. Tabor, with whom Hardy Wood Tabor & Chudacoff was on
brief, for appellees.
November 13, 1995
SELYA, Circuit Judge. Over a century ago, Charles
SELYA, Circuit Judge.
Dudley Warner, a nineteenth-century Connecticut journalist,
earned a sliver of immortality by coining the phrase "politics
makes strange bedfellows." This appeal, which forges an
improbable alliance among such disparate groups as the National
Association of Social Workers, the Rhode Island State Rifle and
Revolver Association, the Rhode Island Affiliate of the American
Civil Liberties Union, the Rhode Island State Right to Life
Committee, Inc., the Coalition to Preserve Choice, the National
Education Association, and Ocean State Action, proves that the
aphorism still has force.
Here, the improbable allies (all private, non-profit
organizations) banded together with others to bring an action in
Rhode Island's federal district court against John B. Harwood,
Speaker of the Rhode Island House of Representatives (the House)
and Guido Petteruti, the House's head doorkeeper.1 The
plaintiffs challenged the constitutionality of House Rule 45 a
rule that purports to ban both lobbyists and lobbying from the
floor of the House while the House is in session on its face
and as applied. The district court found for most of the
plaintiffs and ordered the House to desist from continuing its
prevailing practices with regard to the interpretation and
1Other plaintiffs in the underlying action included several
individuals registered as lobbyists for non-profit organizations
(Kate Coyne-McCoy, Harvey Press, Scott Nova, Barbara Baldwin,
Susan Closter-Godoy, Steven Brown, Barbara Colt, Donn Dibiasio,
Anna Sullivan, and Marti Rosenberg), and three elected members of
the House (Edith Ajello, Barbara Burlingame, and Francis
Gaschen).
2
enforcement of Rule 45. See National Ass'n of Social Workers v.
Harwood, 874 F. Supp. 530 (D.R.I. 1995) (Social Workers).2
Given the benefit of briefing and argument on the doctrine of
legislative immunity a benefit denied to the distinguished
district judge, since the defendants inexplicably neglected to
raise the issue in the lower court we reverse.
I. BACKGROUND
I. BACKGROUND
We recount the facts "in the light most hospitable to
the verdict-winner, consistent with record support." Cumpiano v.
Banco Santander P.R., 902 F.2d 148, 151 (1st Cir. 1990).
In January 1993, the House, under fresh leadership that
had pledged procedural reform, adopted several new rules. Among
them was Rule 45 (the full text of which is reproduced in the
appendix). On its face, Rule 45 banishes all lobbyists from the
floor of the House (and the House lounge) while the House is in
session. Nonetheless, the rule permits members of the public to
be on the House floor while the House is in session, provided
that "they remain seated along the sides of the chamber, refrain
from conversation, and maintain the decorum of the House," and
provided further that they do not "directly or indirectly engage
in the practice of lobbying." Rule 45(b).
2The district court nonetheless rebuffed the legislator-
plaintiffs, who claimed that Rule 45 violated their First
Amendment right to receive political information. The court
ruled that, even if the legislators had been denied some level of
access to lobbyists, the denial did not "rise[] to the level of a
constitutional deprivation." Social Workers, 874 F. Supp. at
542. The legislator-plaintiffs have not appealed and,
accordingly, we confine our discussion to the claims brought by
the other plaintiffs.
3
Although Rule 45 does not define the term "lobbyist,"
it incorporates the statutory definition of "lobbying" contained
in the Rhode Island Lobbying Act, R.I. Gen. Laws 22-10-1 to
22-10-12 (the Act). The Act defines "lobbying" as "acting
directly or soliciting others to act for the purpose of
promoting, opposing, amending, or influencing in any manner the
passage by the general assembly of any legislation or the action
on that legislation by the governor." Id. 22-10-2. The Act
requires lobbyists for private organizations and interests to
register with the Secretary of State, see id. 22-10-5 & 22-10-
6, and to wear identifying badges, see id. 22-10-8. Government
officials who lobby are given considerably more leeway. The Act
grants safe passage to many elected officials, see id. 22-10-
3(1), and other public employees, while required to register, are
otherwise exempt from the Act's provisions. See id. 22-10-4.1.
Neither elected officials nor other public employees are required
to wear identification badges.
The district court found that, prior to the adoption of
Rule 45, the House provided two galleries overlooking the chamber
which were accessible to all members of the public, lobbyists
included. In addition, "representatives of both private and
governmental organizations were allowed to be present on the
floor of the House." Social Workers, 874 F. Supp. at 535. These
lobbyists typically occupied seats on the periphery, in an area
ranged alongside the two outermost aisles of the House floor.
They communicated with legislators in a variety of ways, such as
4
by whispered conversations on the perimeter of the House floor,
written notes, physical gestures, and other assorted signals.
See id. This buzznacking took place even while the members were
debating floor amendments.
After the adoption of Rule 45, access to the overhead
galleries remained unchanged. But from that point forward, the
House excluded private lobbyists (easily recognized by their
obligatory identification badges) from the House floor while the
House was in session. The district court found that, in
contrast, "agents or employees of governmental bodies [were]
allowed to be present on the floor of the House while it [was] in
session, as [were] members of the general public." Id.
Moreover, the "defendants permitted agents of governmental
organizations to be present, to speak, to respond to questions,
to provide information, and to confer with legislators on the
House floor during House sessions on frequent occasions,"
notwithstanding the apparently unconditional text of Rule 45.
Id. at 537.
The plaintiffs struck back on April 27, 1993. On that
date, they filed a civil action under 42 U.S.C. 1983 (1988)
against Messrs. Harwood and Petteruti (as the individuals
purportedly responsible for enforcing the House's rules) charging
that Rule 45, on its face and as applied, violated the
plaintiffs' rights under the First and Fourteenth Amendments.
The defendants denied the allegations. Following a four-day
bench trial, the judge found for the plaintiffs. See National
5
Ass'n of Social Workers v. Harwood, 860 F. Supp. 943 (D.R.I.
1994). The defendants then moved to alter the judgment. While
that motion was under advisement, we decided AIDS Action Comm. v.
Massachusetts Bay Transp. Auth., 42 F.3d 1 (1st Cir. 1994). The
judge then issued the opinion that is now before us, 874 F. Supp.
530, modifying the original rescript in certain particulars.
In substance, the court found that the presence of the
general public on the perimeter of the House floor a presence
expressly permitted by Rule 45 constituted "communicative and
expressive activity," id. at 540; that, due to the communicative
possibilities inherent in physical presence, the public's access
to the perimeter of the House floor rendered the floor itself a
limited-purpose public forum, see id.; and that, therefore, both
Rule 45's exclusion of lobbyists and its proscription against
lobbying on the House floor constituted impermissible time,
place, and manner restrictions on expressive activity, see id. at
540-41.3 On this basis, the court held that Rule 45, on its
3In the court's view, the rule did not "leave open ample
alternative means of communication for the lobbyists," Social
Workers, 874 F. Supp. at 541, because "representatives elected to
the Rhode Island House of Representatives are part time
legislators . . . [who] lack legislative office quarters in the
State House or elsewhere, [and who] lack legislative staffs, and
[who] generally have full time jobs in addition to their
legislative duties." Id. This meant, the court reasoned, that
exclusion of the lobbyists denied them the opportunity to
communicate with hard-to-find legislators by way of silent
presence. See id.
In condemning the ban on lobbying on the House floor during
House sessions, the court took a similar tack. It found that,
"with regard to floor amendments, which are often proposed and
voted on in the same House proceeding, the only timely and useful
communication that can take place is that which occurs on the
floor of the House, during the debate on the amendment." Id.
6
face, violated the plaintiffs' First Amendment rights. See id.
at 541.
The court also found that the House haphazardly
enforced Rule 45, allowing lobbying by government officials while
prohibiting others from lobbying. See id. at 535-37. Predicated
on this finding, the court concluded that "the application of
Rule 45 amounts to a content based restriction on speech." Id.
at 541. Because the court could discern no "compelling
government interest" that justified the exclusion of private
lobbying while sparing governmental lobbying, it held the
interpretation and enforcement of Rule 45 invalid under the First
Amendment. Id. at 541-42.
In constructing a remedy, the judge, presaging an issue
not yet raised by the parties, voiced concerns about judicial
interference in legislative affairs. See id. at 542. He
therefore declined the plaintiffs' invitation to "require
defendants to return to the pre-1993 practice of admitting all
lobbyists, public and private, onto the floor of the House on a
first-come, first-served basis." Id. Instead, he opted to
declare "the current interpretation and enforcement of Rule 45
unconstitutional," and to order the House to refrain from
"continuing its current practices with regard to this issue."
Id. at 543.4 The House leadership responded on two levels: the
4For reasons that are not readily apparent to us, the
plaintiffs never sued the House as a body and, therefore, the
district court plainly lacked jurisdiction to enjoin the House.
The plaintiffs now concede that, insofar as the lower court
purported to do so, its order cannot stand. Withal, the
7
House itself passed a new rule barring all persons except
legislators and legislative aides from the House floor, and the
named defendants launched this appeal.
II. PROCEDURAL DEFAULT
II. PROCEDURAL DEFAULT
On appeal, the defendants, having engaged new counsel,
advance a point that, for some unfathomable reason, they
neglected to raise below: the claim that, with regard to the
defendants' actions anent Rule 45, they are safeguarded from
judicial interference under the federal common law doctrine of
absolute legislative immunity. The State of Rhode Island,
through its Attorney General, as amicus curiae, lends its
support.
It is very late in the day to bring a new argument to
the fore. Ordinarily, an appellant who has not proffered a
particular claim or defense in the district court "may not unveil
it in the court of appeals." United States v. Slade, 980 F.2d
27, 30 (1st Cir. 1992). This rule is deeply embedded in our
jurisprudence, see, e.g., Teamsters, Chauffeurs, Warehousemen and
Helpers Union, Local No. 59 v. Superline Transp. Co., 953 F.2d
17, 21 (1st Cir. 1992) ("If any principle is settled in this
circuit, it is that, absent the most extraordinary circumstances,
legal theories not raised squarely in the lower court cannot be
broached for the first time on appeal."), and we have invoked it
plaintiffs argue that the court's underlying ruling that Rule
45 is unconstitutional may endure, as the court had
jurisdiction over the individuals charged with the rule's
enforcement. For reasons which more clearly appear infra, we
need not unsnarl this tangle.
8
with a near-religious fervor, see, e.g., McCoy v. Massachusetts
Inst. of Technology, 950 F.2d 13, 22 (1st Cir. 1991) (collecting
cases), cert. denied, 504 U.S. 910 (1992). Nor can this variant
of the raise-or-waive principle be dismissed as a pettifogging
technicality or a trap for the indolent; the rule is founded upon
important considerations of fairness, judicial economy, and
practical wisdom. See, e.g., Sandstrom v. Chemlawn Corp., 904
F.2d 83, 87 (1st Cir. 1990); United States v. Miller, 636 F.2d
850, 853 (1st Cir. 1980). Thus, parties must speak clearly in
the trial court, on pain that, if they forget their lines, they
will likely be bound forever to hold their peace. This is as it
should be: the rule fosters worthwhile systemic ends and courts
will be the losers if they permit it to be too easily evaded.
But foolish consistency is reputedly the hobgoblin of
little minds, see Ralph Waldo Emerson, "Self Reliance," in
Essays: First Series (1841), and in the last analysis, this
articulation of the raise-or-waive principle, though important,
is a matter of discretion. See United States v. La Guardia, 902
F.2d 1010, 1013 (1st Cir. 1990) (holding that "an appellate court
has discretion, in an exceptional case, to reach virgin issues");
accord Singleton v. Wulff, 428 U.S. 106, 121 (1976); United
States v. Mercedes-Amparo, 980 F.2d 17, 18-19 (1st Cir. 1992);
United States v. Krynicki, 689 F.2d 289, 291-92 (1st Cir. 1982).
Thus, this rule (like most rules) admits of an occasional
exception. "Occasional" is the key word. Since exceptions must
be few and far between, an appellate court's discretion should
9
not be affirmatively exercised unless the equities heavily
preponderate in favor of such a step.
