USCA1 Opinion

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

Special Assistant Attorney General,

General, and

Alan M. Shoer,
_______________

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,
SELYA,

Circuit Judge.
Circuit Judge.
_____________

Over a

century ago,

Charles

Dudley

Warner,

earned a

makes

nineteenth-century

sliver of immortality

strange

by coining the

bedfellows."

improbable alliance

This

Union,

phrase "politics

which

forges

an

as the National

and

Island Affiliate of the American

the Rhode

Island

the Coalition to Preserve

Education Association,

journalist,

the Rhode Island State Rifle

Revolver Association, the Rhode

Committee, Inc.,

appeal,

among such disparate groups

Association of Social Workers,

Civil Liberties

Connecticut

and Ocean

State Right

to

Life

Choice, the National

State Action, proves

that the

aphorism still has force.

Here,

the improbable

organizations) banded together

Rhode Island's

Speaker of

federal district

allies (all

private, non-profit

with others to bring an action in

court against John

B. Harwood,

the Rhode Island House of Representatives (the House)

and

Guido

Petteruti,

plaintiffs

rule

as

House's

head

doorkeeper.1

The

challenged the constitutionality of House Rule 45

that purports to ban

floor of

and

the

both lobbyists and

the House while the

applied.

plaintiffs and

prevailing

The

ordered the House

practices

with

lobbying from the

House is in session

district court

found

for

to desist from

regard

to

the

on its face

most of

the

continuing its

interpretation

and

____________________

1Other

plaintiffs in the underlying action included several

individuals registered as

lobbyists for non-profit organizations

(Kate

Coyne-McCoy, Harvey

Press, Scott

Susan

Closter-Godoy, Steven Brown,

Nova,

Barbara Baldwin,

Barbara Colt, Donn Dibiasio,

Anna Sullivan, and Marti Rosenberg), and three elected members of

the

House

(Edith

Ajello,

Barbara

Gaschen).

Burlingame,

and

Francis

enforcement of Rule 45.

Harwood,
_______

874

F.

Given the benefit

legislative

Supp.

530 (D.R.I.

of briefing

immunity

district judge,

See National Ass'n of Social Workers

___ ________________________________

BACKGROUND
BACKGROUND

(Social Workers).2
_______________

and argument on

benefit denied

since the defendants

raise the issue in the lower court

I.
I.

1995)

v.

the doctrine

to the

distinguished

inexplicably neglected

we reverse.

of

to

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.

them was Rule

appendix).

be on

that

text of which

On its face, Rule 45 banishes

floor of the

session.

45 (the full

is reproduced in

Among

the

all lobbyists from the

House (and the House lounge) while

the House is in

Nonetheless, the rule permits members of the public to

the House floor

while the House

is in

session, provided

"they remain seated along the sides of the chamber, refrain

from conversation, and

maintain the decorum

provided further that they do

of the House,"

and

not "directly or indirectly engage

in the practice of lobbying."

Rule 45(b).

____________________

2The

district court

plaintiffs,
Amendment

who

claimed

right to

nonetheless
that

receive

Rule

rebuffed the
45

violated

legislatortheir

First

The

court

political information.

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
542.

The

deprivation."

Social Workers,
______________

legislator-plaintiffs

accordingly, we confine

have

not

874 F.

appealed

our discussion to the claims

the other plaintiffs.

Supp. at

and,

brought by

Although Rule

45 does not define

it incorporates the statutory

in

the Rhode Island

22-10-12 (the

directly

or

definition of "lobbying" contained

Lobbying Act, R.I. Gen.

Act).

The Act

soliciting

promoting, opposing,

the term "lobbyist,"

others

defines

to

Laws

22-10-1 to

"lobbying"

act

for

the

amending, or influencing in

as

"acting

purpose

of

any manner the

passage

by the general assembly of any legislation or the action

on that

legislation by the governor."

requires

lobbyists for

Id.
___

private organizations

register with the Secretary of State, see id.

___ ___

6, and to wear identifying badges, see id.

___ ___

officials

22-10-2.

The Act

and interests

to

22-10-5 & 22-10-

22-10-8.

Government

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

included.

In

"representatives of

governmental

addition,

organizations were

floor of the House."

allowed

to be

public, lobbyists

both private

and

present on

the

Social Workers, 874 F. Supp. at 535.

______________

lobbyists typically occupied seats

ranged alongside the

of the

two outermost

on the periphery, in an

aisles of

the House

These

area

floor.

They

communicated with legislators in a variety of ways, such as

by whispered

conversations on the perimeter of

written

notes, physical

gestures, and

See id.
___ ___

This buzznacking took place even

the House floor,

other assorted

signals.

while the members were

debating floor amendments.

After the adoption of Rule

45, access to the

overhead

galleries remained unchanged.

House

excluded

private

But from that point forward,

lobbyists (easily

obligatory identification badges) from

House

was in

contrast,

session.

"agents

The

of

by their

the House floor while the

district

or employees

recognized

the

court

found

governmental

that,

in

bodies [were]

allowed to be present on the floor of the House while it [was] in

session,

as

Moreover,

[were]

the

members

"defendants

of

permitted

organizations to be present, to

to

provide information,

House

floor

during

notwithstanding

Id. at 537.
___

the

and to

House

the

general

agents

public."

of

governmental

speak, to respond to

questions,

confer with legislators

sessions

on

frequent

apparently unconditional

Id.
___

on the

occasions,"

text of

Rule 45.

The

plaintiffs struck back on April 27, 1993.

date, they filed

against

a civil action

Messrs.

Harwood

under 42 U.S.C.

and

Petteruti

(as

1983

the

On that

(1988)

individuals

purportedly responsible for enforcing the House's rules) charging

that

Rule

plaintiffs'

The

bench

45,

on

rights

its

face

under the

defendants denied

the

trial, the judge found

and

as

First and

allegations.

applied,

the

Fourteenth Amendments.

Following a

for the plaintiffs.

violated

four-day

See National
___ ________

Ass'n of Social Workers v.

_________________________

1994).

