Reversed and remanded by published opinion. Judge LUTTIG wrote the majority opinion, in which Chief Judge ERVIN, Judges HALL, MURNAGHAN, WILKINS, NIEMEYER, HAMILTON, WILLIAMS, MICHAEL, and MOTZ and Senior Judge PHILLIPS joined. Senior Judge PHILLIPS wrote a special concurring opinion, in which Chief Judge ERVIN and Judge MURNAGHAN joined. Judge WIDENER wrote a dissenting opinion. Judge WILKINSON wrote a dissenting opinion, in which Judge RUSSELL and Judge WIDENER joined.
OPINION
We heard this case en banc to decide whether a municipality, here the City of Charleston, is entitled to absolute immunity from liability under 42 U.S.C. § 1983 for the unconstitutional enactments and actions of its local legislature. The numerous circuits that have addressed the question have unanimously concluded, in recognition of Supreme Court precedent, that municipalities are not entitled to such an immunity. We now join our sister circuits and hold that a municipality is not immune from liability under section 1983 for the enactments and actions of the local legislative body.
I.
In Monell v. New York City Dep’t of Social Servs., 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), the Supreme Court held that municipalities and other local governments are “persons” subject to liability for constitutional violations under 42 U.S.C. § 1983. Id. at 690, 98 S.Ct. at 2035-36. A municipality may only be found liable under section 1983, however, where “the action that is alleged to be unconstitutional implements or executes a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body’s officers.” Id. Since Monell, municipalities and local governments have repeatedly, and unsuccessfully, attempted to secure some immunity from liability in suits brought under section 1983.
In the course of adjudicating these various claims to immunity, the Supreme Court has left no doubt that municipalities and local governments are not entitled to immunity from suits brought under section 1983. Chief Justice Rehnquist, writing for a unanimous Court, could not have been any clearer when he observed recently that “unlike various government officials, municipalities do not enjoy immunity from suit — either absolute or qualified — under § 1983.” Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, — U.S. —, —, 113 S.Ct. 1160, 1162, 122 L.Ed.2d 517 (1993). The Chief Justice based his observation in Leatherman on the Court’s decision in Owen v. City of Independence, 445 U.S. 622, 100 S.Ct. 1398, 63 L.Ed.2d 673 (1980), where, in denying municipalities a qualified immunity defense to claims brought under section 1983, see id. at 650, 100 S.Ct. at 1415, the Court “held” that “municipalities have no immunity from damages liability flowing from their constitutional violations,” id. at 657, 100 S.Ct. at 1418. In the face of such clear and broad pronouncements by the Supreme Court, we have little trouble concluding that a municipality is not immune from section 1983 liability for unconstitutional enactments and other legislative activities of the local legislature.1
With regard to the inquiry into tradition, the Court unqualifiedly concluded that “there is no tradition of immunity for municipal corporations.” Id. at 638, 100 S.Ct. at 1409. Though the Court was able to identify two common law doctrines that might have served as a basis for municipal immunity, it held that neither of these immunities survived Congress’ enactment of section 1 of the Civil Rights Act of 1871. Id. at 644, 100 S.Ct. at 1412.
The first of these common law doctrines “sought to distinguish between a municipality’s ‘governmental’ and ‘proprietary’ functions,” with the municipality subject to liability for the latter, but immune from liability as to the former. Id. The Court found that by 1871, the immunity from suit for a municipality’s “governmental functions” had largely been “nullified” by the states. Id. at 645-46, 100 S.Ct. at 1412-13; see also id. at 646, 100 S.Ct. at 1413 (referring to “nominal existence” of such an immunity). In any event, because the governmental function immunity was rooted in principles of sovereign immunity, id. at 645, 100 S.Ct. at 1412, the Court held that the immunity was “obviously abrogated” by the enactment of section 1983, id. at 647, 100 S.Ct. at 1413:
By including municipalities within the class of “persons” subject to liability for violations of the Federal Constitution and laws, Congress — the supreme sovereign on matters of federal law — abolished whatever vestige of the State’s sovereign immunity the municipality possessed.
Id. at 647-48, 100 S.Ct. at 1413-14 (footnote omitted).