In the La Guardia and Krynicki opinions, we set forth
guidelines that suggest when it may be appropriate to invoke the
exception, and we need not rehearse the litany. Instead, we
explain why those criteria are satisfied here, and, in the
process, explicate the criteria themselves.
First, this is not a case in which, by neglecting to
raise an issue in a timely manner, a litigant has deprived the
court of appeals of useful factfinding. The court below made a
number of findings as to the appellants' conduct in interpreting
and enforcing Rule 45, and addressing the omitted issue requires
only that we determine whether the described conduct, giving full
deference to these factual findings, falls within the established
boundaries of legislative immunity. Thus, it can fairly be said
that the omitted issue is purely legal in nature, and lends
itself to satisfactory resolution on the existing record without
further development of the facts. These attributes ease the way
for invoking the exception. See La Guardia, 902 F.2d at 1013;
Krynicki, 689 F.2d at 291-92.
Second, appellants' belated proffer "raises an issue of
constitutional magnitude," a factor that favors review
notwithstanding the procedural default. La Guardia, 902 F.2d at
1013. Third, the omitted argument is "highly persuasive,"
Krynicki, 689 F.2d at 292, a circumstance that "often inclines a
court to entertain a pivotal argument for the first time on
10
appeal," La Guardia, 902 F.2d at 1013, particularly when
declining to reach the omitted argument threatens "a miscarriage
of justice," Krynicki, 689 F.2d at 292.5 Fourth, we see no
special prejudice or inequity to the plaintiffs. The omitted
defense is law-based, not fact-based. In addition, the parties
have joined issue; the claim of legislative immunity was made in
full in the appellants' opening brief in this court, the
plaintiffs responded to it in extenso, and both sides addressed
the point during oral argument. The absence of unfairness has a
definite bearing on a decision to overlook this type of
procedural default. See United States v. Doe, 878 F.2d 1546,
1554 (1st Cir. 1989); cf. Singleton, 428 U.S. at 120 (discussing
importance, in determining whether to reach the merits of an
omitted issue, of ensuring that the opposing party "ha[s] the
opportunity to present whatever legal arguments he may have" to
the court of appeals). Fifth, the omission seems entirely
inadvertent rather than deliberate; although withholding the
argument had the regrettable effect of blindsiding the district
5In this context, "miscarriage of justice" means more than
the individualized harm that occurs whenever the failure
seasonably to raise a claim or defense alters the outcome of a
case. Rather, courts ordinarily will relax the raise-or-waive
principle on this basis only if a failure to do so threatens the
frustration of some broadly important right. See Schlesinger v.
Councilman, 420 U.S. 738, 743 (1975) (holding that, when
"jurisdictional and equity issues . . . [are] sufficiently
important," courts may consider issues on appeal that were not
raised below); Krynicki, 689 F.2d at 292 (explaining that the
interest at stake must be "legitimate and significant"). For
this reason, courts often are more prone to make the infrequent
exception in cases that involve a discernible public interest,
and less prone to do so in disputes between private parties.
11
judge and needlessly prolonging the litigation, it yielded no
tactical advantage to the defendants.
Sixth and perhaps most salient the omitted issue
implicates matters of great public moment, and touches upon
policies as basic as federalism, comity, and respect for the
independence of democratic institutions. Courts must be
sensitive to such concerns. See Stone v. City and County of San
Francisco, 968 F.2d 850, 855 (9th Cir. 1992) (explaining the
court's election to address a matter first raised on appeal
because "[i]ssues touching on federalism and comity may be
considered sua sponte"), cert. denied, 113 S. Ct. 1050 (1993).
We believe that this sensitivity is appropriately expressed by a
frank recognition that, when institutional interests are at
stake, the case for the favorable exercise of a court's
discretion is strengthened, and waiver rules ought not to be
applied inflexibly.6 See, e.g., Hoover v. Wagner, 47 F.3d 845
(7th Cir. 1995) (suggesting that "when matters of comity are
involved, the ordinary doctrines of waiver give way"); Jusino v.
6Our belief that the defendants should not be strictly held
to a waiver of their absolute legislative immunity in this case
is fortified by our recognition that a primary purpose of the
immunity is to prevent courts from intruding into precincts that
are constitutionally reserved to the legislative branch.
Overlooking a waiver in order to further this policy of non-
interference is analogous to our settled rule that, because
federal courts are courts of limited jurisdiction, the absence of
federal subject matter jurisdiction can be raised on appeal even
if the issue was not raised below. See, e.g., American
Policyholders Ins. Co. v. Nyacol Prods., Inc., 989 F.2d 1256,
1258 (1st Cir. 1993), cert. denied, 114 S. Ct. 682 (1994). In
both situations, looking past the waiver has the salutary effect
of ensuring that federal courts do not poach on preserves that
the Constitution reserves to other forms of oversight.
12
Zayas, 875 F.2d 986, 993 (1st Cir. 1989) (discussing court's
reluctance to apply waiver rules concerning "a line of defense
that calls into play the Commonwealth's Eleventh Amendment
immunity"); cf. Granberry v. Greer, 481 U.S. 129, 134 (1987)
(explaining that, when a state fails to raise a nonexhaustion
claim in a federal habeas proceeding, the federal tribunal
nonetheless should consider "whether the interests of comity and
federalism will be better served . . . by requiring
[exhaustion]").
Here, an important issue of public concern confronts
us. It is presented belatedly, but in a posture that permits its
proper resolution on the existing record and works no unfair
prejudice to the opposing parties. Failure to address the issue
may well result in an unwarranted intrusion by a federal court
into the internal operations of a state legislature. Under these
exceptional circumstances, we follow the course of perceived duty
and proceed, in the exercise of our discretion, to weigh the
legislative immunity argument.7 See La Guardia, 902 F.2d at
7The dissent's principal response to this reason seems to be
that overlooking the waiver "eliminates any incentive" for
legislators to raise the immunity defense in a timely manner.
Post at 39-40. This reasoning strikes us as triply flawed. In
the first place, that argument can be used with equal force as to
virtually all omitted defenses; its logical extension is that all
waivers should rigorously be enforced. That view has much to
commend it as a matter of case management, but, as La Guardia,
Krynicki, Mercedes-Amparo, Hoover, and Stone illustrate, it is
simply not the law.
In the second place, the argument underestimates the
capabilities of appellate courts. There is no hint of a
deliberate bypass in this case the belated tender of the
defense is the product of a change in counsel (coupled with the
appearance of Rhode Island's Attorney General as an amicus)
13
1013 ("Rules of practice and procedure are devised to promote the
ends of justice, not to defeat them.") (quoting Hormel v.
Helvering, 312 U.S. 552, 557 (1941)).
III. THE MERITS OF THE OMITTED DEFENSE
III. THE MERITS OF THE OMITTED DEFENSE
We bifurcate our analysis of the legislative immunity
defense, first discussing the general nature and scope of the
doctrine and then addressing the specific contours of the
appellants' claim.
A. Legislative Immunity: In General.
A. Legislative Immunity: In General.
The Speech or Debate Clause commands that "for any
Speech or Debate in either House, [Senators and Representatives]
shall not be questioned in any other place." U.S. Const. art. I,
6, cl. 1. The Clause is, by its terms, limited to members of
Congress. See Lake County Estates v. Tahoe Regional Planning
Agency, 440 U.S. 391, 404 (1979). Nevertheless, state
legislators and their surrogates enjoy a parallel immunity from
liability for their legislative acts.
While this immunity is derived from federal common law,
it is similar in scope and object to the immunity enjoyed by
federal legislators under the Speech or Debate Clause. When the
Justices initially recognized state legislative immunity as a
rather than a change in tactics or a reassessment of political
costs and, if sandbagging were to occur, we have confidence
that this court would see it for what is was, and decline to
exercise discretion in favor of the sandbagger.
Finally, if we assume that the dissent is correct and that
our ruling today may encourage legislator-litigants to withhold
immunity defenses for political reasons, that is still the lesser
evil, far preferable in our view to the unwarranted insertion of
the federal court's nose into the state legislature's tent.
14
component of federal common law, they turned to the Speech or
Debate Clause for guidance anent the contours of the doctrine.
See Tenney v. Brandhove, 341 U.S. 367, 376-79 (1951). Later, the
Court acknowledged that the immunities enjoyed by federal and
state legislators are essentially coterminous. See Supreme Court
of Va. v. Consumers Union of the U.S., Inc., 446 U.S. 719, 732-33
(1980). Hence, our exploration of the appellants' legislative
immunity claim begins with a distillation of principles extracted
from federal constitutional jurisprudence.
The Speech or Debate Clause has its roots in a similar
provision found in the English Bill of Rights of 1689.8 See
United States v. Johnson, 383 U.S. 169, 177-78 (1966); Tenney,
341 U.S. at 372. The Clause is modeled to ensure that the
Legislative Branch will be able to perform without undue
interference the whole of the legislative function ceded to it by
the Framers. See Eastland v. United States Serviceman's Fund,
421 U.S. 491, 502 (1975). To that end, the Clause operates to
shelter individual legislators from the distractions and
hindrance of civil litigation, see id. at 503, and "immunizes
[them] from suits for either prospective relief or damages,"
Consumers Union, 446 U.S. at 731.
While the core protection conferred by the Clause
concerns speech or debate by a member of Congress on the floor of
8The British version provides: "That the Freedom of Speech,
and Debates or Proceedings in Parliament, ought not to be
impeached or questioned in any Court or Place out of Parliament."
1 Wm. & Mary, Sess. 2, ch. II (1689).
15
either the Senate or the House, see Gravel v. United States, 408
U.S. 606, 625 (1972), the penumbra of the Clause sprawls more
broadly. This breadth of application, which draws its essence
from the Supreme Court's espousal of a "practical rather than a
strictly literal reading" of the Clause, Hutchinson v. Proxmire,
443 U.S. 111, 124 (1979), is made manifest in two ways. For one
thing, the Clause's prophylaxis extends to any act "generally
done in a session of the House by one of its members in relation
to the business before it." Kilbourn v. Thompson, 103 U.S. 168,
204 (1880). So read, the Clause protects not only speech and
debate per se, but also voting, see id., circulation of
information to other legislators, see Doe v. McMillan, 412 U.S.
306, 312 (1973), participation in the work of legislative
committees, see Gravel, 408 U.S. at 624; Tenney, 341 U.S. at 378-
79, and a host of kindred activities.
For another thing, because the applicability of the
Speech or Debate Clause necessarily focuses on particular acts or
functions, not on particular actors or functionaries, the
prophylaxis of the Clause also extends to legislative acts
performed by non-legislators. See Eastland, 421 U.S. at 507
(refusing to draw a distinction between the members of a
congressional subcommittee and the subcommittee's counsel when
the latter's actions were within the sphere of legitimate
legislative activity); Gravel, 408 U.S. at 618 (holding that "the
Speech or Debate Clause applies not only to a Member but also to
his aides insofar as the conduct of the latter would be a
16
protected legislative act if performed by the Member himself").
This extension evinces a recognition that, as a practical matter,
legislators cannot be expected to perform their constitutionally
allocated tasks without staff support.
This is not to say that the protections afforded by the
Speech or Debate Clause are limitless. They are not. See
Gravel, 408 U.S. at 625. Although the Court has read the Clause
generously, its protections must match its purposes. See
Eastland, 421 U.S. at 501-02. When all is said and done, the
absolute immunity conferred by the Clause is not afforded "simply
for the personal or private benefit of Members of Congress, but
to protect the integrity of the legislative process by insuring
the independence of individual legislators." United States v.
Brewster, 408 U.S. 501, 507 (1972).
The key limitation which applies both to members of
Congress and to congressional staffers is that the Clause
protects "only purely legislative activities." Id. at 512. If a
legislator (or his surrogate) undertakes actions that are only
"casually or incidentally related to legislative affairs," id. at
528, or which fall outside the "legitimate legislative sphere,"
Eastland, 421 U.S. at 503 (citation omitted), no immunity
inheres. By the same token, the mere fact that a legislator or a
legislative aide performs an act in his official capacity does
not automatically confer protection under the Speech or Debate
Clause. See Gravel, 408 U.S. at 625. For example, when a member
of Congress disseminates press releases to the public, the Clause
17
does not attach because such documents are "primarily means of
informing those outside the legislative forum." Hutchinson, 443
U.S. at 133. So, too, activities that are more political than
legislative in nature do not come within the legislative sphere,
and, hence, do not implicate the Speech or Debate Clause. See
Brewster, 408 U.S. at 512. These activities include such
familiar fare as "legitimate `errands' performed for
constituents, the making of appointments with Government
agencies, [and] assistance in securing Government contracts."