Harwood, 860
_______

The defendants then moved to

F. Supp.

943 (D.R.I.

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

general public on

expressly permitted

the presence of the

the perimeter of the House floor

by Rule 45

a presence

constituted "communicative and

expressive activity," id. at 540; that, due to the

___

communicative

possibilities inherent in physical presence, the

to the perimeter

of the House floor rendered

limited-purpose public forum, see

___

Rule

45's exclusion

lobbying

on

the

the floor itself a

id.; and that, therefore, both

___

of lobbyists

House floor

public's access

and its

constituted

proscription against

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

alternative

view, the

means of

rule did not

communication

"leave open

for the

ample

lobbyists," Social
______

Workers, 874 F. Supp. at 541, because "representatives elected to

_______
the

Rhode

Island

legislators . . .

House

of

Representatives

are

[who] lack legislative office quarters

State House or elsewhere, [and who] lack legislative

[who]

generally

have

legislative duties."
exclusion

of

the

part

full
Id.
___

time

jobs

in

addition

This meant, the court

lobbyists

denied

them

the

time

in the

staffs, and
to

their

reasoned, that
opportunity

to

communicate
presence.

with

hard-to-find

legislators

by

way

of

silent

See id.
___ ___

In condemning the ban on lobbying on the House floor during

House sessions,

the court took a

similar tack.

"with regard to

floor amendments, which

It

found that,

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

floor of the House, during the debate on the amendment."

the

Id.
___

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.

on

this finding,

the court

See id. at 535-37.

___ ___

concluded that "the

Predicated

application of

Rule 45 amounts to a

content based restriction on speech."

at

the

541.

government

lobbying

Because

interest" that

while

sparing

court

could

justified

governmental

discern

the

no

"compelling

exclusion of

lobbying,

Id.
___

it

private

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

therefore

in

legislative

declined

defendants

the

affairs.

plaintiffs'

to return to

See
___

id.
___

at

invitation

to

the pre-1993 practice

542.

"require

of admitting all

lobbyists, public and private, onto

the floor of the House

first-come,

Id.
___

first-served

declare "the

current interpretation

unconstitutional,"

"continuing

Id. at
___

basis."

and

to

its current

543.4

order

Instead,

he

House

practices with

to

regard to

on a

opted to

and enforcement of

the

He

Rule 45

refrain

from

this issue."

The House leadership responded on two levels:

the

____________________

4For

reasons

that are

plaintiffs never sued

not

the House

readily
as a body

apparent to

us,

the

and, therefore,

the

district court

plainly lacked jurisdiction to

The plaintiffs

now

purported

to do

so,

concede that,
its

order

insofar
cannot

enjoin the House.

as the
stand.

lower
Withal,

court

the

House

itself

passed

new

legislators and legislative

rule

barring

all

persons except

aides from the House

floor, and the

named defendants launched this appeal.

II.
II.

PROCEDURAL DEFAULT
PROCEDURAL DEFAULT

On appeal, the defendants, having engaged new

advance

point

that,

for

some

unfathomable

counsel,

reason,

they

neglected

to raise

defendants'

below:

the

actions anent

Rule

judicial interference

under the

absolute

immunity.

through

legislative

its

Attorney

General,

claim that, with

45, they

regard to the

are safeguarded

federal common law

The State

as

amicus

of

doctrine of

Rhode

curiae,

from

Island,

lends

its

support.

It

the

fore.

is very late in the day

Ordinarily,

an appellant

to bring a new argument to

who

has not

proffered a

particular claim or defense in the district court "may not unveil

it in

27, 30

the court of appeals."

(1st Cir. 1992).

United States v.
_____________

This

rule is deeply

Slade, 980 F.2d

_____

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

45

is

the court's underlying ruling

unconstitutional

jurisdiction
enforcement.

over

the

may

endure,

individuals

For reasons

as

charged

which more clearly

need not unsnarl this tangle.

the
with

that Rule
court
the

had

rule's

appear infra,
_____

we

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).

_____ ______

of the

raise-or-waive principle

Nor can this variant

be dismissed as

a pettifogging

technicality or a trap for the indolent; the rule is founded upon

important

considerations

practical wisdom.

F.2d 83,

of

fairness,

See, e.g., Sandstrom

___ ____ _________

87 (1st Cir. 1990);

850, 853 (1st

Cir. 1980).

judicial

economy,

and

v. Chemlawn Corp.,
______________

904

United States v. Miller,

_____________
______

Thus, parties must speak

the trial court, on pain that,

636 F.2d

clearly in

if they forget their lines,

will likely be bound forever to hold their peace.

This is as

they

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

little

minds,

see
___

Ralph

Waldo Emerson,

Essays:
First Series (1841),
_______________________

articulation

and in

of the raise-or-waive

is a matter of discretion.

reputedly the hobgoblin

"Self

the last

Reliance,"

of

in
__

analysis, this

principle, though important,

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,
_____

States v. Mercedes-Amparo,
______
_______________

428 U.S.

980 F.2d 17,

106,

121 (1976);

United
______

18-19 (1st Cir.

1992);

United States v. Krynicki, 689 F.2d 289, 291-92 (1st Cir. 1982).
______________
________

Thus,

this rule

exception.

be

(like

most

rules)

admits

"Occasional" is the key word.

few and far

between, an appellate

of

an

occasional

Since exceptions must

court's discretion should

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

explain

why

need not

those

rehearse the

criteria are

litany.

satisfied

here,

Instead, we

and,

in the

process, explicate the criteria themselves.

First,

raise an issue

this is not a

in a timely

case in which,

manner, a litigant has

court of appeals of useful factfinding.

number of findings as to

by neglecting to

deprived the

The court below made

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

that

the

of legislative immunity.

omitted issue

is purely

Thus, it can fairly be said

legal

in nature,

and lends

itself to satisfactory resolution

further

development of the facts.

for invoking

the exception.

See
___

on the existing record without

These attributes ease the way

La Guardia, 902 F.2d

__________

at 1013;

Krynicki, 689 F.2d at 291-92.