The Court in Owen identified as a second common law protection available to municipalities in the nineteenth century a doctrine that “immunized a municipality for its ‘discretionary5 or ‘legislative’ activities,” but which did not protect municipalities from liability for acts “ministerial” in nature. Id. at 644, 100 S.Ct. at 1412. This doctrine was grounded in separation of powers principles, the concern being that “[f]or a court or jury ... to review the reasonableness of the city’s judgment on [discretionary or legislative] matters would be an infringement upon the powers properly vested in a coordinate and coequal branch of government.” Id. at 648, 100 S.Ct. at 1414. As it had found with the municipality’s common law immunity from liability for its “governmental” actions, the Court found the municipality’s immunity from lability for its “discretionary” or “legislative” activities to be largely hollow at the time Congress enacted the Civil Rights Act of 1871. Id. at 649,100 S.Ct. at 1414. More importantly, the Court found that the very rationale behind the immunity for discretionary activities precluded any claim that the immunity survived the enactment of section 1983:
Th[e] common-law doctrine [of legislative or discretionary immunity] merely prevented courts from substituting their own judgment on matters within the lawful discretion of the municipality. But a municipality has no “discretion” to violate the Federal Constitution; its dictates are absolute and imperative. And when a courtPage 298passes judgment on the municipality’s conduct in a § 1983 action, it does not seek to second-guess the “reasonableness” of the city’s decision nor to interfere with the local government’s resolution of competing policy considerations. Rather, it looks only to whether the municipality has conformed to the requirements of the Federal Constitution and statutes.
Id. The Court in Owen thus rejected any sovereign immunity or separation of powers justification for municipality immunity from suit under section 1983, and the Court was able to identify no other possible historical or doctrinal source of immunity from suit for constitutional violations.
If there were any doubt that the Court’s pronouncements in Leathermcm and Owen, coupled with the Court’s reasoning in Owen, preclude the municipal legislative immunity asserted in this case, it is obvious from the facts before the Court in Owen that the abrogation of municipality immunity effected by section 1983 extends as well to a municipality’s legislative activities. In Owen, the local Chief of Police claimed that the City of Independence, the City Manager, and members of the City Council in their official capacity, had deprived him of his protected liberty interest in his “good name, reputation, honor, or integrity” without due process of law, in violation of the Fourteenth Amendment. Id. at 633 n. 13, 100 S.Ct. at 1406 n. 13 (quoting Wisconsin v. Constantineau, 400 U.S. 433, 437, 91 S.Ct. 507, 510, 27 L.Ed.2d 515 (1971)). Specifically, he alleged that “the city — through the unanimous resolution of the City Council — released to the public an allegedly false statement impugning [his] honesty and integrity.” Id.2 Thus, the plaintiff in Owen, like the plaintiffs in this case, directly challenged the city’s exercise of a core legislative function, embodied in an official vote of the local legislative body.3 After considering both the nature of the asserted constitutional violation and the City Council’s role in causing the violation, the Court was left with “no doubt that the Court of Appeals correctly concluded that the city’s actions deprived petitioner of liberty without due process of law.” Id. The Court’s denial to the municipality of a qualified immunity defense for the unconstitutional legislative activities in Owen leads inescapably to the conclusion that a municipality is not entitled to an absolute immunity for the very same governmental conduct. See, e.g., Hollyday v.
Indeed, the Court routinely cites the enactment of legislation as the prototypical government conduct that can give rise to liability under Monell’s “policy or custom” requirement. In Pembaur v. City of Cincinnati, 475 U.S. 469, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986), for instance, a majority of the Court joined Justice Brennan’s observation that “[n]o one has ever doubted ... that a municipality may be hable under § 1983 for a single decision by its properly constituted legislative body ... because even a single decision by such a body unquestionably constitutes an act of official government policy.” Id. at 480, 106 S.Ct. at 1298; see also id. at 483 n. 12, 106 S.Ct. at 1300 n. 12 (plurality) (“[I]f county employment policy was set by the Board of County Commissioners ... that body’s decisions would provide a basis for county liability.”). Even the dissenters in Pembaur agreed that an unconstitutional enactment of a local legislature could give rise to municipal liability under section 1983:
Another factor indicating that policy has been formed is the process by which the decision at issue was reached. Formal procedures that involve, for example, voting by elected officials, prepared reports, extended deliberation, or official records indicate that the resulting decisions taken “may fairly be said to represent official policy.” Monell, supra, [436 U.S.] at 694 [98 S.Ct. at 2037]. Owen v. City of Independence, 445 U.S. 622 [100 S.Ct. 1398, 63 L.Ed.2d 673] (1980), provides an example. The City Council met in a regularly scheduled meeting. One member of the Council made a motion to release to the press certain reports that cast an employee in a bad light. After deliberation, the Council passed the motion with no dissents and one abstention. Id. at 627-29 [100 S.Ct. at 1403-04], Although this official action did not establish a rule of general applicability, it is clear that policy was formed because of the process by which the decision was reached.