Id.
B. Legislative Immunity: In Particular.
B. Legislative Immunity: In Particular.
We now turn to the merits of appellants' assertion
that, under federal common law, the instant action founders on
the shoals of absolute legislative immunity. The plaintiffs
brought suit, as we have said, under 42 U.S.C. 1983. In
actions invoking federal civil rights statutes, federal courts
customarily "equate[] the legislative immunity to which state
legislators are entitled . . . to that accorded Congressmen under
the Constitution." Consumers Union, 446 U.S. at 733. Viewed
against this backdrop, it is unsurprising that the courts of
appeals historically have relied on Speech or Debate Clause
precedents to define the doctrinal boundaries of state
legislative immunity under the federal common law. See, e.g.,
Schlitz v. Commonwealth of Va., 854 F.2d 43, 45-46 (4th Cir.
1988); Agromayor v. Colberg, 738 F.2d 55, 58-59 (1st Cir.), cert.
denied, 469 U.S. 1037 (1984); Colon Berrios v. Hernandez Agosto,
18
716 F.2d 85, 89-90 (1st Cir. 1983) (per curiam); Green v. DeCamp,
612 F.2d 368, 371-72 (8th Cir. 1980). Thus, our mode of analysis
dovetails with the Speech or Debate Clause cases.
At the heart of our inquiry lies the question of
whether appellants' acts in respect to Rule 45 are "part and
parcel of the legislative process." Gravel, 408 U.S. at 626. If
so, appellants are protected. See id. To answer this question,
we must understand the nature of the acts.9 We can look at them
in one of two ways.
In a general sense, the defendants the Speaker and
the head doorkeeper did nothing more or less than to interpret
and enforce Rule 45. Where, as here, a legislative body adopts a
rule, not invidiously discriminatory on its face, see infra pp.
26-28, that bears upon its conduct of frankly legislative
business, we think that the doctrine of legislative immunity must
protect legislators and legislative aides who do no more than
carry out the will of the body by enforcing the rule as a part of
9In certain types of cases, the legislative immunity
analysis centers on function, attempting to ascertain whether an
action by one or more legislators is administrative or
legislative in nature. See, e.g., Negron-Gaztambide v.
Hernandez-Torres, 35 F.3d 25, 27-28 (1st Cir. 1994) (holding that
legislators' decision to discharge librarian was administrative
in nature, and did not give rise to legislative immunity). Here,
however, we are dealing with a procedural rule adopted by a house
of the legislature as a whole for the management of its own
business. Hence, we are not concerned with whether the adoption
of the rule comprises a legislative act that is transparently
clear but, rather, with whether that act is more than "casually
or incidentally related" to core legislative functions.
Brewster, 408 U.S. at 528.
19
their official duties.10 See Consumers Union of the U.S. v.
Periodical Correspondents' Ass'n, 515 F.2d 1341, 1348-50 (D.C.
Cir. 1975) (holding congressional employees' actions in enforcing
Congress's internal seating regulations immune under Speech or
Debate Clause), cert. denied, 423 U.S. 1051 (1976); see also
Davids v. Akers, 549 F.2d 120, 123 (9th Cir. 1977) (dismissing
action challenging internal rules for committee assignments
brought by members of the Arizona House of Representatives
against the Speaker); cf. R.I. Const. art. VI, 7 (expressly
authorizing the House to "determine its rules of proceeding").
The short of it is that the doctrine of legislative immunity,
like the Speech or Debate Clause, attaches when solons' actions
are "an integral part of the deliberative and communicative
processes by which Members participate in committee and House
proceedings with respect to the consideration and passage or
rejection of proposed legislation or with respect to other
matters [committed to their jurisdiction]." Gravel, 408 U.S. at
625.
In a more specific sense, it might be said that the
10We reject the plaintiffs' attempt to differentiate the
Speaker from the doorkeeper, based on the fact that the latter is
not a legislator. The case law teaches that, as long as an
aide's conduct would be covered by legislative immunity were the
same conduct performed by the legislator himself, the aide shares
the immunity. See Eastland, 421 U.S. at 507; Gravel, 408 U.S. at
616; Consumers Union of the U.S. v. Periodical Correspondents'
Ass'n, 515 F.2d 1341, 1348-50 (D.C. Cir. 1975), cert. denied, 123
U.S. 1051 (1976). Petteruti's actions in keeping the House floor
unsullied were performed by virtue of an express delegation of
authority to him as part of the House's staff support apparatus,
under the auspices of the Speaker and the legislative body as a
whole. No more is exigible.
20
district court granted relief because it found Rule 45 to be
fatally deficient in three particulars: (1) on its face, Rule 45
transgressed the First Amendment by banning lobbying on the floor
of the House while the House is in session; (2) on its face, Rule
45 transgressed the First Amendment by banishing all lobbyists
from the perimeter of the House; and (3) the appellants
interpreted, applied, and enforced Rule 45 to allow governmental
lobbyists onto the House floor while denying comparable access to
private lobbyists. Assuming for argument's sake that this
narrower perspective is relevant, the question of whether the
appellants are entitled to legislative immunity would be reduced
to a question of whether the acts which the district court found
problematic fell within or without "the legitimate legislative
sphere." Eastland, 421 U.S. at 503.
The first area of inquiry can celeritously be
dispatched. We think it is beyond serious dispute that enforcing
a duly enacted legislative rule which prohibits lobbying on the
House floor during House sessions is well within the legislative
sphere. Such a restriction necessarily affects the manner in
which the House conducts its most characteristic legislative
functions, e.g., debating and voting. A rule that colors the
very conditions under which legislators engage in formal debate
is indubitably part and parcel of the legislative process, and
the acts of House officials (whether or not elected members) in
enforcing it are therefore fully protected against judicial
interference by the doctrine of legislative immunity. See id.;
21
see also Doe, 412 U.S. at 312-13; Tenney, 341 U.S. at 378-79.
At first blush, the next area of inquiry whether the
exclusion of all lobbyists from the perimeter of the House is
within the legislative sphere appears more murky. Seating
arrangements for non-legislators arguably are less integral to
the legislative process than the regulation of lobbying during
House sessions. As the trial testimony in this case amply
demonstrates, however, when lobbyists are present on the House
floor (even on the perimeter), they often become embroiled in the
legislative process either through self-initiated or legislator-
initiated contacts. And, even if lobbyists are able to maintain
stoic silence on the perimeter, their mere presence affects the
legislative environment.11 We conclude, therefore, that
regulation of admission to the House floor comprises "an integral
part of the deliberative and communicative processes by which
Members participate in . . . House proceedings with respect to
the consideration and passage or rejection of proposed
legislation." Gravel, 408 U.S. at 625. Consequently, the
doctrine of legislative immunity pertains.
We are not alone in our view of a legislature's House
11The plaintiffs themselves have argued, in the context of
their First Amendment claim, that they should at least be given
the opportunity to sit silently on the perimeter of the House
floor so that they may communicate through their physical
presence. The district court accepted this argument, and made it
a cornerstone of the ensuing First Amendment analysis. See
Social Workers, 874 F. Supp. at 539-41. The importance that the
plaintiffs attach to admittance to the perimeter indicates their
own recognition that, by mere physical presence, they can
influence ongoing legislative business.
22
as its castle. In Periodical Correspondents', the court reached
a similar conclusion. There, the Periodical Correspondents'
Association, which issues credentials to the press galleries of
Congress, denied accreditation to a particular periodical,
Consumer Reports, on the ground that it had ties to an advocacy
organization. Consumers Union sued the sergeants-at-arms of the
House and Senate, among other defendants, alleging that the
exclusion violated the First Amendment. The court held that the
sergeants-at-arms were immune under the Speech or Debate Clause
because arrangements for seating the press in the House and
Senate galleries were "integral" to "the legislative machinery."
515 F.2d at 1350. In a later case, the court elaborated its
rationale, explaining that the seating "immediately concerned
House consideration of proposed legislation" because the
arrangements "were intended to shield members of Congress from
press members' use of their House access to lobby legislators."
Walker v. Jones, 733 F.2d 923, 930 (D.C. Cir.) (discussing
Periodical Correspondents'), cert. denied, 469 U.S. 1036 (1984).
Like the seating arrangements at issue in Periodical
Correspondents', the seating arrangements dictated by Rule 45
involve the "regulation of the very atmosphere in which lawmaking
deliberations occur." Walker, 733 F.2d at 930. Moreover, if
there is a distinction between Periodical Correspondents' and the
instant case, it does not advantage the present plaintiffs; the
Rhode Island House is seeking to regulate access to its own
floor, rather than to galleries located above the floor.
23
We come now to the third area of inquiry, involving the
significance, if any, of the plaintiffs' claim that the
appellants interpreted and enforced Rule 45 in a manner that
allowed lobbying on the House floor by governmental, but not
private, lobbyists. This as-applied exclusion of private
lobbyists, at its most primitive level, involves regulating the
legislative environment by controlling access to the seating on
the perimeter of the House floor. Because such regulation is
"done in a session of the House by one of its members in relation
to the business before it," Kilbourn, 103 U.S. at 204, it is
within the legislative sphere.
To be sure, both our dissenting colleague and the
plaintiffs protest that the House treats private lobbyists
differently (and less hospitably) than public lobbyists, and that
this differential treatment offends the First Amendment. These
charges lack sufficient force to strip away the shield of
absolute legislative immunity.
We believe that the body of our opinion adequately
rebuts the dissent's views, and we decline to repastinate well-
ploughed ground. We do add, however, our belief that the dissent
seriously misconstrues the Court's Speech or Debate Clause
jurisprudence beyond all recognition. To the extent that Powell
can be read to hold that legislative immunity does not extend to
legislative employees, the Court in later cases has routinely
confined it to its unique facts. See, e.g., Gravel, 408 U.S. at
621 (specifically identifying Kilbourn, Powell, and Dombrowski v.
24
Eastland, 387 U.S. 82 (1967), and stating that none "of these
cases adopted the simple proposition that immunity was
unavailable to congressional or committee employees because they
were not Representatives or Senators"). Rather, the case law
"reflect[s] a decidedly jaundiced view towards extending the
Clause so as to privilege illegal or unconstitutional conduct
beyond that essential to foreclose executive control of
legislative speech or debate and associated matters such as
voting and committee reports and proceedings." Id. We see no
reason why judicial control of legislative speech or debate is
any less pernicious than executive control. Moreover, the
decision not to extend legislative immunity to congressional
employees in cases such as Powell turned on whether "relief could
be afforded without proof of a legislative act or the motives or
purposes underlying such an act," thereby avoiding impermissible
encroachment on "legislative independence." Id. at 620. Under
that standard, judicial review of House Rule 45 as the tortured
course of the proceedings below graphically illustrates
unquestionably required a substantial judicial intrusion into the
legislative domain. Finally, we recognize, as the dissent points
out, that the Court has remarked an exception to legislative
immunity for the exercise by legislators of punitive enforcement
authority outside the ambit of purely legislative proceedings.
See Consumers Union, 446 U.S. at 736. But the Court has never
suggested, much less held, that the enforcement of a rule adopted
by an entire legislative body designed to govern the conduct of
25
legislative proceedings falls within that exception. If that
were the rule, legislative immunity would be little more than a
rumor, and the Speech or Debate Clause would be easily skirted.
Similarly, the plaintiffs' "as-applied" arguments are
unavailing. In Eastland v. United States Servicemen's Fund,
supra, the plaintiffs asseverated that "once it is alleged that
First Amendment rights may be infringed by congressional action
the Judiciary may intervene to protect [First Amendment] rights."