________

Second, appellants' belated proffer "raises an issue of

constitutional

magnitude,"

factor

notwithstanding the procedural default.

1013.

Third,

the

omitted

argument

that

favors

La Guardia,
__________

is

"highly

review

902 F.2d at

persuasive,"

Krynicki,
________

689 F.2d at 292, a circumstance that "often inclines a

court

entertain a

to

pivotal argument

10

for

the first

time on

appeal,"

La Guardia,
___________

declining to reach the

of justice,"

Krynicki,
________

special prejudice

902

F.2d

at

1013,

particularly

when

omitted argument threatens "a miscarriage

689 F.2d

or inequity

at 292.5

to the

defense is law-based, not fact-based.

Fourth,

plaintiffs.

we see

no

The

omitted

In addition, the

parties

have

joined issue; the claim of legislative immunity was made in

full

in

the

appellants'

plaintiffs responded to

opening

brief

in

it in extenso, and both

__ _______

this

court,

the

sides addressed

the point during oral argument.

definite

bearing

on

procedural default.

1554

decision

to

overlook

See United States v. Doe,

___ ______________
___

this

has a

type

878 F.2d

of

1546,

(1st Cir. 1989); cf. Singleton, 428 U.S. at 120 (discussing

___ _________

importance,

omitted

in determining

issue, of ensuring

whether to

that the

opportunity to present whatever

the

The absence of unfairness

court

of

inadvertent

argument had

appeals).

rather

than

reach the

merits

opposing party

of an

"ha[s] the

legal arguments he may have"

Fifth,

the

deliberate;

the regrettable effect of

omission seems

although

to

entirely

withholding the

blindsiding the district

____________________

5In this
the

context, "miscarriage of justice"

individualized

seasonably to raise

harm

that

occurs

a claim or defense

whenever

means more than

the

failure

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

frustration of some broadly important
Councilman,
__________

420

U.S.

"jurisdictional

and

important," courts
raised below);

738,
equity

must be

this reason, courts often

exception in

743

(1975)

issues

. .

may consider issues

Krynicki, 689
________

interest at stake

right.

cases that

F.2d at

so threatens the

See Schlesinger v.
___ ___________

(holding
.

[are]

that,

sufficiently

on appeal that

were not

292 (explaining

that the

"legitimate and

significant").

are more prone to make

involve a discernible

For

the infrequent

public interest,

and less prone to do so in disputes between private parties.

11

when

judge

and needlessly

prolonging the

litigation, it

yielded no

tactical advantage to the defendants.

Sixth

and perhaps most

implicates

matters

policies as

basic

independence

of

of great

Francisco,
_________

democratic

968 F.2d

court's

election to

because

"[i]ssues

considered sua

public

as federalism,

sensitive to such concerns.

salient

the

moment,

omitted issue

and touches

comity, and

upon

respect for

institutions.

Courts

must

850, 855

address

touching

(9th

Cir. 1992)

a matter

on

first

(explaining the

raised on

federalism and

comity

113 S. Ct.

appeal

may

when

institutional

be

1050 (1993).

We believe that this sensitivity is appropriately expressed

that,

be

See Stone v. City and County of San

___ _____
_______________________

sponte"), cert. denied,

_____ ______

frank recognition

the

interests

are

by a

at

stake,

the

case

discretion is

applied

(7th

for

the

favorable

strengthened, and

inflexibly.6

Cir. 1995)

exercise

waiver rules

See, e.g.,
___ ____

of

ought

Hoover v. Wagner,
______
______

(suggesting that

"when

involved, the ordinary doctrines of

court's

not to

be

47 F.3d 845

matters of

comity are

waiver give way"); Jusino v.

______

____________________

6Our belief
to a waiver of

that the defendants should not be strictly held

their absolute legislative immunity in

is fortified by

our recognition

that a primary

immunity is to prevent courts from intruding into

are

constitutionally

Overlooking

a waiver

interference

is

reserved
in order

analogous to

to

the

to further
our

settled

this case

purpose of

the

precincts that

legislative

branch.

this policy

of non-

rule that,

because

federal courts are courts of limited jurisdiction, the absence of

federal subject matter jurisdiction can be raised on appeal
if

the

issue

was

not

Policyholders Ins. Co. v.

_______________________
1258 (1st

raised

below.

See,
___

e.g.,
____

Nyacol Prods., Inc., 989

____________________

Cir. 1993), cert. denied,

_____ ______

114 S. Ct. 682

even

American
________

F.2d 1256,
(1994).

In

both situations, looking past the waiver has the

of

ensuring that federal courts

do not poach

salutary effect

on preserves that

the Constitution reserves to other forms of oversight.

12

Zayas, 875
_____

F.2d 986,

reluctance to

that

calls

immunity");

993

(1st Cir.

apply waiver rules

into

play

the

cf. Granberry
___ _________

1989) (discussing

concerning "a line

Commonwealth's

v. Greer,
_____

Eleventh

481 U.S.

129,

court's

of defense

Amendment

134 (1987)

(explaining

claim

in

that, when a

federal

state fails

habeas proceeding,

nonetheless should consider "whether

federalism

will

be

to raise

better

the

a nonexhaustion

federal

tribunal

the interests of comity and

served

by

requiring

public concern

confronts

[exhaustion]").

Here, an important

us.

It is presented belatedly, but in a posture that permits its

proper

resolution on

prejudice

may

issue of

the

existing record

to the opposing parties.

well result in an

and works

no unfair

Failure to address the issue

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

legislative

the exercise

immunity argument.7

of our

See

discretion, to

La Guardia,

weigh the

902 F.2d

at

___

__________

____________________

7The dissent's principal response to this reason seems to be

that

overlooking

the

legislators to raise
Post at 39-40.
____

waiver

"eliminates

the immunity

any

defense in

This reasoning strikes us as

incentive"
a timely

for

manner.

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
commend it as a
Krynicki,
________

be enforced.

matter of case

That view

has much

to

management, but, as La Guardia,

___________

Mercedes-Amparo, Hoover,
_______________ ______

and Stone illustrate,

_____

it is

simply not the law.