Pembaur, 475 U.S. at 500, 106 S.Ct. at 1309 (Powell, J., dissenting). And in City of St. Louis v. Praprotnik, 485 U.S. 112, 108 S.Ct. 915, 99 L.Ed.2d 107 (1988), a case in which the Court divided three ways over the proper standard for determining when municipal action amounts to a custom or policy, the Court was unanimous that a municipality can and will be held liable under section 1983 for an unconstitutional exercise of power by the municipality’s legislative body. See id. at 126, 108 S.Ct. at 925-26 (O’Connor, J., joined by Rehnquist, C.J., and White and Scalia, JJ.) (“[0]ne would have to conclude that policy decisions made ... by the Mayor and Aider-men,” who are authorized to adopt ordinances relating to personnel administration, “would be attributable to the city itself.”); id. at 125,108 S.Ct. at 925 (actions of “official or body that has the responsibility for making law” can give rise to municipal liability under section 1983); id. at 138, 108 S.Ct. at 932 (Brennan, J., concurring in the judgment, joined by Marshall and Blackmun, JJ.) (“Nor have we ever doubted that a single decision of a city’s properly constituted legislative body is a municipal act capable of subjecting the city to liability.”); id. at 140, 108 S.Ct. at 933 (“[I]n Owen and Fact Concerts we deemed it fair to hold municipalities liable for the isolated, unconstitutional acts of their legislative bodies .... ”);4 id. at 147, 108 S.Ct. at 936 (Stevens, J., dissenting) (presuming that legislative acts can give rise to municipal liability).
In the face of this overwhelming authority, the City of Charleston attempts to justify its claim of absolute legislative immunity by reference to the tradition and policy justifications supporting the legislative immunity for individual legislators. While there is indeed a long tradition of granting individual legislators at all levels of government a broad immunity from suits based upon their legitimate legislative activities,5 and though there are undoubtedly strong public policy justifications for such immunity,6 the Supreme Court has instructed that
The Court has made clear that neither the tradition nor the public policy considerations supporting a broad legislative immunity for legislators sued in their individual capacity has persuasive force when the liability of the municipality is at issue. The Court foreclosed reliance on the tradition of legislative immunity for individual legislators when it stated in unequivocal terms that “there is no tradition of immunity for municipal corporations.” Id. at 638, 100 S.Ct. at 1409.
As to the public policy behind granting individual officers an immunity, the Court explained in Owen that the “overriding considerations of public policy,” which, on occasion, have led the Court to conclude that an “official be given a measure of protection from personal liability,” are “less compelling, if not wholly inapplicable, when the liability of the municipal entity is at issue.” Id. at 653, 100 S.Ct. at 1416. The Court in Owen cited two such policy considerations: first, the injustice of holding a public officer personally liable for making discretionary decisions mandated by his public employment, and second, “the danger that the threat of such liability would deter his willingness to execute his office with the decisiveness and the judgment required by the public good.” Id. at 654,100 S.Ct. at 1417 (quoting Scheuer v. Rhodes, 416 U.S. 232, 240, 94 S.Ct. 1683, 1688, 40 L.Ed.2d 90 (1974)). The Court dismissed the first concern as simply inapplicable when the municipality’s liability is at issue. See id. And, though the second rationale, concerned with the deterrent effect of an adverse judgment, would seem to apply to municipalities as well as to individuals, the Court nonetheless found that this rationale likewise “loses its force when it is the municipality, in contrast to the official, whose liability is at issue.” Id. at 655, 100 S.Ct. at 1418. The Court explained that
[a]t the heart of this justification for a qualified immunity for the individual official is the concern that the threat of personal monetary liability will introduce an unwarranted and unconscionable consideration into the decisionmaking process, thus paralyzing the governing official’s decisiveness and distorting his judgment on matters of public policy. The inhibiting effect is significantly reduced, if not eliminated, however, when the threat of personal liability is removed. First, as an empirical matter, it is questionable whether the hazard of municipal loss will deter a public officer from the conscientious exercise of his duties; city officials routinely make decisions that either require a large expenditure of municipal funds or involve a substantial risk of depleting the public fisc. More important, though, is the realization that consideration of the municipality’s liability for constitutional violations is quite properly the concern of its elected or appointed officials. Indeed, a decisionmaker would be derelict in his duties if, at some point, he did not consider whether his decision comports with constitutional mandates and did not weigh the risk that a violation might result in an award of damages from the public treasury.