421 U.S. at 509. The Court flatly rejected this asseveration,
warning that the effort to carve out such an exception "ignores
the absolute nature of the speech or debate protection and [the]
cases which have broadly construed that protection." Id. at 509-
10. The Court added: "Where we are presented with an attempt to
interfere with an ongoing activity by Congress, and that activity
is found to be within the legitimate legislative sphere, [First
Amendment] balancing plays no part." Id. at 510 n.16. The Ninth
Circuit put matters even more bluntly, writing that "nothing in
the First or Fourteenth Amendments or in 42 U.S.C. 1983 . . .
can justify [an] attempt to inject the Federal Judiciary into the
internal procedures of a House of a state legislature." Davids,
549 F.2d at 123.
The plaintiffs' also assert that the differential
treatment of public and private lobbyists violates the Equal
Protection Clause. This assertion does not derail the engine of
legislative immunity. Activities that comprise part and parcel
of the legislative process are protected by legislative immunity;
26
that immunity is not forfeited simply because the activities, if
unprotected, might violate a plaintiff's constitutional rights.
See Doe, 412 U.S. at 312-13; see also Colon Berrios, 716 F.2d at
91. Thus, in Doe, the Supreme Court ruled that the Speech or
Debate Clause shields legislators' actions "within the
legislative sphere, even though [the] conduct, if performed in
other than legislative contexts, would in itself be
unconstitutional." 412 U.S. at 312-13 (internal citation and
quotation marks omitted).
For obvious reasons, the plaintiffs chafe at the broad
sweep of the doctrine of legislative immunity, and, in struggling
to make their point, they marshal a parade of horribles. To cite
a typical example, they raise the specter of a hypothetical
legislature that votes to allow access to its chambers to members
of only one race or to adherents of only one religion.
The plaintiffs have the right to march, but their
parade is on the wrong route. The Court has explicitly
recognized that there may be some conduct, even within the
legislative sphere, that is so flagrantly violative of
fundamental constitutional protections that traditional notions
of legislative immunity would not deter judicial intervention.
See, e.g., Kilbourn, 103 U.S. at 204 (leaving open the question
of whether "there may not be things done, in the one House or the
other, of an extraordinary character, for which the members who
take part in the act may be held legally responsible"); see also
Tenney, 341 U.S. at 379 (Black, J., concurring) (recognizing that
27
the Court's jurisprudence "indicates that there is a point at
which a legislator's conduct so far exceeds the bounds of
legislative power that he may be held personally liable in a suit
brought under the Civil Rights Act"). Whatever may be the outer
limits of the doctrine of legislative immunity, however, it is
clear that the instant case is not so extreme as to cross (or
even closely approach) the border.
Taking the district court's factual findings at face
value, Rule 45, as applied, may arguably be wrong as a matter of
policy and as a matter of constitutional law but it is not
invidiously discriminatory. To the contrary, the differentiation
between private and public lobbyists appears to be based on two
factors that bear some rational relationship to legitimate
legislative purposes. First, the House leadership explained
that, in its view, the exclusion of private lobbyists from the
floor was a useful tool to bolster public confidence in
legislative independence and integrity.12 Second, the
12In a debate over a motion to reconsider Rule 45, the
Majority Leader, Representative George Caruolo, stated:
This isn't trying to retard lobbyists from
pursuing their vocation . . . It's a rule
that says, quite simply, this is the people's
chamber, the public is invited. But the
business of the people should be conducted by
the people's representatives. It should not
be in any way affected by people who are
registered to advocate particular positions,
whether they are paid or unpaid . . . .
Later, Representative Caruolo explained why he thought
that governmental lobbyists on the floor of the House do not
trigger the same public perceptions as private lobbyists:
28
defendants consistently have taken the position that government
lobbyists act in effect as support staff for legislators by
giving them neutral statistical and factual information relevant
to pending legislation. These justifications for the continued
presence of government lobbyists, found by the district court to
be authentic (if asthenic), see Social Workers, 874 F. Supp. at
541-42, afford a sufficiently rational basis to persuade us that
this case does not give rise to the question reserved by the
Kilbourn Court.13
Thus, we conclude that, insofar as the appellants
enforced Rule 45's prohibitions against private lobbyists, but
spared governmental lobbyists from exclusion, they acted within
the legislative sphere and are protected from judicial
[A]ny general officer or any government
employee who is here, working in this
building [the State House] on government
policy they're paid by the government. We
are the government. That's the distinction .
. . Let's not have private groups out here
trying to manipulate this floor while we are
taking votes.
In the same vein, Edward Clement, the House's legislative
coordinator, testified that he did not consider government
lobbyists to be lobbyists per se, but, rather, "people called [to
the floor] by members of the House for informational purposes."
Speaker Harwood echoed the same themes, describing the principal
spokesman for the state Budget Office as "a dollars-and-cents
guy. . . . a resource factual guy," in contradistinction to "a
lobbying, influence guy."
13This conclusion is not undermined by the lower court's
determination that these reasons were insufficient to warrant an
infringement on the First Amendment rights of private lobbyists.
See Social Workers, 874 F. Supp. at 541-42. Such rigorous
testing, appropriate in the First Amendment context, is out of
place in the context of legislative immunity. See Eastland, 421
U.S. at 509 n.16.
29
interference by the doctrine of absolute legislative immunity.
IV. CONCLUSION
IV. CONCLUSION
We need go no further.14 In our republican system,
different institutions of government occupy different spheres.
Within its own domain, the legislative branch of a state
government is entitled to a reasonable measure of independence in
conducting its internal affairs. As a rule, a legislature's
regulation of the atmosphere in which it conducts its core
legislative activities debating, voting, passing legislation,
and the like is part and parcel of the legislative process,
and, hence, not subject to a judicial veto. See Eastland, 421
U.S. at 509. Because Rule 45, and the defendants' actions in
interpreting and enforcing it, fit within the sweep of this
generality, the doctrine of absolute legislative immunity
requires that the federal courts refuse to entertain the suit.
Reversed. No costs.
Reversed. No costs.
Appendix follows; Dissenting opinion follows appendix
Appendix follows; Dissenting opinion follows appendix
14We do not reach and, accordingly, express no opinion on,
the soundness of the district court's First Amendment analyses
and rulings.
30
APPENDIX
APPENDIX
Text of Rule 45
Text of Rule 45
SIXTHLY - OF ADMISSION TO THE FLOOR
45(a) The following persons shall be entitled
to admission to the floor of the House during
the session thereof: The Governor, the
Lieutenant Governor, the Secretary of State,
the Attorney General, the General Treasurer,
the state controller, and members of the
Senate, judges and ex-judges of the United
States court and of the state courts, ex-
governors, ex-Speakers of the House, ex-
members of the General Assembly,
representatives of the legislative council,
legislative staff, director of the department
of administration, the budget officer,
assistant in charge of law revision, and
clerks of the Senate and House committees,
superintendent of public buildings, state
librarian, and the authorized representatives
of the press, as provided in the rule next
following, and such other persons as shall be
admitted to the floor by the Speaker. At the
discretion of the Speaker, members of the
public may be admitted to the House floor,
provided, however, that all such persons may
not stay in the House chamber unless they
remain seated along the sides of the chamber,
refrain from conversation, and maintain the
decorum of the House. All persons who are
unable to access the House galleries by
reason of physical handicap shall be entitled
to admission to the House floor.
(b) Lobbyists including former state
legislators who are lobbyists shall not be
entitled to admission to the floor of the
House during the session thereof. No person
entitled to admission to the floor of the
House during the session thereof, shall
either directly or indirectly engage in the
practice of lobbying as defined in Rhode
Island General Laws (22-10-2).
(c) Admission to the House Lounge is limited
to House members and persons invited and
accompanied by a House member who will be
31
responsible for them while in the lounge.
Such persons when no longer accompanied by
the House member with whom they entered,
shall leave the lounge. No lobbyists shall
be admitted to the House lounge during the
House session.
32
LYNCH, Circuit Judge, dissenting. When the
LYNCH, Circuit Judge, dissenting.
government chooses to listen only to its own voice in the
political process by excluding the voices of private
citizens, core First Amendment values are violated. At the
heart of this case is not the ability of the Rhode Island
House to promulgate rules for the conduct of its own
business, but the defendants' actual practice, directly
contrary to the Rule adopted by the House, of excluding
speakers unless they represent the government and thus
express the government's own viewpoint. While, in my view,
the House could have legitimately closed the floor of its
Chamber to all who sought to influence its work, defendants
may not permit government lobbyists to lobby on the House
floor while prohibiting private citizens and private
lobbyists from doing the same. The First Amendment does not
permit the government to put its thumb on the scale in this
way and favor itself in the arena of political speech. With
respect, I dissent.
Unlike the majority, I would not take the
extraordinary step of affording defendants absolute
legislative immunity, thus preventing the court from reaching
the First Amendment issue. The majority does so in the name
of federalism and comity, important values to be sure. But
naming those values may obscure the issues involved here.
This case does not implicate traditional issues of
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33
"federalism" at all, such as the limits on enumerated
congressional powers, see United States v. Lopez, 115 S. Ct.
1624 (1995), or the relative allocation of legislative power
between state and federal governments, see U.S. Term Limits,
Inc. v. Thornton, 115 S. Ct. 1842 (1995). Rather, this case
raises thorny issues of the constitutional allocation of
powers between the people and those elected to represent
them, and of the appropriate role of federal courts in
resolving such issues.
Facts
Rule 45 on its face does not permit any lobbyists,
government or private, to be on the House floor and prohibits
lobbying on the floor by anyone, private citizen15 or
professional lobbyist, while the House is in session. It is
that Rule which reflects the decision of the House as to the
running of its affairs. Permitting government lobbyists to
lobby on the floor of the House violates the House Rule.
The defendants claimed that such were not their
practices. But the district court, after trial, found to the
contrary and the defendants have not appealed from that
factual determination. The record amply demonstrates that
government lobbyists were regularly plying their trade on the
15. Under the terms of Rule 45, certain government officials
including the Governor, the Secretary of State, and the
Attorney General have access to the floor. The Rule
nonetheless prohibits anyone from lobbying.
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34
floor after adoption of the House Rule which ostensibly kept
them out. And, as the district court found, defendants
"flagrantly permitted" such activities.
The Rhode Island House presents a factual setting
perhaps unique in this country. Unlike many legislative
bodies, including the United States Congress, most Rhode
Island legislators are part-time and have neither offices nor
staff. The House meets for six months or less in a year, and
then only for three or four afternoons and evenings a week.
Once the session starts, it rarely breaks until it is
concluded. Legislators typically arrive just in time for the
session and leave immediately on its conclusion. Legislators
have no desks other than their desks on the floor of the
Chamber. Often there is no other place but the floor for
direct communication with the legislators, apart from
disturbing legislators in their capacities as private
citizens where they live or work.
Amendments to bills are often introduced for the
first time on the floor. They are often unavailable to the
public before being introduced and are available only in the
House Chamber after being introduced. Frequently, especially
toward the close of the session, the House votes on such an
amendment on the same day, and sometimes within minutes, of
the amendment being introduced.
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35
Around the perimeter of the floor of the House
Chamber are approximately eighteen chairs. Some of those
chairs have been filled on a daily basis by government
lobbyists since Rule 45 was enacted. The remainder are
filled by members of the public. Private lobbyists are
relegated to balcony seating.
Government officials sitting in the perimeter seats
have and use a decided advantage in communicating with
legislators and in collecting and disseminating information.
Individual legislators frequently walk over to the perimeter
to speak with the government lobbyists. These lobbyists send
notes to legislators indicating that they would like to speak
and they get the attention of individual legislators by
signalling them. People seated along the perimeter of the
floor receive more information than others concerning floor
amendments, which are distributed to the legislators only
when they are introduced. Thus, government lobbyists who are
sitting on the floor can see copies of floor amendments and
have the opportunity to communicate their views, including
pertinent information, to the legislators. It is virtually
impossible for those who are not permitted onto the floor to
learn the exact language of an offered amendment because the
text of floor amendments is not distributed outside of the
Chamber.