In

the

capabilities
deliberate

second

of appellate
bypass in

defense is the product

appearance

place,

of

this

the

courts.
case

argument
There
the

Attorney

13

is

no

hint

belated tender

of a change in counsel

Rhode Island's

underestimates

the
of

of

the

(coupled with the

General

as an

amicus)

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.
III.

THE MERITS OF THE OMITTED DEFENSE

THE MERITS OF THE OMITTED DEFENSE

We bifurcate

our analysis of

defense,

first discussing

doctrine

and

then

the general

addressing

the

the legislative immunity

nature and scope

specific

contours

appellants' claim.

A.
A.

Legislative Immunity: In General.

Legislative Immunity: In General.
_________________________________

of the

of

the

The

Speech or

Speech or Debate in

Debate

Clause commands

Congress.

Agency,
______

The Clause is,

U.S.

legislators and

391,

U.S. Const. art. I,

by its terms, limited to members of

See Lake County Estates

___ ____________________

440

any

either House, [Senators and Representatives]

shall not be questioned in any other place."

6, cl. 1.

that "for

404

v. Tahoe Regional Planning

________________________

(1979).

their surrogates enjoy a

Nevertheless,

state

parallel immunity from

liability for their legislative acts.

While this immunity is derived from federal common law,

it is

similar in

federal

Justices

scope and

object to

the immunity

legislators under the Speech or Debate Clause.

initially recognized

____________________

state legislative

enjoyed by

When the

immunity

as a

rather

than a change in

costs

and,

that

tactics or a

if sandbagging

this court

would see it

reassessment of political

were to occur,
for what

we have

is was,

confidence

and decline to

exercise discretion in favor of the sandbagger.

Finally,
our

if we assume that the dissent is correct and that

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).

___ ______
_________

Court

acknowledged that

the immunities

enjoyed by

state legislators are essentially coterminous.

Later, the

federal and

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

United States
_____________

341 U.S.

v. Johnson, 383
_______

at 372.

Legislative

the English

Branch

The Clause

will

be

Bill of

Rights of

U.S. 169, 177-78

is modeled

able

to

1689.8

See
___

(1966); Tenney,
______

to

ensure that

perform

without

the

undue

interference the whole of the legislative function ceded to it by

the Framers.

See Eastland v.
___ ________

421 U.S.

491, 502 (1975).

shelter

individual

hindrance

[them]

of civil

from suits

United States Serviceman's Fund,

________________________________

To that end, the

legislators

from

litigation, see id.

___ ___

for

Clause operates to

the

distractions

at 503,

either prospective

and

and "immunizes

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:

and

Debates

or

Proceedings

in

"That the Freedom of Speech,

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,

___ ______
_____________

U.S. 606, 625

broadly.

(1972), the

penumbra of the

This breadth of

from the Supreme Court's

application, which draws

more

its essence

espousal of a "practical rather

strictly literal reading" of

443 U.S.

Clause sprawls

408

than a

the Clause, Hutchinson v. Proxmire,

__________
________

111, 124 (1979), is made manifest in two ways.

For one

thing,

the Clause's

prophylaxis extends

done in a session of the House by one

to the business before it."

204 (1880).

debate

So

per

information

306,

312

but

also

of its members in relation

protects not only

voting,

see
___

to other legislators, see Doe

___ ___

(1973),

act "generally

Kilbourn v. Thompson, 103

________
________

read, the Clause

se,

to any

participation

in

the

id.,
___

U.S. 168,

speech and

circulation

of

v. McMillan, 412 U.S.

________

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

performed

by non-legislators.

(refusing

to

draw

also extends

See
___

distinction

congressional

subcommittee and

the

actions

latter's

were

to

legislative

Eastland, 421
________

between

the

U.S. at

members

the subcommittee's

within

the

sphere

acts

507

of

counsel when

of

legitimate

legislative activity); Gravel, 408 U.S. at 618 (holding that "the

______

Speech or Debate Clause applies not only to a Member

his aides

insofar

as

the conduct

16

of

the latter

but also to

would

be

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

Gravel, 408 U.S. at 625.

______

generously,

Eastland, 421
________

its

are limitless.

They are

Although the Court has

protections

U.S. at 501-02.

must

match

When all

its

not.

See
___

read the Clause

purposes.

is said and

See
___

done, the

absolute immunity conferred by the Clause is not afforded "simply

for the personal or

to

private benefit of Members of

protect the integrity of the

the independence

of individual

Congress, but

legislative process by insuring

legislators."

United States v.
______________

Brewster, 408 U.S. 501, 507 (1972).

________

The key limitation

Congress

and

to congressional

which applies both to members

staffers

is

protects "only purely legislative activities."

legislator (or

his surrogate)

that

of

the Clause

Id. at 512.
___

undertakes actions that

If a

are only

"casually or incidentally related to legislative affairs," id. at

___

528, or

Eastland,
________

inheres.

which fall outside the

421

U.S.

at

503

"legitimate legislative sphere,"

(citation

omitted),

no

immunity

By the same token, the mere fact that a legislator or a

legislative

aide performs an

not automatically

Clause.

act in his

confer protection

official capacity does

under the Speech

See Gravel, 408 U.S. at 625.

___ ______

or Debate

For example, when a member

of Congress disseminates press releases to the public, the Clause

17

does not attach

because such documents

informing those outside the

are "primarily means

legislative forum."

of

Hutchinson, 443
__________

U.S.

at 133.

So, too, activities that

legislative in nature

and, hence,

Brewster,
________

familiar

fare

constituents,

agencies,

do not come within the legislative sphere,

do not implicate the

408 U.S.

at

as

the

are more political than

512.

Speech or Debate Clause.

These

"legitimate

making

[and] assistance

of

in

activities

`errands'

appointments

See
___

include

such

performed

for

with

securing Government

Government

contracts."

Id.
___

B.
B.

We

Legislative Immunity: In Particular.