Id. at 655-56, 100 S.Ct. at 1418 (citations and footnotes omitted) (emphases in original); see also id. at 653 n. 37, 100 S.Ct. at 1416 n. 37 (citing Lake Country Estates, Inc. v. Tahoe Regional Planning Agency, 440 U.S. 391, 405 n. 29, 99 S.Ct. 1171, 1179 n. 29, 59 L.Ed.2d 401 (1979)) (“[T]he justifications for
Indeed, in the Court’s view, the very existence of an immunity for individual officials cuts strongly in favor of denying immunity to the municipality the official represents. In Owen, for instance, the Court concluded that, in light of the qualified immunity already afforded to officials sued individually, the only way to “properly allocate[ ]” the costs of constitutional violations among government officials, municipalities, and victims, is to deny an immunity defense to the municipality. Id. at 657, 100 S.Ct. at 1418-19. And in Lake Country Estates, the Court justified its grant of absolute immunity to regional legislators serving on the Tahoe Regional Planning Agency (TRPA), in part on the fact that a plaintiff would still be able to proceed against the regional entity:
If the [legislators serving on TRPA] have enacted unconstitutional legislation, there is no reason why relief against TRPA itself should not adequately vindicate petitioners’ interests.
Lake Country Estates, 440 U.S. at 405 n. 29, 99 S.Ct. at 1179 n. 29 (emphasis added).7
In sum, though the issue before us today is an important one, it is ultimately easily resolved. The Supreme Court effectively answered the question fifteen years ago in Owen. A unanimous Court in Leatherman recently reaffirmed Owen, and every other circuit to have addressed the issue has read Owen as foreclosing the possibility of legislative immunity for municipalities. In accord with this controlling, and otherwise impressive, body of authority, we hold that a municipality is not entitled to an absolute immunity for the actions of its legislature in suits brought under 42 U.S.C. § 1983.
II.
In the instant case, the appellants’ complaint alleged that, in enacting the annual budget for the City of Charleston in 1993, Charleston’s Common Council denied appellants a salary increase on the impermissible ground that the appellants had actively supported a candidate in the prior mayoral election other than the one favored by a majority of the members of the Common Council, in violation of the First Amendment. The plaintiffs thus directly challenged the Common Council’s execution of a core legislative function. J.A. at 72 (opinion of district court) (“Plaintiffs’ complaint squarely attacks a classic legislative function of the Council.”); see also Rateree v. Rockett, 852 F.2d 946, 950 (7th Cir.1988) (“Budgetmaking is a quintessential legislative function reflecting the legislators’ ordering of policy priorities in the face of limited financial resources.” (citation omitted)).8
The district court dismissed the complaint without addressing the merits of plaintiffs’ claim, holding that the City of Charleston, the real party in interest in this case, see Goldsmith v. Mayor and City Council of Baltimore, 987 F.2d 1064, 1066 n. 2 (4th Cir.1993), is absolutely immune from suits challenging the activities of the Common Council of the City of Charleston. The district court reasoned:
Plaintiffs’ allegation that the Council denied their raises solely because of their political support of Mayor Hall would necessarily require an examination of the Council’s motive for its vote. Such an inquiry “runs squarely afoul of the doctrine of legislative immunity.” Where a suit would require testimony from legislaPage 303tors regarding their legislative activities, “the doctrine of legislative immunity has full force.”