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36
Government lobbyists have actively lobbied for
their positions both from the perimeter seats and from the
floor itself. They have done so on bills which government
officials have supported and which private groups have
opposed. Those bills often concerned matters of great public
debate. For example, the topic of public funding of abortion
was taken up by the legislature. Agents of the Governor's
office, which supported such funding, sat on the floor and
talked to legislators while the lobbyist from the Rhode
Island State Right to Life Committee, Inc., which opposed
such funding, was relegated to the balcony. Similarly, the
Attorney General of Rhode Island introduced a bill to
reinstate the death penalty and he and his staff were on the
floor during debates on the bill, speaking with legislators.
Private group lobbyists opposed to the bill, including those
from the Rhode Island Affiliate of the American Civil
Liberties Union, could only watch from the balcony and were
precluded from the floor and from lobbying.
The same duality characterized the influencing of
bills on welfare reform. Government lobbyists from the
Department of Human Services were present for floor debates
on an amendment which would restore a General Public
Assistance program cut from the Governor's budget. The
Department favored elimination of the program. Lobbyists
from the National Association of Social Workers (NASW), which
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37
opposed eliminating the program, were excluded. There was no
break in the session between the time the amendment was
introduced and it was voted upon. Similarly, in debate over
an amendment to an AFDC program, lobbyists for the Department
in the perimeter seats attempted to influence the vote, while
a NASW lobbyist in the balcony ineffectively tried to convey
the NASW's position by waving hands. Prison-related bills
received the same treatment. Department of Corrections
officials were on the floor with legislators during debate
while ACLU lobbyists who opposed the Department's position
watched ineffectively from the balcony. There were numerous
other instances where the Governor's Office, the State
Police, the Department of Economic Development, the Banking
and Insurance Department, the Fire Marshal, the General
Treasurer's Office and the Department of Business Regulation
lobbyists spoke directly with legislators on the floor
regarding pending legislation.16
Nor were the advantages given to government
lobbyists limited to lobbyists from state government
agencies. The lobbyist for the Mayor of Providence was on
the floor of the House every day, frequently conversing with
legislators. She spoke with legislators on issues as varied
16. The ability of government employees to sit in the few
perimeter seats may have been used to advance their personal
interests as well. For example, during debates on incentive
pay for court clerks, two court clerks sat in the aisle
seats.
-38-
38
as a proposed gun court, the Providence water supply, and
funding for the city.
Lobbying by government lobbyists at times took
place among the seats of the legislators, even with the
knowledge of the Speaker. For example, when the House was in
session, the Providence lobbyist was on a cellular telephone
and walked in between the rows of the legislators' seats,
passing the telephone to certain members of the House, who
listened and spoke into the telephone. The telephone was
eventually passed to the Speaker, who also listened, spoke
and chuckled. Only when a member of the House raised an
objection did the Providence lobbyist move to the outer
aisles. But she was not asked to leave the floor and was not
asked to refrain from speaking to the legislators.
Immunity
I respectfully disagree with the decision of my
very able colleagues to afford absolute legislative immunity
to both of the defendants. Not only was the defense waived,
but even if it had been properly raised, the doctrine of
legislative immunity does not, in my view, foreclose a
judicial determination of the constitutionality of the
defendants' practices. The challenged practices do not
constitute the kind of "purely legislative activities" that
have traditionally triggered the protections of the
legislative immunity bar. Raising that bar in this case is
-39-
39
not necessary to vindicate the vital interests that the
doctrine was intended to safeguard, and indeed undercuts
those interests.
This case does not present the kind of exceptional
circumstances that would even permit consideration of the
defendants' legislative immunity arguments, because those
arguments were not raised in the district court. Cf.
Eastland v. United States Servicemen's Fund, 421 U.S. 491,
510 n.17 (1975) ("[T]he Speech or Debate Clause has never
been read so broadly that legislators are 'absolved of the
responsibility of filing a motion to dismiss.'" (citation
omitted)); Powell v. McCormack, 395 U.S. 486, 505 n.25
(1969). Here, the immunity doctrine -- hardly an obscure
legal concept -- was never raised as a defense to liability,
even when the distinguished trial court was solicitous about
minimizing the intrusion of the litigation into the
functioning of the state legislature. Defendant Harwood is
himself an attorney and both defendants were ably represented
in the district court. I see no reason not to hold the
defendants to their waivers. See Singleton v. Wulff, 428
U.S. 106, 121 (1976) (reversing court of appeals in a civil
case for deciding issues not argued in the district court).
In reaching the immunity issue, the majority sets
up a virtually no-lose proposition for legislators.
Legislators are certainly cognizant of the public perception
-40-
40
that raising an immunity defense is tantamount to a claim of
being above the Constitution. Thus, raising a defense of
legislative immunity at the outset of litigation is not
without its political costs. The majority's approach, which
permits the defense to be raised after trial, virtually
eliminates any incentive to raise it sooner. If the trial
were to produce an unfavorable outcome, the legislator-
defendant could simply assert immunity on appeal, claiming
that the failure to raise the defense earlier had been
inadvertent. Because there rarely will be direct evidence to
counter such a claim of inadvertence, and because the defense
of absolute legislative immunity will always present a law-
based, potentially dispositive question of constitutional
magnitude, a court of appeals applying the majority's
approach would almost inevitably consider the defense, even
though raised for the first time on appeal.
Moreover, to the extent that one of the rationales
underlying legislative immunity is to prevent vexatious
litigation against legislators, that rationale is undermined
where (as here) the legislator-defendant goes through the
entire trial and raises the defense only on appeal. "The
purpose of the protection afforded legislators is not to
forestall judicial review of legislative action but to insure
that legislators are not distracted from or hindered in the
performance of their legislative tasks by being called into
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court to defend their actions." Powell, 395 U.S. at 505.
Denials of legislative immunity are immediately appealable
because the immunity is not simply a defense to liability but
is also an immunity from suit. Helstoski v. Meanor, 442 U.S.
500, 508 (1979). Appellate courts are unable to vindicate
that interest where defendants wait until after trial to
raise the immunity defense. See id. There thus may be a
greater systemic interest in ensuring that the interest is
raised early.
Much of what the immunity protects cannot be
remedied here. Because the defendants never asserted a
defense of immunity, the action was fully tried before the
question was ever put to the district court. Legislators
have already testified. Deciding the merits of the
constitutional question entails no additional burden or
inconvenience upon the defendants. The need to ignore the
defendants' waiver in order to reach the immunity issue is,
as a result, greatly reduced.17
17. Even if one could overlook defendants' waiver, we could
not reach the immunity issue absent a showing of plain error
by the district court. Cf. United States v. Olano, 113 S.
Ct. 1770, 1776-78 (1993); United States v. Saccoccia, 58 F.3d
754, 790 (1st Cir. 1995). Plain error analysis does apply in
the civil context. See, e.g., Consolo v. George, 58 F.3d
791, 793 (1st Cir. 1995) (jury instructions to which no
objection lodged subject only to plain error review); Lewis
v. Kendrick, 944 F.2d 949, 953 (1st Cir. 1991) (district
court's failure to grant qualified immunity reviewable only
for plain error where defense was not timely raised); Javelin
Investment, S.A. v. Municipality of Ponce, 645 F.2d 92, 94-95
(1st Cir. 1981) (same, for a sufficiency-of-evidence claim).
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Even overlooking the defendants' waiver, however, I
believe that their claim of absolute legislative immunity
fails. The Supreme Court's case law demonstrates that even
if a suit asserting individual rights could not be brought to
challenge a legislative act per se, it is not barred by
legislative immunity if it merely seeks prospective relief
against a legislative employee for his role in carrying out
or enforcing the directives of that same legislative act.
That is precisely what the plaintiffs seek here.
There is no immunity for practices that simply
relate to legislative activities. See Doe v. McMillan, 412
U.S. 306, 313 (1973) ("Our cases make perfectly apparent
. . . that everything a [legislator] may regularly do is not
a legislative act within the protection of the Speech or
Debate Clause."); United States v. Brewster, 408 U.S. 501,
515 (1972) ("In no case has this Court ever treated the
Clause as protecting all conduct relating to the legislative
process." (emphasis in original; footnote omitted)); Powell,
395 U.S. at 503 ("Legislative immunity does not, of course,
bar all judicial review of legislative acts."). Moreover,
"[t]hat [legislators] generally perform certain acts in their
Whatever difference of opinion the question of legislative
immunity might allow, the district court's "failure" to
afford such immunity to defendants sua sponte was not clearly
in error, and certainly did not produce a gross miscarriage
of justice or seriously affect the fairness, integrity or
public reputation of the judicial proceedings. See Olano,
113 S. Ct. at 1779. There was no plain error.
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official capacity as [legislators] does not necessarily make
all such acts legislative in nature." Gravel v. United
States, 408 U.S. 606, 625 (1972). Rather, as the majority
agrees, the doctrine of legislative immunity protects "only
purely legislative activities." Brewster, 408 U.S. at 512;
Chastain v. Sundquist, 833 F.2d 311, 314 (D.C. Cir. 1987)
(quoting Brewster), cert. denied, 487 U.S. 1240 (1988).
The basic protection of the doctrine of legislative
immunity attaches to actual "speech or debate" by
legislators. Gravel, 408 U.S. at 625. The Supreme Court has
made clear that
[i]nsofar as [legislative immunity] is
construed to reach other matters, they
must be an integral part of the
deliberative and communicative processes
by which [legislators] participate in
committee and House proceedings with
respect to the consideration and passage
or rejection of proposed legislation or
with respect to other matters [within the
legislature's constitutional
jurisdiction].
Hutchinson v. Proxmire, 443 U.S. 111, 126 (1979) (emphases in
original) (quoting Gravel, 408 U.S. at 625). The majority
does not dispute this definition of the scope of legislative
immunity.
It is important to recognize that the plaintiffs
here seek only to enjoin Rule 45's enforcement. In my view,
legislative immunity does not reach enforcement of the House
Rule because such enforcement is not "an integral part of the
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deliberative and communicative processes" of the state
legislature.
Of course, the regulation of the admission of the
public to the House's floor has an important impact on the
legislative process -- that is what this lawsuit is about.
But it belies common usage, I believe, to say that the
defendants' practices relating to the admission or exclusion
of classes of persons from the House floor constitute "an
integral part of the deliberative and communicative
processes" of the legislature. Certainly, such practices are
not part and parcel of the legislative process in the same
fashion as are the kinds of legislative acts to which the
Supreme Court has previously extended legislative immunity:
e.g., voting for a resolution, Kilbourn v. Thompson, 103 U.S.
168, 204 (1881), making a speech on the floor, United States
v. Johnson, 383 U.S. 169, 180 (1966), circulating documents
to other legislators, McMillan, 412 U.S. at 312, or the
gathering of information for a committee hearing, Dombrowski
v. Eastland, 387 U.S. 82, 84 (1967) (per curiam).18 See
18. An action challenging any of these immunized activities
would have required proof, as this case does not, of the
substance of a legislator's act -- e.g., how the legislator
voted, or the content of a speech or the content of
communications to other legislators. See Gravel, 408 U.S. at
618-21 (drawing this distinction); see also Brewster, 408
U.S. at 526 (holding that act of bribery was not immune from
prosecution if government did not need to prove "how
[defendant] spoke, how he debated, how he voted, or anything
he did in the chamber or in committee").
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Brewster, 408 U.S. at 516 ("In every case thus far before
this Court, the Speech or Debate Clause has been limited to
an act which was clearly a part of the legislative process."
(emphasis added)).
It is not enough, as the majority suggests, that
the practice challenged here "affects" the way the
legislature conducts its affairs or "colors the very
conditions under which legislators" do their work. In
Hutchinson v. Proxmire, the Supreme Court, in refusing to
extend legislative immunity to certain statements made by a
senator in a press release, acknowledged that a senator's
ability to make such statements was arguably "essential to
the functioning of the Senate" and conceded that such
statements affected the legislative environment. 443 U.S. at
130, 131 ("We may assume that a Member's published statements
exert some influence on other votes in the Congress and
therefore have a relationship to the legislative and
deliberative process."). Yet, the Court concluded that no
legislative immunity attached to such statements.19 In
doing so, it observed that it had, in the past, "carefully
distinguished between what is only 'related to the due
19. Similarly, in Bond v. Floyd, 385 U.S. 116 (1966), the
Supreme Court allowed a suit to go forward challenging on
First Amendment grounds the constitutionality of certain
legislative resolutions preventing the seating of Julian Bond
in the Georgia legislature that had been passed in response
to political statements by Bond that had apparently
displeased his fellow legislators.