Legislative Immunity: In Particular.
____________________________________

now turn

that, under federal

the

shoals of

to

the merits

common law, the

absolute

of appellants'

assertion

instant action founders

legislative immunity.

The

on

plaintiffs

brought

suit, as

we have

actions invoking

customarily

said,

federal civil

"equate[]

under 42

U.S.C.

rights statutes,

the legislative

1983.

In

federal courts

immunity to

which state

legislators are entitled . . . to that accorded Congressmen under

the Constitution."

Consumers Union,
_______________

against

this backdrop,

appeals

historically

unsurprising that

have relied

precedents

to

legislative

immunity under the

Schlitz
_______

define

it is

the

446 U.S. at

on

Speech

doctrinal

v. Commonwealth of Va.,
____________________

733.

the courts

or Debate

boundaries

federal common law.

854 F.2d

Viewed

43, 45-46

of

of

Clause

state

See, e.g.,
___ ____

(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

whether

heart

appellants' acts

of

our inquiry

in respect

parcel of the legislative process."

lies

to Rule

the

question

45 are

of

"part and

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

and enforce Rule 45.

Where, as here, a legislative body adopts a

rule,

26-28,

or less than to interpret

not invidiously discriminatory on

that

bears

upon

its

conduct

its face, see infra pp.

___ _____

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

analysis centers on function,

action

by

legislative

one
in

or

more

nature.

cases,

the

legislative

immunity

attempting to ascertain whether an

legislators
See,
___

e.g.,
____

is

administrative

or

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

business.

as a

or

the management

of

its own

Hence, we are not concerned with whether the adoption

of the rule comprises

clear

whole for

a legislative act

that

is transparently

but, rather, with whether that act is more than "casually

incidentally

related"

to

core

Brewster, 408 U.S. at 528.

________

19

legislative

functions.

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

Debate Clause),

cert.
_____

denied, 423
______

Davids
______

v. Akers, 549 F.2d

_____

action

challenging

brought

by

members

against the Speaker);

authorizing the

of

rules

the Arizona

cf. R.I.
___

House to

U.S. 1051

120, 123 (9th

internal

immune under

for

Speech or

(1976); see
___

also
____

Cir. 1977) (dismissing

committee

House

of

Const. art. VI,

"determine its rules

assignments

Representatives

(expressly

of proceeding").

The short of

like

are

it is

that the doctrine

the Speech or Debate Clause,

"an

integral part

processes

by which

proceedings

rejection

matters

the

proposed

to

immunity,

attaches when solons' actions

deliberative and

Members participate

with respect

of

of

of legislative

in committee

the consideration

legislation

communicative

or with

[committed to their jurisdiction]."

and House

and passage

respect

to

or

other

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.

aide's conduct would

The

case law

teaches that,

as long

as an

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

authority

an express delegation

of

to him as part of the House's staff support apparatus,

under the auspices of

whole.

by virtue of

the Speaker and the legislative

body as a

No more is exigible.

20

district

court granted

relief because

fatally deficient in three particulars:

it found

Rule 45

to be

(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

from

the

the First

perimeter

Amendment by banishing

of

the

House;

interpreted, applied, and enforced

and

(3)

all lobbyists

the

appellants

Rule 45 to allow governmental

lobbyists onto the House floor while denying comparable access to

private

narrower

lobbyists.

Assuming

perspective is

for argument's

relevant, the

appellants are entitled to

sake

question of

that

whether the

legislative immunity would be reduced

to a question of whether the acts which the district court

problematic

sphere."

fell within

this

or without "the

found

legitimate legislative

Eastland, 421 U.S. at 503.

________

The

dispatched.

first

area

of

inquiry

can

celeritously

be

We think it is beyond serious dispute that enforcing

a duly enacted

legislative rule which prohibits lobbying

House floor during House sessions

sphere.

which

Such

the

functions, e.g., debating

____

very conditions

is

the acts of House

it

its

affects the

most characteristic

and voting.

A rule

under which legislators engage

indubitably part and

enforcing

is well within the legislative

a restriction necessarily

House conducts

are

interference by the

parcel of the

fully

legislative

the

in formal debate

legislative process, and

members) in

protected against

doctrine of legislative immunity.

21

manner in

that colors

officials (whether or not elected

therefore

on the

judicial

See id.;
___ ___

see also Doe, 412 U.S. at 312-13; Tenney, 341 U.S. at 378-79.
___ ____ ___
______

At

first blush, the next area of inquiry

exclusion of all

within

the legislative

arrangements for

the legislative

House

lobbyists from

sessions.

sphere

the perimeter of

appears more

non-legislators arguably are

process than

As

demonstrates, however,

the regulation of

the trial

testimony

when lobbyists

whether the

the House

murky.

is

Seating

less integral

to

lobbying during

in this

are present on

case

amply

the House

floor (even on the perimeter), they often become embroiled in the

legislative

initiated

stoic

process either through self-initiated or legislator-

contacts.

And, even if lobbyists are able to maintain

silence on the perimeter, their

legislative

environment.11

We

mere presence affects the

conclude,

therefore,

that

regulation of admission to the House floor comprises "an integral

part

of the

Members

the

deliberative and

participate in . .

consideration

legislation."

and

communicative processes

. House proceedings

passage

Gravel, 408
______

U.S.

or

at

rejection

625.

by which

with respect to

of

proposed

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

their First Amendment claim,

the opportunity to
floor

so

presence.
a

that

that they should at least

sit silently

they

may

on the perimeter

communicate

through

be given

of the
their

House

physical

The district court accepted this argument, and made it

cornerstone of

the

ensuing First

Social Workers, 874 F. Supp. at 539-41.

______________
plaintiffs attach to admittance
own

the context of

recognition

that,

by

Amendment

analysis.

See
___

The importance that the

to the perimeter indicates their

mere

physical

presence,

they

can

influence ongoing legislative business.

22

as its castle.

In Periodical Correspondents', the court

__________________________

reached

similar conclusion.