J.A. at 73 (citation omitted). Because we hold today that the City of Charleston is not entitled to absolute immunity under section 1983 from suits involving the decisions and enactments of Charleston’s Common Council, the judgment of the district court is reversed. To the extent that our opinions in Baker v. Mayor and City Council of Baltimore, 894 F.2d 679, 682 (4th Cir.), cert. denied, 498 U.S. 815, 111 S.Ct. 56, 112 L.Ed.2d 31 (1990), and Schlitz v. Commonwealth of Virginia, 854 F.2d 43, 45-46 (4th Cir.1988),9 can be read to confer legislative immunity on municipalities from suits brought under section 1983, those decisions are overruled.
The judgment of the district court is reversed and the case is remanded for further proceedings.
REVERSED AND REMANDED.
1.
Our dissenting colleagues do not challenge our reading of this controlling caselaw. They ground their dissent instead exclusively on what they perceive to be the unacceptable policy implica*297tions of our decision. Ours, however, is not to craft a wise or effective policy, but rather, only to interpret section 1983 consistently with the Supreme Court’s interpretation of that statute. In performing this task, we must assume that, to the extent they are relevant, the Court considered the forceful policy arguments advanced by the dissent before making the categorical statements that it did in Monell, Owen, Lake Country Estates, and Leatherman.
2.
The City Council's involvement in the unconstitutional deprivation in Owen was extensive:
On the evening of April 17, 1972, the City Council held its regularly scheduled meeting. After completion of the planned agenda, Councilman Roberts read a statement he had prepared on the investigation. Among other allegations, Roberts charged that petitioner had misappropriated Police Department property for his own use, that narcotics and money had "mysteriously disappeared" from his office, that traffic tickets had been manipulated, that high ranking police officials had made “inappropriate” requests affecting the police court, and that "things have occurred causing the unusual release of felons." At the close of his statement, Roberts moved that the investigative reports be released to the news media and turned over to the prosecutor for presentation to the grand jury, and that the City Manager "take all direct and appropriate action” against those persons "involved in illegal, wrongful, or gross inefficient activities brought out in the investigative reports." After some discussion, the City Council passed Roberts’ motion with no dissents and one abstention.
Owen, 445 U.S. at 627-29, 100 S.Ct. at 1403-04 (footnotes omitted) (emphasis added).
3.
Actions virtually identical to those of the City Council in Owen were held to be legislative in nature in Tenney v. Brandhove, 341 U.S. 367, 377-78, 71 S.Ct. 783, 788-89, 95 L.Ed. 1019 (1951). In Tenney, the plaintiff charged a committee of the California Senate with violating his constitutional rights by holding a hearing in which the committee impugned plaintiff's reputation and at which the committee chairman "read into the record a statement concerning an alleged criminal record of [plaintiff's], a newspaper article denying the truth of [plaintiff's] charges, and a denial by the Committee’s counsel — who was absent — that [plaintiff's] charges were true.” Id. at 371, 71 S.Ct. at 785. The Court in Tenney granted the individual legislators absolute immunity from suit because these actions were within "the sphere of legitimate legislative activity.” Id. at 376, 71 S.Ct. at 788; see also Hernandez v. City of Lafayette, 643 F.2d 1188, 1196 (5th Cir. Unit A May 1981) ("[T]he constitutional violation about which the plaintiff in Owen could legally complain was caused by the members of the city council while performing a legitimate legislative function.”), cert. denied, 455 U.S. 907, 102 S.Ct. 1251, 71 L.Ed.2d 444 (1982). On similar facts in Owen, the municipality was not afforded any immunity.
4.
In City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 101 S.Ct. 2748, 69 L.Ed.2d 616 (1981), the Court considered a section 1983 claim against a municipality that was premised on the unconstitutional conduct of the local legislature. The plaintiffs in Fact Concerts challenged the Newport City Council's decision, rendered through a vote of the Council, to cancel a city license issued to a concert promoter unless the promoter removed the band Blood, Sweat and Tears from the concert program. See id. at 250-52, 101 S.Ct. at 2751-52 (plaintiff charged city and City Council with content-based censorship based upon the Council’s "vote[] to cancel the license for both days unless Blood, Sweat and Tears were removed from the program”).
5.