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functioning of the legislative process,' and what constitutes
the legislative process entitled to immunity under the
[Speech or Debate] Clause." Id. at 131 (emphases added;
citation omitted). Here, the defendants' challenged
practices, while perhaps "related to the due functioning of
the legislative process," simply do not "constitute[] the
legislative process" in the sense necessary to trigger
absolute legislative immunity. Cf. United States v. McDade,
28 F.3d 283, 299 (3d Cir. 1994) (declining to extend
legislative immunity for acts which, "although [they
comprised] a necessary precondition for the performance of
[legislative] acts," could not be said to be "an integral
part of Congress's deliberative and communicative
processes"), cert. denied, 115 S. Ct. 1312 (1995).
That the defendants' challenged practices are not
"legislative" in the sense necessary to trigger immunity and
that the plaintiffs' claim for injunctive relief is not
barred -- most clearly as it names the House doorkeeper -- is
established by a venerable line of Supreme Court authority.
In Kilbourn v. Thompson, 103 U.S. 168 (1881), the Court found
that members of the U.S. House of Representatives were
entitled to legislative immunity in a lawsuit arising from an
unconstitutional House resolution that had authorized the
arrest of the plaintiff. However, the Court permitted the
suit to go forward against the House's Sergeant at Arms, who
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had merely executed the unconstitutional arrest warrant. See
id. at 202. As the Supreme Court later summarized the
holding of Kilbourn: "That the House could with impunity
order an unconstitutional arrest afforded no protection for
those who made the arrest." Gravel, 408 U.S. at 618. The
unconstitutional "resolution was subject to judicial review,"
the Court explained, "insofar as its execution impinged on a
citizen's rights." Id.
Some ninety years after Kilbourn, in Powell v.
McCormack, the Court reaffirmed the principle that a suit for
injunctive relief brought against a legislative employee in
an enforcement-type capacity is not barred by legislative
immunity. 395 U.S. at 504-05. There, the Court held that
the defendant congressmen were entitled to legislative
immunity for their unconstitutional refusal to seat Adam
Clayton Powell as a Member of the U.S. House of
Representatives. See id. at 506. Applying the teaching of
Kilbourn, the Court went on to hold that the doctrine of
legislative immunity did not bar a judicial determination of
the merits of plaintiffs' constitutional claims, to the
extent that those claims were asserted against the
legislative employees who had merely been responsible for
enforcing the House's resolution, namely, the Sergeant at
Arms, the Clerk, and the Doorkeeper. See id. at 504-06. The
Court added that those officials could not assert legislative
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immunity on the ground that they had simply been "acting
pursuant to express orders of the House." Id. at 504.20
The Court in Powell thus "reasserted judicial power to
determine the validity of legislative actions impinging on
individual rights" in an action for prospective relief
brought against the legislative functionaries charged with
implementing the allegedly unconstitutional activity.
Gravel, 408 U.S. at 620.
The Court had applied similar reasoning in
Dombrowski v. Eastland, 387 U.S. 82 (1967) (per curiam),
decided shortly before Powell. In that case, which arose out
of an allegedly illegal raid, the Court sustained the defense
of legislative immunity with respect to the Chairman of a
subcommittee of the U.S. Senate Judiciary Committee for
issuing subpoenas to gather information, but declined to
extend immunity to the subcommittee's counsel, who had
allegedly participated in the execution of the illegal raid
to obtain the same information. See id. at 84. Dombrowski
thus supports the principle that a legislative employee sued
for his role in carrying out or executing an (immunized)
20. I respectfully disagree, therefore, with the majority's
suggestion that the legislative immunity doctrine protects
any legislative officials "who do no more than carry out the
will of the body by enforcing [Rule 45] as a part of their
official duties." To the extent that the decision in
Consumers Union of United States, Inc. v. Periodical
Correspondents' Ass'n, 515 F.2d 1341 (D.C. Cir. 1975), can be
read for a contrary proposition, I would decline to follow
it.
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legislative directive may be answerable to a private citizen
whose rights have been violated. See Gravel, 408 U.S. at
619-20.
More recently, in Supreme Court of Virginia v.
Consumers Union of the United States, Inc., 446 U.S. 719
(1980), the Supreme Court was presented with an action
brought under 42 U.S.C. 1983 asserting a First Amendment
challenge against certain attorney disciplinary rules that
had been enacted by the Virginia Supreme Court. The
plaintiffs sought declaratory and injunctive relief, naming
the Virginia Court and its Chief Justice (among others) as
defendants. The Supreme Court concluded that the Virginia
Court, in propounding the disciplinary rules, had acted in a
legislative (not judicial) capacity. The Virginia Court was
held entitled to absolute legislative immunity for acts
pertaining to the enactment of the disciplinary rules, e.g.,
refusing to amend the rules to comport with the Constitution.
See id. at 733-34. The Supreme Court further observed,
however, that the Virginia Court performed not only a
legislative role with respect to the disciplinary rules, but
also had enforcement authority. See id. at 734. The Court
concluded that to the extent that the plaintiffs' section
1983 action sought prospective relief against the Virginia
Court in its enforcement capacity, the doctrine of
legislative immunity did not bar the suit. Id. at 736 ("[W]e
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believe that the Virginia Court and its chief justice
properly were held liable in their enforcement capacities.
. . . For this reason the Virginia Court and its members were
proper defendants in a suit for declaratory and injunctive
relief, just as other enforcement officers and agencies
were.").
21. Moreover, the defendants' actions in restricting access
The Supreme Court's decisions in Kilbourn,
to the floor and lobbying can be viewed as administrative
(rather than legislative) in nature, and thus not entitled to
Dombrowski, Powell, and Supreme Court of Virginia establish
immunity on that additional ground. Because immunity is
defined by the functions it serves, Forrester v. White, 484
that the doctrine of legislative immunity does not bar a
U.S. 219, 227 (1988), even legislators themselves are not
immune for actions taken in an administrative capacity. In
judicial determination of a plaintiff's constitutional claim
Forrester, a state court judge enjoyed no judicial immunity
for the administrative acts of demoting and dismissing a
to the extent that the claim is one for injunctive relief and
probation officer. Even though the acts "may have been quite
important in providing the necessary conditions of a sound
is asserted against a defendant simply for his role in
adjudicative system," the decisions underlying the acts were
generic in nature, not intrinsically adjudicative or peculiar
enforcing a legislative directive that affects individual
to the judicial function. See id. at 229. A "judge who
hires or fires a probation officer [could not] meaningfully
rights. See Gravel, 408 U.S. at 618-21. The plaintiffs'
be distinguished from a district attorney who hires and fires
assistant district attorneys, or indeed from any other
action here -- most clearly as it names the House doorkeeper
Executive Branch official who is responsible for making such
employment decisions." Id.; see also Negron-Gaztambide v.
-- comprises precisely such a claim: the doorkeeper is being
Hernandez-Torres, 35 F.3d 25, 28 (1st Cir. 1994) (legislators
not protected by legislative immunity for administrative act
sued solely for his role in enforcing the challenged
of dismissing librarian), cert. denied, 115 S. Ct. 1098
(1995).
exclusion of all but government lobbyists from lobbying on
Under this functional analysis, the defendant
doorkeeper's acts in determining whether particular
the House floor, and the claim seeks only to enjoin such
individuals were authorized to enter the House chamber are of
an "administrative" nature within the meaning of Negron-
enforcement. The defendant doorkeeper is not distinguishable
Gaztambide. See id. These acts constitute determinations
concerning admission and exclusion, no different in nature
in any meaningful way from the doorkeeper whose claim of
than those that might be made by an official in the executive
branch entrusted with controlling access to a Governor's
absolute legislative immunity was rejected in Powell. See
press conference or, indeed, a doorkeeper standing outside a
privately-owned building. The doorkeeper's acts do not
Powell, 395 U.S. at 504. I would conclude, therefore, that
entail any peculiarly legislative decisionmaking -- in this
case, those decisions were already embodied in the House's
the defendant doorkeeper is not entitled to assert the
adoption of Rule 45. The acts of the doorkeeper in
administering Rule 45 to particular persons seeking access to
defense of absolute legislative immunity,21 and I would
the House chamber are thus not legislative, but
administrative and not entitled to absolute immunity.
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accordingly proceed to a determination of the First Amendment
question presented.22
Reaching the merits of plaintiffs' constitutional
claim, importantly, does no injury to the classic interests
protected by the legislative immunity doctrine. The common
law immunity that state legislators enjoy is "similar in
origin and rationale to that accorded Congressmen under the
Speech or Debate Clause." Supreme Court of Virginia, 446
U.S. at 731. The actions of members of the House in
speaking, debating, or voting on matters before the Rhode
Island House are not being challenged. There is no
infringement on the "fullest liberty of speech" of House
members, nor does this case raise the need to protect House
members "from the resentment of every one, however powerful,
to whom the exercise of that liberty may occasion offense."
Tenney v. Brandhove, 341 U.S. 367, 373 (1951) (citation
omitted).
The legislative immunity doctrine is not meant for
the protection of the legislators for their own benefit, "but
to support the rights of the people, by enabling their
22. As far as the record shows, the defendant Speaker did
not participate in the exclusion of private lobbyists from
the legislative floor. There is no need to decide, at this
time, whether, if the Speaker did participate in other
aspects of Rule 45's enforcement, he would be entitled to
legislative immunity in an action brought against him solely
for his role in such enforcement. Relief against the
doorkeeper's enforcement of the Rule may provide plaintiffs
with all the relief necessary.
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representatives to execute the functions of their office
without fear of prosecutions, civil or criminal." Id. at
373-74 (citation omitted); see also Brewster, 408 U.S. at 507
("The immunities of the Speech or Debate Clause were not
written into the Constitution simply for the personal or
private benefit of Members of Congress, but to protect the
integrity of the legislative process by insuring the
independence of individual legislators."). Reaching the
merits of the constitutional question presented here poses no
threat to the independence of the Rhode Island state
legislators.23
Historically, the privileges of the Speech or
Debate Clause emerged from a need to protect the legislature
from executive intimidation and harassment. See Robert J.
Reinstein & Harvey A. Silverglate, Legislative Privilege and
the Separation of Powers, 86 Harv. L. Rev. 1113, 1120-44
(1973). Indeed, the purpose underlying the Speech or Debate
Clause, that is, to enable speech critical of the government,
also underlies the First Amendment's protection of free
speech. Cf. Akhil R. Amar, The Bill of Rights as a
Constitution, 100 Yale L.J. 1131, 1151 (1991). It would be
ironic indeed to permit the defendants to invoke those
23. Davids v. Akers, 549 F.2d 120 (9th Cir. 1977), does not
support the proposition that the defendants' practices are
immune from constitutional scrutiny. The court there in fact
reached the merits and scrutinized the plaintiffs' First
Amendment claims, but found them wanting.
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immunities to benefit communications between the executive
branch (government lobbyists) and the legislative branch, to
the exclusion of communication from groups of private
citizens. Judicial illumination of the immunity, as James
Madison said, must be guided by "the reason and the necessity
of the privilege." Letter from James Madison to Philip
Doddridge (June 6, 1832), in 4 Letters and Other Writings of
James Madison 221 (1884). That reason and necessity dictate
that this court not credit the immunity defense on the facts
of this case.
First Amendment
Is the First Amendment violated by the defendants'
practice of admitting government lobbyists onto the House
floor to lobby while excluding those not employed by the
government? The answer, I believe, is that the defendants
have violated the First Amendment.
Several interrelated and fundamental First
Amendment interests are offended by the defendants'
practices. The defendants have excluded the plaintiffs'
political speech and have done so in a discriminatory manner.
The defendants' practices have resulted in viewpoint- and
content-based discrimination, favoring government speakers
and government viewpoints and excluding non-government
speakers and non-government viewpoints. The restrictions on
speech posed by the practices are severe in their effects.