There,

the Periodical

Association, which

issues credentials to the

Congress,

accreditation

denied

Consumer Reports, on

organization.

House

and

exclusion

particular

Consumers Union

Senate, among

arrangements

other

defendants,

rationale,

for seating

House

explaining

consideration

alleging that

immune under the Speech

In

the

a later case,

that the

of

to an advocacy

or Debate Clause

press in

the

House and

legislative machinery."

the court

seating

proposed

the

The court held that the

Senate galleries were "integral" to "the

at 1350.

periodical,

sued the sergeants-at-arms of the

violated the First Amendment.

515 F.2d

press galleries of

the ground that it had ties

sergeants-at-arms were

because

to

Correspondents'

elaborated its

"immediately concerned

legislation"

because

the

arrangements "were

intended to

press members' use of

Walker
______

v.

shield members of

their House access to

Jones, 733
_____

F.2d

923,

930

Congress from

lobby legislators."

(D.C. Cir.)

(discussing

Periodical Correspondents'), cert. denied, 469 U.S. 1036 (1984).

__________________________
_____ ______

Like the

seating arrangements at

Correspondents', the
_______________

seating arrangements

issue in

dictated

Periodical
__________

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

Rhode

Island

House is

not advantage the present plaintiffs;

seeking to

regulate

access to

floor, rather than to galleries located above the floor.

the

its own

23

We come now to the third area of inquiry, involving the

significance,

appellants

if

any,

of

interpreted and

the

enforced

allowed

lobbying on

the House

private,

lobbyists.

This

lobbyists, at

plaintiffs'

Rule 45

floor by

as-applied

its most primitive level,

claim

in a

that

manner that

governmental,

exclusion

the

of

but not

private

involves regulating the

legislative environment

the perimeter of

by controlling access to

the House

floor.

Because

the seating on

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

plaintiffs

be

sure, both

protest

that

our

the

dissenting

House

colleague and

treats

private

the

lobbyists

differently (and less hospitably) than public lobbyists, and that

this differential

charges

lack

treatment offends the First

sufficient

force

to

strip away

Amendment.

the

These

shield

of

absolute legislative immunity.

We

rebuts the

believe that

the

body of

our opinion

dissent's views, and we decline

adequately

to repastinate well-

ploughed ground.

seriously

We do add, however, our belief that the dissent

misconstrues

jurisprudence beyond all

the

Court's

recognition.

Speech

or

Debate

Clause

To the extent that Powell

______

can be read to hold that legislative immunity does not extend

legislative

employees, the

Court in

confined it to its unique facts.

later cases

See, e.g., Gravel,

___ ____ ______

to

has routinely

408 U.S. at

621 (specifically identifying Kilbourn, Powell, and Dombrowski v.

________ ______
__________

24

Eastland, 387 U.S.

________

cases

adopted

82 (1967),

the

simple

and stating that

proposition

that

unavailable to congressional or committee

were not

Representatives or

"reflect[s]

a decidedly

Clause

so as

to privilege

beyond

that

essential

legislative

speech

voting and committee

reason why judicial

any

less

decision

pernicious

not to

to

foreclose

or debate

and

immunity

extending

executive

associated

control of legislative

extend

law

the

unconstitutional conduct

control

matters such

reports and proceedings."

than

was

Rather, the case

view towards

illegal or

these

employees because they

Senators").

jaundiced

none "of

Id.
___

We

legislative immunity

Moreover,

to

as

see no

speech or debate

executive control.

of

is

the

congressional

employees in cases such as Powell turned on whether "relief could

______

be afforded without proof of a legislative act

purposes underlying such an

or the motives or

act," thereby avoiding impermissible

encroachment on "legislative independence."

Id. at 620.
___

that standard, judicial review of House Rule 45

course

of

the

proceedings

below

graphically

Under

as the tortured

illustrates

unquestionably required a substantial judicial intrusion into the

legislative domain.

out,

that the

Finally, we recognize, as the dissent points

Court

has remarked

immunity for the exercise

authority outside

an exception

to legislative

by legislators of punitive enforcement

________

the ambit

of purely

See Consumers Union, 446 U.S. at

___ ________________

736.

legislative proceedings.

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

were the rule, legislative

within that

exception.

immunity would be little more

If that

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

_____

First Amendment

that "once it is alleged

rights may be infringed

that

by congressional action

the Judiciary may intervene to protect [First Amendment] rights."

421

U.S. at 509.

The Court flatly

warning that the effort

the

rejected this asseveration,

to carve out such an

exception "ignores

absolute nature of the speech or debate protection and [the]

cases which have broadly construed that protection."

10.

The Court added:

Id. at 509___

"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,

Amendment] balancing plays no part."

Circuit put matters

Id. at 510 n.16.

___

even more bluntly, writing that

[First

The Ninth

"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'

treatment

of public

Protection

Clause.

legislative immunity.

and

also

assert

that

private lobbyists

the

differential

violates the

Equal

This assertion does not derail the engine of

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,

unprotected,

might violate a

See Doe, 412 U.S. at 312-13;

___ ___

91.

Thus,

Debate

in Doe, the
___

Clause

legislative sphere,

other

than

see also Colon Berrios, 716 F.2d at

___ ____ _____________

legislators'

even though

legislative

unconstitutional."

plaintiff's constitutional rights.

Supreme Court ruled

shields

412

quotation marks omitted).

if

actions

[the] conduct, if

contexts,

U.S. at

that the Speech

would

in

312-13 (internal

"within

or

the

performed in

itself

be

citation and

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.

typical

example, they

raise

the specter

of

To cite

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

parade

is

recognized

plaintiffs

on

the

that

legislative

wrong

there may

sphere,

have the

right

to

route.

The

Court

be

that

is

some

so

fundamental constitutional protections

of legislative

immunity would

See, e.g., Kilbourn, 103

___ ____ ________

march, but

has

conduct, even

flagrantly

explicitly

within

the

violative

of

that traditional

not deter judicial

U.S. at 204 (leaving open

their

notions

intervention.