The protections afforded federal legislators are found in the Constitution itself. See U.S. Const, art. I, § 6, cl. 1 ("The Senators and Representatives ... for any Speech or Debate in either House ... shall not be questioned in any other Place.”); Gravel v. United States, 408 U.S. 606, 615, 92 S.Ct. 2614, 2622, 33 L.Ed.2d 583 (1972) (finding "incontrovertible” the conclusion that the Speech or Debate Clause "at the very least protects [Congressmen] from criminal or civil liability and from questioning elsewhere than in the [Congress]" for matters related to the legislative process). The majority of states have adopted similar constitutional provisions granting state legislators absolute immunity from suits based on actions and statements made during the legislative process. See Tenney v. Brandhove, 341 U.S. 367, 375, 71 S.Ct. 783, 787, 95 L.Ed. 1019 (1951).
Building on this tradition, the Supreme Court has also recognized an absolute immunity from section 1983 liability for state and regional legislators, who are not otherwise protected by the Speech or Debate Clause and whose state immunity would not protect them from suits brought under section 1983. See id. at 376, 71 S.Ct. at 788 (holding that state legislators are entitled to immunity from civil liability under section 1983 for actions and statements made "in the sphere of legitimate legislative activity”); Lake Country Estates, Inc. v. Tahoe Regional Planning Agency, 440 U.S. 391, 405, 99 S.Ct. 1171, 1179, 59 L.Ed.2d 401 (1979) (holding that legislators serving on regional, multi-state entity are entitled to absolute immunity on reasoning of Tenney).
And, though the Supreme Court has expressly reserved the issue, see id. at 404 n. 26, 99 S.Ct. at 1178 n. 26, most circuits, including this one, have relied on Tenney and Lake Country to hold that local legislators, sued in their individual capacity, are entitled to absolute immunity from section 1983 suits relating to their legitimate legislative activities. See Bruce v. Riddle, 631 F.2d 272, 279 (4th Cir.1980) ("[I]f legislators of any political subdivision of a state function in a legislative capacity, they are absolutely immune from being sued under the provisions of § 1983.”); see also Goldberg, 973 F.2d at 72 (collecting cases).
6.
As the Court observed in Tenney,
Legislators are immune from deterrents to the uninhibited discharge of their legislative duty, not for their private indulgence, but for the public good. One must not expect uncommon courage even in legislators. The privilegePage 301would be of little value if they could be subjected to the cost and inconvenience and distractions of a trial upon a conclusion of the pleader, or to the hazard of a judgment against them based upon a jury’s speculation as to motives.
Tenney, 341 U.S. at 377, 71 S.Ct. at 788; see also Collinson v. Gott, 895 F.2d 994, 1007 (4th Cir.1990) (Wilkinson, J., concurring in the judgment) ("[Fjederal trials may yet degenerate into partisan affairs if litigation provides the political opponents of presiding officers with another forum to score points.”); id. at 1008 ("The flow of information through th[e] [legislative] process could be severely jeopardized if every public meeting carried with it the threat of civil liability....”).
7.
Similarly, in granting absolute immunity to state legislators in Tenney, the Court was careful to "note[] that this is a case in which the defendants are members of a legislature. Legislative privilege in such a case deserves greater respect than where ... the legislature seeks the affirmative aid of the courts to assert a privilege.” Tenney, 341 U.S. at 378, 71 S.Ct. at 789; see also id. at 379, 71 S.Ct. at 789-90 (Black, J., concurring) ("It is not held that the validity of legislative action is coextensive with the personal immunity of the legislators.”); id. ("The Court holds that the Civil Rights statutes were not intended to make legislators personally liable for damages to a witness injured by a committee exercising legislative power.” (emphasis added)).
8.
Because the Common Council’s decision to deny the salary increases was legislative, we decline the appellees’ invitation to deny the City’s claim of legislative immunity on the ground that the Council’s action was administrative in nature. See Roberson v. Mullins, 29 F.3d 132, 135 (4th Cir.1994).
9.
Under Baker and Schlitz, Charleston’s council members may be privileged from testifying in federal district court as to their motives in enacting legislation. Because appellants do not challenge this testimonial privilege, except to the extent that such a privilege could be interpreted to afford municipalities immunity from liability under section 1983, we do not address herein the vitality of this privilege in the wake of Owen and today’s holding.