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Defendants' discriminatory practices also permit the
government unchecked power to act in its self interest,
rather than in the interest of the citizens. These effects
strike at the heart of the First Amendment, and subject
defendants' practices to the highest level of scrutiny, a
scrutiny defendants cannot withstand.24 Those practices
are not narrowly tailored to meet a compelling state
interest, and therefore fail to pass constitutional muster.
The parties have framed the First Amendment issue
in terms of whether the House Chamber floor is a "public
forum." But the "public forum" doctrine, itself
problematic,25 is particularly ill-suited to this case. It
24. There are additional reasons to apply heightened
scrutiny. In footnote 4 of United States v. Carolene
Products Co., 304 U.S. 144, 152 (1938), oft-quoted for other
language, the Court noted the possibility that:
legislation which restricts those
political processes which can ordinarily
be expected to bring about repeal of
undesirable legislation [might] be
subjected to more exacting judicial
scrutiny under the general prohibitions
of the Fourteenth Amendment than are most
other types of legislation.
The defendants' practices are analogous to just such
restrictive legislation. See John H. Ely, Democracy and
Distrust 76-77 (1980).
25. At best, the public forum doctrine is an "analytical
shorthand for the principles that have guided the Court's
decisions." Cornelius v. NAACP Legal Defense and Educational
Fund, Inc., 473 U.S. 788, 820 (Blackmun, J., dissenting).
"Beyond confusing the issues, an excessive focus on the
public character of some forums, coupled with inadequate
attention to the precise details of the restrictions on
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is peculiar to attempt to fit the doctrine to the floor of
the chamber of a legislative body at work. Indeed, the very
language of "public forum" masks the issues at stake.
As recognized by the district court, the approach
taken by this Court in AIDS Action Committee of
Massachusetts, Inc. v. Massachusetts Bay Transportation
Authority, 42 F.3d 1 (1994), is more apt. This court held
that where the government was the proprietor of the property
it was inappropriate to analyze under the "relatively murky"
public forum doctrine a discriminatory government practice
affecting First Amendment rights. Id. at 9. At issue in
AIDS Action Committee was the MBTA's practice of refusing, on
the grounds that its policy was not to run any sexually
suggestive advertisements, to display condom advertisements
in its subway and trolley cars, while it was at the same time
running sexually suggestive movie advertisements. This court
analyzed and rejected the government's claim that its
practices were viewpoint neutral, finding the government
practice gave rise to an impermissible appearance of
viewpoint discrimination. Because this viewpoint
discrimination disposed of the case, there was no need for
expression, can leave speech inadequately protected in some
cases, while unduly hampering state and local authorities in
others." Laurence H. Tribe, American Constitutional Law 992-
93 (2d ed. 1988) (footnotes omitted); see also Daniel A.
Farber & John E. Nowak, The Misleading Nature of Public Forum
Analysis: Content and Context in First Amendment
Adjudication, 70 Va. L. Rev. 1219 (1984).
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the court to determine whether the cars were a public forum.
For similar reasons, I do not use conventional "public forum"
terminology.
The discrimination in speech practiced by the
defendant must be understood against those interests that the
First Amendment has repeatedly been recognized as serving.
The First Amendment reflects a distrust of the government
making judgments about what speech is worthwhile,
particularly where political speech is involved.26 A
central commitment of the First Amendment is that "debate on
public issues should be uninhibited, robust, and wide-open."
New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964).
"The maintenance of the opportunity for free political
discussion to the end that government may be responsive to
the will of the people and that changes may be obtained by
lawful means, an opportunity essential to the security of the
Republic, is a fundamental principle of our constitutional
system." Stromberg v. California, 283 U.S. 359, 369 (1931)
26. "An insistence that government's burden is greatest for
regulating political speech is based on a sensible view of
government's incentives. It is in this setting that
government is most likely to be biased or to be acting on the
basis of illegitimate, venal, or partial considerations.
Government is rightly distrusted when it is regulating speech
that might harm its own interests; and when the speech at
issue is political, its own interests are almost always at
stake. It follows that the premise of distrust of government
is strongest when politics is at issue. And when the premise
of distrust is strongest, the burden of justification is
highest." Cass R. Sunstein, Democracy and the Problem of
Free Speech 134 (1993).
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(emphasis added). "'[T]here is practically universal
agreement that a major purpose of [the First] Amendment [is]
to protect the free discussion of governmental affairs' . . .
. 'For speech concerning public affairs is more than self-
expression; it is the essence of self-government.'" Burson
v. Freeman, 504 U.S. 191, 196 (1992) (quoting Mills v.
Alabama, 384 U.S. 214, 218 (1966) and Garrison v. Louisiana,
379 U.S. 64, 74-75 (1964)). Political expression is at the
center of the rights protected by the First Amendment. See
id.; Robert H. Bork, Neutral Principles and Some First
Amendment Problems, 47 Ind. L.J. 1, 29 (1971); Cass R.
Sunstein, Free Speech Now, 59 U. Chi. L. Rev. 255, 301
(1992).
The defendants' practices in excluding the voice of
private, but not government, lobbyists from the House floor
imposes a severe burden on political speech. Lobbying aims
at influencing the votes of legislators; it attempts to
affect the outcome of the political processes. Such speech
is "at the heart of the First Amendment's protection." First
National Bank of Boston v. Bellotti, 435 U.S. 765, 776
(1978). More specifically, lobbying involves the attempt by
groups of citizens to have their hired representatives
persuade legislators to legislate in ways that are favorable
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to the interests of those citizens.27 "In a representative
democracy such as this, these branches of government act on
behalf of the people and, to a very large extent, the whole
concept of representation depends upon the ability of the
people to make their wishes known to their representatives."
Eastern Railroad Presidents Conf. v. Noerr Motor Freight,
Inc., 365 U.S. 127, 137 (1961); see also Meyer v. Grant, 486
U.S. 414, 421 (1988) ("[B]oth the expression of a desire for
political change and a discussion of the merits of the
proposed change" are "core political speech."). Where a
challenged practice, as here, imposes a severe burden on
political expression, courts must review the practice with
27. Lobbying may be protected not only as speech, but also
as an exercise of the right to petition. That right,
explicitly embodied in the First Amendment, encompasses the
right of citizens to communicate with their legislative
representatives. See Eastern Railroad Presidents Conf. v.
Noerr Motor Freight, Inc., 365 U.S. 127, 137 (1961) (stating
that the right of petition protects "the ability of the
people to make their wishes known to their representatives").
As lobbying constitutes an important means by which citizens
can collectively make their wishes known to the legislature,
lobbying itself may fall under the coverage of the Petition
Clause. See id. at 137-38; United States v. Nofziger, 878
F.2d 442, 453 (D.C. Cir.) (reading Supreme Court precedents
for the proposition that lobbying, "insofar as it constitutes
self-representation," is protected by the First Amendment
right to petition), cert. denied, 493 U.S. 1003 (1989); see
generally Amar, Bill of Rights, supra, at 1155-56 (suggesting
that part of the purpose of the Petition Clause was to
guarantee that citizens would have a means of informing
representatives of their needs and concerns).
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strict scrutiny. Cf. Burdick v. Takushi, 504 U.S. 428, 434
(1992).28
The private lobbyist restriction is subject to
strict scrutiny not only because it severely burdens
political speech, but also because it discriminates both on
the basis of viewpoint and content. See Burson, 504 U.S. at
197. The restriction constitutes content-based
discrimination because it targets a particular kind of
speech. It is also viewpoint-based discrimination because it
excludes a particular set of messages. The result is a
speaker-based ban and a content-based bar that gives
advantage to the government's viewpoint.29 The
discrimination practiced by defendants thus permits
expression of the "particular message favored by the
government" and stifles all other speech. See Turner
Broadcasting System, Inc. v. FCC, 114 S. Ct. 2445, 2458
(1994); id. at 2477 (O'Connor, J., concurring in part and
28. Lobbying is not subject to a lower standard of
protection even if the hired representatives do it for a
profit. See Board of Trustees of the State Univ. of N.Y. v.
Fox, 492 U.S. 469, 482 (1989).
29. That the non-governmental viewpoint may in fact be an
entire class of varying viewpoints does not make the
restriction any the less viewpoint discrimination. See
Rosenberger v. Rector and Visitors of the Univ. of Va., 115
S. Ct. 2510, 2518 (1995) (rejecting argument that "no
viewpoint discrimination occurs because the [challenged
rules] discriminate against an entire class of viewpoints",
and saying that the "declaration that debate is not skewed so
long as multiple voices are silenced is simply wrong").
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dissenting in part) ("The First Amendment does more than just
bar government from intentionally suppressing speech of which
it disapproves. It also generally prohibits the government
from excepting certain kinds of speech from regulation
because it thinks the speech is especially valuable.").
The defendants' practices thus cannot be
constitutional unless they are narrowly tailored to achieve a
compelling state interest. Id. at 2467 ("[S]peaker-based laws
demand strict scrutiny when they reflect the Government's
preference for the substance of what the favored speakers
have to say (or aversion to what the disfavored speakers have
to say)."); First Nat'l Bank of Boston, 435 U.S. at 785
(First Amendment forbids government from "dictating the
subjects about which persons may speak and the speakers who
may address a public issue."). The government lobbyist
preference as applied here fails that test.
The dangers of the defendants' practices are
plain.30 By simply excluding all voices save the voices of
government lobbyists, the government could easily
30. In the franchise cases, corollary concerns about the
representative nature of government led the Supreme Court to
invalidate laws which resulted in groups of persons being
frozen out of the decision process. Reynolds v. Sims, 377
U.S. 533 (1964); Harper v. Virginia Bd. of Elections, 383
U.S. 663 (1966); Carrington v. Rash, 380 U.S. 89 (1965)
(invalidating Texas statute denying franchise to those in
military who moved into the state where Texas attempted to
justify the statute by arguing military personnel might
otherwise start influencing elections).
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suppress support for a minority party or
an unpopular cause, or . . . exclude the
expression of certain points of view from
the marketplace of ideas.
Members of the City Council v. Taxpayers for Vincent, 466
U.S. 789, 804 (1984). These effects are "so plainly
illegitimate that they would immediately invalidate the
rule." Id. "[Rhode Island] has no . . . authority to
license one side of [the] debate to fight freestyle, while
requiring the other to follow Marquis of Queensbury Rules."
R.A.V. v. City of St. Paul, Minn., 112 S. Ct. 2538, 2548
(1992).
Nor is this risk hypothetical. The Rhode Island
House is singular in the lack of opportunity for private
citizens to have direct, effective communications with
legislators. The ability to communicate directly is a
considerable advantage. The situation created by the private
lobbyist ban is that akin to a monopoly over a single channel
of communication, where the government has discriminated in
providing access to that channel and also determined the
content of what flows through the channel.
Against this panoply of dangers31 must be
31. Defendants' argument poses yet other dangers too. If
the legislature gets information from nowhere but the
executive branch, the legislature's ability to act
independently, and thus to be a check and balance to the
executive is undercut. This corollary danger of the
undercutting of the separation of powers at the state level
is keenly illustrated by the amicus brief filed by the
executive branch, urging strongly its interest in
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measured the interests attributed to the defendants. The
majority finds, in the immunity analysis, that there are two
such interests32 and that the interests would pass a rational
basis test, at least for determining whether to carve out an
exception to the immunity it would grant. Without accepting
the premise that the only exceptions to immunity are
irrational legislative acts, neither of those interests is
sufficient to withstand strict scrutiny.33 Indeed, the
communicating with the legislature and supporting the
exclusion of private voices.
32. To the extent that the House Rule on its face was
justified as an effort to maintain decorum and control noise
to a level which did not interfere with the members work, the
record shows instances in which government lobbyists on the
floor were objected to by members as causing problems. The
defendants accordingly do not try to justify their
discriminatory distinction on such grounds.
33. Defendants' practice does not even meet the less
rigorous test of intermediate scrutiny. Intermediate
scrutiny of restrictions has traditionally been applied to
commercial speech that concerns unlawful activity or is
misleading, see Florida Bar v. Went For It, Inc., 115 S. Ct.