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

take part in the act may be held

who

legally responsible"); see also

___ ____

Tenney, 341 U.S. at 379 (Black, J., concurring) (recognizing that

______

27

the

which

Court's jurisprudence

legislator's

"indicates that there

conduct

so far

exceeds

is a

the

point at

bounds

of

legislative power that he may be held personally liable in a suit

brought

limits

under the Civil Rights Act").

of the doctrine

clear that

Whatever may be the outer

of legislative immunity,

the instant case

is not so

however, it is

extreme as to

cross (or

even closely approach) the border.

Taking the

district court's

value, Rule 45, as applied, may

policy

and as

a matter of

invidiously discriminatory.

between private and public

factors

that

legislative

that,

bear

some
____

purposes.

in its view, the

factual findings

at face

arguably be wrong as a matter of

constitutional law

but

it is not

To the contrary, the differentiation

lobbyists appears to be based

rational

First, the

relationship

House

exclusion of private

to

on two

legitimate

leadership explained

lobbyists from the

floor

was

legislative

useful

tool

to

independence

bolster

and

public

integrity.12

confidence

in

Second,

the

____________________

12In

debate over

a motion

to

reconsider Rule

45, the

Majority Leader, Representative George Caruolo, stated:

This

isn't trying

to retard

pursuing their vocation

lobbyists from

. . .

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.
be

in any

way

registered to

affected by

It should not
people who

are

advocate particular positions,

whether they are paid or unpaid . . . .

Later,
that

Representative Caruolo explained why he thought

governmental lobbyists

on the

floor of

the House

trigger the same public perceptions as private lobbyists:

28

do not

defendants consistently

lobbyists

act in

have taken the position

effect

as support

giving them neutral statistical and

to pending

legislation.

staff

that government

for legislators

by

factual information relevant

These justifications

for the continued

presence of government lobbyists, found by the

district court to

be authentic (if asthenic),

see Social Workers, 874 F.

___ ______________

541-42, afford a sufficiently rational basis

this case

does not

give rise

to the

Supp. at

to persuade us that

question reserved

by the

Kilbourn Court.13
________

Thus,

enforced

we

conclude

Rule 45's prohibitions

spared governmental

the

that,

legislative

insofar as

against private

lobbyists from exclusion,

sphere

and

the

are

appellants

lobbyists, but

they acted within

protected

from

judicial

____________________

[A]ny

general

officer

employee

who

is

building

[the

State

policy

here,

any
working

House]

they're paid

are the government.

. .

or

on

in

this

government

by the government.

We

That's the distinction .

Let's not have private groups

trying to

government

out here

manipulate this floor while we are

taking votes.

In

the

same

coordinator,

vein,

Edward

testified

Clement,

that

he

did

the

House's

legislative

not

consider

government

lobbyists to be lobbyists per se, but, rather, "people called [to

the floor] by members

of the House for

Speaker Harwood echoed the

spokesman

for the

informational purposes."

same themes, describing the principal

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

determination that these reasons

by the

lower court's

were insufficient to warrant an

infringement on the First

Amendment rights of private lobbyists.

See
___

F. Supp.

Social Workers,
______________

testing, appropriate
place

874

in the First

at

541-42.

Such

Amendment context, is

in the context of legislative immunity.

rigorous

out of

See Eastland, 421

___ ________

U.S. at 509 n.16.

29

interference by the doctrine of absolute legislative immunity.

IV.
IV.

CONCLUSION
CONCLUSION

We

different

Within

need go

no further.14

institutions of

its

own

domain,

In our

republican system,

government occupy

different spheres.

the

legislative

branch

of

state

government is entitled to a reasonable measure of independence in

conducting its

internal affairs.

regulation

the atmosphere

of

legislative activities

and

and,

the like

509.

is part and

Because

rule, a

which

parcel of

core

the legislative process,

See Eastland, 421

___ ________

and the defendants'

interpreting

and

enforcing it,

fit

generality,

the

doctrine

absolute

of

its

passing legislation,

a judicial veto.

Rule 45,

legislature's

it conducts

debating, voting,

hence, not subject to

U.S. at

in

As a

within the

actions in

sweep

legislative

of this

immunity

requires that the federal courts refuse to entertain the suit.

Reversed.
Reversed.
________

No costs.
No costs.
________

Appendix follows; Dissenting opinion follows appendix

Appendix follows; Dissenting opinion follows appendix

____________________

14We

do not reach and, accordingly,

the soundness
and rulings.

of the

express no opinion on,

district court's First

Amendment analyses

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

the Attorney General, the
the

state

Senate,
States

controller,

judges and
court and

governors,
members

and members

of

the

the United

the state

courts, ex-

ex-Speakers

of

the

representatives

General Treasurer,

ex-judges of
of

of

of State,

the

House,

General

of the

ex-

Assembly,

legislative council,

legislative staff, director of the department

of

administration,

assistant
clerks

the

in charge

of the

superintendent

of

budget
law

officer,

revision,

and

Senate and

House committees,

of

buildings,

public

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.
discretion

of the

public may

be admitted to

provided,
not stay

Speaker,

At the

members of
the House

the

floor,

however, that all such persons may

in the

House

chamber unless

they

remain seated along the sides of the chamber,

refrain from conversation,

and maintain

decorum of

the House.

All persons

unable

access

House

to

the

the

who are

galleries

by

reason of physical handicap shall be entitled

to admission to the House floor.

(b)

Lobbyists

including

legislators

who are

entitled to

admission

former

state

lobbyists shall

not be

to the

House during the session

entitled
House

to admission

during

the

practice

of

thereof.
to

the

No person

the floor

session

either directly or

floor of

of the

thereof,

shall

indirectly engage in

lobbying

as defined

in

the
Rhode

Island General Laws (22-10-2).

(c) Admission to the

to

House

accompanied

members
by a

House Lounge is limited

and

persons

House member

31

invited and
who will

be

responsible
Such
the

for

them while

persons when
House

member

no longer
with

shall leave the

lounge.

be admitted to

the House

House session.

whom
No

in

the lounge.

accompanied by
they entered,
lobbyists shall

lounge during

the

32

LYNCH,
LYNCH,

Circuit Judge,
dissenting.
Circuit Judge,
dissenting.
____________________________

government chooses to

political

process

citizens, core

heart of

listen only

excluding

voices

voice in

the

private

First Amendment values are violated.

