Doe v. McMillan

Mr. Justice Blackmun,

with whom The Chief Justice joins, concurring in part and dissenting in part.

I join Mr. Justice Rehnquist’s opinion, post, p. 338, but add some comments of my own.

Each step in the legislative report process, from the gathering of information in the course of an officially authorized investigation to and including the official printing and official distribution of that information in the formal report, is legitimate legislative activity and is designed to fulfill a particular objective. More often than not, when a congressional committee prepares a report, it does so not only with the object of advising fellow Members of Congress as to the subject matter, but with the further objects (1) of advising the public of proposed legislative action, (2) of informing the public of the presence of problems and issues, (3) of receiving from the public, in return, constructive comments and suggestions, and (4) of enabling the public to evaluate the performance of their elected representatives in the Congress. The Court has recognized and specifically emphasized the importance, and the significant posture, of the committee report as an integral part of the legislative process when, repeatedly and clearly, it has afforded speech or debate coverage for a Member’s writing, signing, or voting in favor of a committee report just as it has for a Member’s speaking in formal debate on the floor. Gravel v. United States, 408 U. S. 606, 617, 624 (1972); Powell v. McCormack, 395 U. S. 486, 502 (1969); Kilbourn v. Thompson, 103 U. S. 168, 204 (1881).1 That *333protection is preserved by the Court in this case, ante, at 311-313, because the Court appreciates that Congress must possess uninhibited internal communication.

The Court previously has observed that Congress possesses the power “to inquire into and publicize corruption, maladministration or inefficiency in the agencies of the Government” because the public is “entitled to be informed concerning the workings of its government.” Watkins v. United States, 354 U. S. 178, 200 and n. 33 (1957). Indeed, as to this kind of activity, Woodrow Wilson long ago observed, “The informing function of Congress should be preferred even to its legislative function.” 2 The Speech or Debate Clause is an outgrowth of the English doctrine that the courts should not be utilized as instruments to impede the efficient function*334ing of Parliament. Kilbourn v. Thompson, 103 U. S., at 201-205. Because the “informing function” is an essential attribute of an effective Legislative Branch, I feel the Court's curtailment of that function today violates the historical tradition signified textually by the Speech or Debate Clause and underlying our doctrine of separation of powers.

It may be that a congressional committee’s activities and report are not protected absolutely by the Speech or Debate Clause. One may assume that there must be a legitimate legislative purpose in undertaking the investigation or hearing that culminates in the report. Watkins v. United States, 354 U. S., at 200; Barenblatt v. United States, 360 U. S. 109 (1959). I suggest, however, that the publication and distribution of a report compiled in connection with an officially authorized investigation is as much 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,” Gravel v. United States, 408 U. S., at 625, as is the gathering of information or writing and voting for the publication of the report. In the case before us, there can be no question that the activities of the District of Columbia Committee of the House of Representatives were officially authorized and undertaken for a proper legislative purpose. Plenary jurisdiction over the District of Columbia is specifically vested in Congress by Art. I, § 8, of the Constitution.3 Matters *335such as the quality of education afforded by the District’s schools, and the administrative problems they face, obviously are within the scope of the jurisdiction of the District Committee. In this case, it legitimately undertook its investigation of the administration of the school system.4 At the conclusion of its investigation the Committee decided, as did the Committee of the Whole House on the State of the Union,5 that, as a matter of legislative judgment, the report should be printed. It was stated that attachments to one portion thereof were included to “give a realistic view” of a troubled school “and the lack of administrative efforts to rectify the multitudinous problems there.” 6 The report was printed and distributed by the Government Printing Office pursuant to 44 U. S. C. §§ 501 and 701.7 This decision, though reasonable men well may differ as to its wisdom, was a conscious exercise of legislative discretion consti*336tutionally vested in the Legislative Branch and not subject to review by the judiciary. Indeed, as Mr. Justice Rehnquist observes, post, at 339-340, this Court has stated that it is “not consonant with our scheme of government for a court to inquire into the motives of legislators.” Tenney v. Brandhove, 341 U. S. 367, 377 (1951).

Although the Court in the present case holds that the gathering of information, the preparation of a report, and the voting on a resolution authorizing the printing of a committee report are protected activities under the Speech or Debate Clause, it renders that protection for Members of Congress and legislative personnel less than meaningful by further holding that the authorized public distribution of a committee document may be enjoined and those responsible for the distribution held liable when the document contains materials “otherwise actionable under local law.” Ante, at 317. The Court’s holding thus imposes on Congress the onerous burden of justifying, apparently by “substantial evidence,” ibid., the inclusion of allegedly actionable material in committee documents.8 This, unfortunately, ignores the realities *337of the “deliberative and communicative processes,” Gravel v. United States, 408 U. S., at 625, by which legislative decisionmaking takes place.

Although it is regrettable that a person’s reputation may be damaged by the necessities or the mistakes of the legislative process,9 the very act of determining judicially whether there is “substantial evidence” to justify the inclusion of “actionable” information in a committee report is a censorship that violates the congressional free speech concept embodied in the Speech or Debate Clause10 and is, as well, the imposition of this Court’s judgment in matters textually committed to the discretion of the Legislative Branch by Art.-1 of the Constitution. I suspect that Mr. Chief Justice Marshall and his concurring Justices would be astonished to learn that the time-honored doctrine of judicial review they enunciated *338in Marbury v. Madison, 1 Cranch 137 (1803), has been utilized to foster the result reached by the Court today.11

Stationing the federal judiciary at the doors of the Houses of Congress for the purpose of sanitizing congressional documents in accord with this Court’s concept of wise legislative decisionmaking policy appears to me to reveal a lack of confidence in our political processes and in the ability of Congress to police its own members. It is inevitable that occasionally, as perhaps in this case, there will be unwise and even harmful choices made by Congress in fulfilling its legislative responsibility. That, however, is the price we pay for representative government. I am firmly convinced that the abuses we countenance in our system are vastly outweighed by the demonstrated ability of the political process to correct overzealousness on the part of elected representatives.