2371, 2375 (1995), and to content-neutral restrictions that
impose an incidental burden on speech, see Turner
Broadcasting, 114 S. Ct. at 2469. The test has three related
prongs: first, the government must assert a substantial
interest in support of the regulation; second, the government
must demonstrate that the restriction directly and materially
advances that interest; and third, the regulation must be
"narrowly drawn." Florida Bar, 115 S. Ct. at 2376. The
government's asserted interest in having government lobbyists
on the floor of the House, to the exclusion of private
lobbyists, is to have them provide information. But the
government has not shown why the interest in having only
government provide information, and not private groups, is
"substantial." Relatedly, the restriction is not "narrowly
tailored" to meet the information provision goal because it
is overbroad and serves to exclude valuable information that
private lobbyists might provide.
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defendants' bedrock argument is different again, and it, too,
is insufficient.
The majority credits reasons of bolstering
legislative independence and of having government lobbyists
act to provide information. But legislative independence was
proffered as a reason for Rule 45 on its face, which excludes
all lobbyists, and not to the distinction between government
and non-government lobbyists.34
Defendants argue that allowing only governmental
lobbyists access to the floor of the legislature serves the
goal of allowing legislators to receive valuable information.
Defendants, however, have established no demonstrable
interest in receiving information from the government to the
exclusion of private sources. The state's purported interest
in limiting the information available to legislators to those
34. A goal of legislative independence is quite legitimate.
But the interest distinctively served by the private lobbyist
restriction is to display to the public the legislature's
special hostility towards the private interest groups that
attempt to influence their votes. "The politicians of [Rhode
Island] are entitled to express that hostility -- but not
through the means of imposing unique limitations upon
speakers who (however benightedly) disagree." R.A.V., 112 S.
Ct. at 2550. "The point of the First Amendment is that
majority preferences must be expressed in some fashion other
than silencing speech on the basis of its content." Id. at
2548. "[T]he First Amendment as we understand it today rests
on the premise that it is government power, rather than
private power, that is the main threat to free expression;
and as a consequence, the Amendment imposes substantial
limitations on the Government even when it is trying to serve
concededly praiseworthy goals." Turner Broadcasting, 114 S.
Ct. at 2480 (O'Connor, J., concurring in part and dissenting
in part).
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sources controlled by its own interests is hardly a
compelling one.35 "A State's claim that it is enhancing
the ability of its citizenry to make wise decisions by
restricting the flow of information to them must be viewed
with some skepticism. . . . '[I]t is often true that the best
means to that end is to open the channels of communication
rather than to close them.'" Anderson v. Celebrezze, 460 U.S.
780, 798 (1983) (quoting Virginia Pharmacy Board v. Virginia
Consumer Council, 425 U.S. 748, 770 (1976)).
Further, the private lobbyist restriction is not
narrowly tailored to serve the legislature's asserted
interest in receiving information. Simon & Schuster, Inc. v.
Members of the New York State Crime Victims Bd., 112 S. Ct.
35. Defendants attempt to liken their private lobbying
restriction to the restrictions on lobbying imposed by Rule
XXXII of the United States House of Representatives.
Defendants' analogy, however, works against them and
demonstrates that there is no "compelling" need to give
government lobbyists access to the floor to lobby while
excluding others. Unlike the defendants' practices, the U.S.
House of Representatives Rule does not allow government
lobbyists to lobby while excluding private lobbyists. Rule
XXXII is neutral and excludes all lobbyists. Even those
normally afforded the courtesy of admission to the floor --
former Members of the House, former Parliamentarians, former
elected officers, and former elected minority employees of
the House -- are denied admission if they or their
organizations have any interest in matters before the House.
Similarly, staff of a Member are not allowed to lobby on the
occasions they are admitted to the House. That the United
States House of Representatives has chosen neutrality and not
to grant preference to the government lobbyists and
information providers (if there is any distinction) undercuts
any argument by defendants that they have a compelling need
to give preference to the government.
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501, 511 n.** (1991). In this case the restriction excludes
valuable information from the legislative purview. As the
majority points out, lobbying groups have vastly different
interests and perspectives. Access to such varied and
independent sources of information, far from impeding the
legislature's access to useful information, surely functions
to increase both the quality and the quantity of the total
set of information available.
The provision of information from executive branch
agencies to members of the legislature is a very legitimate
interest of government. The majority suggests there is a
distinction between mere information providing and lobbying,
but that distinction is contradicted by the record. The
factual findings of the district court leave no doubt that
the court considered the contention that government lobbyists
were engaging in mere "information-providing" and rejected it
as a factual matter.
Even if the distinction were tenable on the facts
here, as it is not, it does not provide refuge from the First
Amendment. There is plainly value to the speech by
government lobbyists, whether it be heavy-handed lobbying or
more lightly dexterous provision of information. See Block
v. Meese, 793 F.2d 1303, 1312-14 (D.C. Cir.) (Scalia, J.),
cert. denied, 478 U.S. 1021 (1986). But the value of
government speech is not the point. Rather, the point is
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that the government has permitted itself to speak while
prohibiting non-government speech.
Speech from non-government speakers, including
lobbyists, is also valuable. Indeed, while lobbying may be
subject to registration and disclosure,36 no case has ever
suggested that lobbying, including its information-gathering
and providing component, could be banned entirely. But that
issue need not be reached here, for what is clear is that the
government must keep the playing field level.37
Moreover, even if there were greater reason to
credit the distinction between "information providing" and
"lobbying," First Amendment "due process" type issues would
still preclude reliance on the distinction to justify the
restriction of First Amendment rights. See Henry P.
Monaghan, First Amendment "Due Process", 83 Harv. L. Rev.
36. This case does not involve any issue of government
subsidy, creation of a government program, or of the taxable
status of organizations involved in lobbying. Cf. Regan v.
Taxation With Representation, 461 U.S. 540 (1983).
37. It is recognized in the political science literature
that much of what modern day lobbyists do involves the
gathering and provision of information to legislators. Cf.
Edward O. Laumann et al., Washington Lawyers and Others: The
Structure of Washington Representation, 37 Stan. L. Rev. 465,
495 (1985); James Q. Wilson, Political Organizations xix-xx
(1995); Jeffrey S. Banks & Barry R. Weingast, The Political
Control of Bureaucracies under Asymmetric Information, 36 Am.
J. Pol. Sci. 509 (1992). Political scientists have found
that lobbyists' primary strategy in influencing legislators
is to provide information to counteract the similar efforts
of other groups, not to achieve influence through pressure
tactics. See David Austen-Smith & John R. Wright,
Counteractive Lobbying, 38 Am. J. Pol. Sci. 25 (1994).
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518, 519 (1970) ("If the Constitution requires elaborate
procedural safeguards in the obscenity area, a fortiori it
should require equivalent procedural protection when the
speech involved - for example, political speech - implicates
more central first amendment concerns."). Even if there were
a discernible distinction, the "difference between factual
statement and advocacy may turn upon the debatability of the
facts described as true, or the pertinency of facts omitted."
Block, 793 F.2d at 1313. The distinction between providing
information and acting for the purpose of "influencing in any
manner the passage of legislation" is exceedingly fine.
Here, legislators testified that "information" provided did
in fact influence them on how to vote. The House has
recognized that information may influence votes. Rule 45 on
its face provides that "no person . . . shall either directly
or indirectly" engage in the practice of lobbying. The House
has thus drawn the line to preclude any activity, even
indirect, to influence votes. The First Amendment puts the
burden on the government to finely tailor its practices to
permissible goals, and no such fine tailoring was done by
defendants' practices here. See Rubin v. Coors Brewing Co.,
115 S. Ct. 1585, 1593 (1995).
The real argument that the defendants have
articulated to justify their actions is their claim that
government lobbyists represent the people while non-
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government lobbyists do not. Accordingly, they say, there is
no cause to worry. That is an inversion of constitutional
values. While there may be value to the government voice, it
cannot be the only voice. To permit that to be so would be
to stifle discussion. See Buckley v. Valeo, 424 U.S. 1, 14
(1976) ("Discussion of public issues . . .[is] integral to
the operation of the system of government established by our
Constitution. The First Amendment affords the broadest
protection to such political expression in order 'to assure
[the] unfettered interchange of ideas for the bringing about
of political and social changes desired by the people.'"
(citing Roth v. United States, 354 U.S. 476 (1957))).
There is another danger, and that is that the
government's voice will not truly represent the interests of
the public.38 Government should theoretically represent
38. Defendants express a legitimate concern that government
may be captured by "special interests." Apart from the fact
that the government itself is frequently its own special
interest group, the solution to the problem of a government
captured by "special interests" would hardly be to have the
government speak only to itself.
Moreover, many of the plaintiff groups may hardly
be characterized as the centers of wealth, power and
privilege. Citizens, who themselves may not be affluent or
powerful, band together in groups to lobby the government,
whether the groups be, to give but two examples, the Rhode
Island State Right To Life Committee, Inc., or the local
chapter of the ACLU. These groups may be thought to be a way
to avoid the capturing of government by "special interests."
Defendants' practices may thus thrust them headlong into the
dangers they profess to wish to avoid. Central to effecting
a system of democratic self-governance is enabling private
interests to be able to act in concert. Without collective
action it may be impossible to alter the status quo. See
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the people and not represent itself. Theory and reality
often depart. The government is not always a mirror of the
people. Government employees today are recognized as
constituting their own interest group. See E. Nordlinger, On
the Autonomy of the Democratic State (1981).
The Framers had a fear that, once in power,
legislators had an obvious incentive to use "that power to
perpetuate themselves or their ilk in office." U.S. Term
Limits, Inc. v. Thornton, 115 S. Ct. 1842, 1911-12 (1995)
(Thomas, J., dissenting) (pointing out numerous instances of
modern day legislation and rulemaking that produce the effect
of perpetuating incumbents in office). T h e F r a m e r s
recognized this would happen and intended the First Amendment
to act as a check. James Madison identified the problem of
government acting in its self-interest, in contrast to the
interests of those it purported to represent, as one of the
two fundamental problems of the republican form of
government.39 "It is of great importance in a republic not
Sunstein, Democracy and the Problem of Free Speech, supra, at
245-46.
39. In a seminal immunity case, Justice Black recognized
Unfortunately, it is true that
legislative assemblies, born to defend
the liberty of the people, have at times
violated their sacred trusts and become
the instruments of oppression. . . .
Those who cherish freedom [under the
First Amendment] here would do well to
remember that this freedom cannot long
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only to guard the society against the oppression of the
rulers, but to guard one part of society against the
injustice of the other part." The Federalist No. 51, at 161
(James Madison) (Roy P. Fairfield 2d ed. 1981) (emphasis
added). Madison feared that government might choose to serve
itself instead of the citizens, saying:
In framing a government which is to be
administered by men over men, the great
difficulty lies in this: you must first
enable the government to control the
governed; and in the next place oblige it
to control itself. A dependence on the
people is, no doubt, the primary control
on government; but experience has taught
mankind the necessity of auxiliary
precautions.
Id. at 160; see also Amar, The Bill of Rights, supra, at
1132-33. Central among those "auxiliary precautions" in
obliging the government to control itself from self-interest
and self-dealing are the protections afforded to citizens by
survive the legislative snuffing out of
freedom . . . to speak.
Tenney v. Brandhove, 341 U.S. 367, 380-81 (1951) (Black, J.,
concurring).
Justice Black echoed concerns voiced earlier by one
of the Framers of the Constitution and advocates for adoption
of the Bill of Rights: "No legislative act, therefore,
Contrary to the Constitution, can be valid. To deny this
would be to affirm . . . that the representatives of the
people are superior to the people themselves." The
Federalist No. 78, at 228 (Alexander Hamilton) (Roy P.
Fairfield 2d ed. 1981) (reply to "Brutus").
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the First Amendment. Defendants' actions violate this
essential purpose of the First Amendment.
Accordingly, I would affirm the declaration by the
district court that the practices of the defendants are
unconstitutional.40 In my view, the defendants must either
adhere to the House Rule and exclude all from its floor who
speak to influence its vote or the House must equally open
its floor, and not prefer the government's voice. That
choice belongs to the House. Under the Constitution, the
choice of preferring the government voice and excluding the
non-government voices does not.
40. The injunction entered by the District Court against the
House, which was not a party to the suit, was in error.
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NASW of RI v. Harwood
Combined Opinion