We are to read the Speech or Debate Clause “broadly to effectuate its purposes.” United States v. Johnson, 383 U. S. 169, 180 (1966); Gravel v. United States, 408 U. S. 606, 624 (1972). The “central role” of the Clause is “to prevent intimidation of legislators *333by the Executive and accountability before a possibly hostile judiciary,” id., at 617. The breadth of coverage of the Speech or Debate Clause must be no less extensive than the legislative process it is designed to protect, for the Clause insures for Congress “wide freedom of speech, debate, and deliberation without intimidation or threats from the Executive Branch,” id., at 616, or, I might suppose, from the judiciary.

“It is the proper duty of a representative body to look diligently into every affair of government and to talk much about what it sees. It is meant to be the eyes and the voice, and to embody the wisdom and will of its constituents. Unless Congress have and use every means of acquainting itself with the acts and the disposition of the administrative agents of the government, the country must be helpless to learn how it is being served; and unless Congress both scrutinize these things and sift them by every form of discussion, the country must remain in embarrassing, crippling ignorance of the very affairs which it is most important that it should understand and direct. The informing function of Congress should be preferred even to its legislative function. The argument is not only that discussed and interrogated administration is the only pure and efficient administration, but, more than that, that the only really self-governing people is that people which discusses and interrogates its administration.” W. Wilson, Congressional Government 303 (1885).

Article I, § 8, reads in part as follows:

“The Congress shall have Power . . .
“To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of Particular States, and the Acceptance of Congress, become the Seat of the Government of the United States . . . .”

House Res. 76, 91st Cong., 1st Sess., 115 Cong. Rec. 2784 (1969), authorized the Committee, “as a whole or by subcommittee ... to conduct a full and complete investigation” of the “organization, management, operation, and administration of any department or agency,” and of “any independent agency or instrumentality” of government in the District of Columbia.

116 Cong. Rec. 40311 (1970).

H. R. Rep. No. 91-1681, p. 212 (1970).

The Court notes, ante, at 323, apparently in alleviation of its conclusion as to possible liability, that a specific statutory grant of immunity to the Public Printer and the Superintendent of Documents relieving them of personal liability for the distribution of an unprotected document has not been conferred. But it is not clear how, if liability otherwise exists, such a grant of immunity would shield these public servants in a case involving alleged constitutional violations. Thus, the Court has placed the Public Printer and Superintendent of Documents in the untenable position either of accepting the risk of personal liability, whenever a congressional document officially is printed and distributed, or of violating the specific command of a congressional resolution ordering the printing and distribution.

An interesting dilemma is presented by the possibility of an injunction against distribution where “otherwise actionable” material is printed in the Congressional Record. The Court recognizes the existence of this problem and reserves its resolution for another day. Ante, at 325 n. 16. The Congressional Record, however, receives wide public distribution on a regular basis and it is not an uncommon occurrence for all or part of a committee report or other document to be read into the Record by a Member of Congress. In light of the Court’s holding in this case, it is conceivable that, in lieu of separate publication as a committee document, a committee report containing possibly actionable material hereafter will be printed in the Record in order to effectuate public distribution. It appears to me almost beyond question that an injunction against the distribution of the Congressional Record is clearly precluded by the Speech or Debate Clause and by the Constitution’s Art. I, § 5, cl. 3, pro*337viding that “[e]ach House shall keep a Journal of its Proceedings, and from time to time publish the same, excepting such Parts as may in their Judgment require Secrecy.”

Only last Term, in United States v. Brewster, 408 U. S. 501, 516-517 (1972), the Court emphasized that:

“In its narrowest scope, the [Speech or Debate] Clause is a very large, albeit essential, grant of privilege. It has enabled reckless men to slander and even destroy others with impunity, but that was the conscious choice of the Framers.
“. . . The authors of our Constitution were well aware of the history of both the need for the privilege and the abuses that could flow from too sweeping safeguards. In order to preserve other values, they wrote the privilege so that it tolerates and protects behavior on the part of Members not tolerated and protected when done by other citizens, but the shield does not extend beyond what is necessary to preserve the integrity of the legislative process.”

I do not reach the question whether the withholding of information from the public with respect to matters being considered by elected representatives in any way diminishes protected First Amendment values.

“The premise that courts may refuse to enforce legislation they think unconstitutional does not support the conclusion that they may censor congressional language they think libelous. We have no more authority to prevent Congress, or a committee or public officer acting at the express direction of Congress, from publishing a document than to prevent them from publishing the Congressional Record. If it unfortunately happens that a document which Congress has ordered published contains statements that are erroneous and defamatory, and are made without allowing the persons affected an opportunity to be heard, this adds nothing to our authority. Only Congress can deal with such a problem.” Methodist Federation for Social Action v. Eastland, 141 F. Supp. 729, 731-732 (DC 1956 (three-judge court)).