At the

is not the

the

the

of

this case

by

to its own

When

ability of the

Rhode Island

House

to

promulgate

business,

but

contrary to

speakers

the

the

unless

rules

Rule adopted

they

could have

Chamber to all

may

floor

lobbyists

conduct

actual

by

represent

the

viewpoint.

from doing the same.

own

directly

of

excluding

and

While, in

thus

my view,

floor of

its

its work, defendants

government lobbyists to

private

its

government

legitimately closed the

prohibiting

of

practice,

the House,

who sought to influence

not permit

while

the

defendants'

express the government's own

the House

for

lobby on

citizens

the House

and

private

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,

would

not

take

the

extraordinary

step

of

affording

defendants

absolute

legislative immunity, thus preventing the court from reaching

the First Amendment issue.

of federalism and comity,

naming

This

those values

case

does

not

The

majority does so in the name

important values to be sure.

may obscure

implicate

-3333

the issues

But

involved here.

traditional

issues

of

"federalism"

at

congressional

all,

such

Inc. v. Thornton,
____
________

on

enumerated

thorny issues

powers

between the

the

governments, see U.S. Term Limits,

___ _________________

115 S. Ct. 1842 (1995).

raises

of

limits

relative allocation of legislative power

between state and federal

and

the

powers, see United States v. Lopez, 115 S. Ct.

___ _____________
_____

1624 (1995), or the

them,

as

of

people

the

Rather, this case

constitutional allocation

and those

appropriate role

elected to

of

federal

of

represent

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

professional

floor

by

anyone,

private

citizen15

lobbyist, while the House is in session.

that Rule which reflects the decision of the House as

running of

its affairs.

Permitting

or

It is

to the

government lobbyists to

lobby on the floor of the House violates the House Rule.

The defendants

practices.

contrary

claimed that

such

were not

their

But the district court, after trial, found to the

and

the defendants

factual determination.

The

have

not

record amply

appealed from

that

demonstrates that

government lobbyists were regularly plying their trade on the

____________________

15.

Under the terms of Rule 45, certain government officials

including
Attorney

the

Governor, the

General

have

Secretary

access

to

the

of

State, and

floor.

The

the
Rule

nonetheless prohibits anyone from lobbying.

-3434

floor after adoption of the House

them out.

And, as

the

Rule which ostensibly kept

district court

found,

defendants

"flagrantly permitted" such activities.

The Rhode Island

House presents a

factual setting

perhaps unique in this country.

bodies,

including the

United

Unlike

States

many

legislative

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

Once

the

session

concluded.

or four afternoons and evenings

starts,

it

rarely breaks

desks other

Chamber.

direct

than their

Often there is no

communication

disturbing

until

it

is

Legislators typically arrive just in time for the

session and leave immediately on its conclusion.

have no

a week.

legislators

with

in

desks on the

other place

the

their

citizens where they live or work.

but

legislators,

capacities

Legislators

floor of

the

the floor for

apart

as

from

private

Amendments

first

public

to bills

time on the floor.

are often introduced

They

for the

are often unavailable to the

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

amendment on the

same day, and sometimes

the amendment being introduced.

-3535

on such an

within minutes, of

Around

Chamber

chairs

are approximately

have

lobbyists

filled

the perimeter

been filled

since

Rule 45

by members

of

of

the floor

eighteen chairs.

on

was

daily basis

enacted.

the public.

The

of the

Some

by

House

of those

government

remainder are

Private lobbyists

are

relegated to balcony seating.

Government officials sitting in the perimeter seats

have

and

use

legislators and in

decided advantage

in

communicating

with

collecting and disseminating information.

Individual legislators frequently walk over to the

to speak with the government lobbyists.

perimeter

These lobbyists send

notes to legislators indicating that they would like to speak

and

they

get the

signalling them.

attention

People seated

floor receive more

amendments, which

are

sitting on the floor

along the perimeter

distributed to

pertinent information,

floor

only

Thus, government lobbyists who are

amendments and

communicate their views,

to the legislators.

including

It is virtually

for those who are not permitted onto the floor to

learn the exact language of an offered amendment because

text of

Chamber.

by

of the

the legislators

can see copies of floor

opportunity to

impossible

individual legislators

information than others concerning

when they are introduced.

have the

of

floor amendments is

not distributed outside

the

of the

-3636

Government

lobbyists

their

positions both from

floor

itself.

officials

have

They have

supported

have

actively

the perimeter seats

done so on

and

which

lobbied

for

and from the

bills which government

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

office,

legislature.

which supported such

talked

to

Island

State Right

the

lobbyist

relegated to the balcony.

Attorney

of

reinstate the

Rhode

Island

Rhode

which opposed

Similarly, the

introduced

bill

to

the bill, speaking with legislators.

Private group lobbyists opposed

the

from the

death penalty and he and his staff were on the

floor during debates on

from

the floor and

Committee, Inc.,

such funding, was

General

of the Governor's

funding, sat on

legislators while

to Life

Agents

Rhode

Island

to the bill, including those

Affiliate

Liberties Union, could only watch

of

the

American

from the balcony and

Civil

were

precluded from the floor and from lobbying.

The same duality

bills

on

welfare reform.

Department of

on

an

characterized the influencing

Government

lobbyists from

Human Services were present

amendment

which

would

Assistance

program

cut from

Department

favored elimination

restore

the

of

of

the

for floor debates

Governor's

General

budget.

the program.

Public

The

Lobbyists

from the National Association of Social Workers (NASW), which

-3737

opposed eliminating the program, were excluded.

break in

the

session between

the

introduced and it was voted upon.

time the

There was no

amendment

Similarly, in

was

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

the NASW's

received

position by

the

officials were

while ACLU

same

waving hands.

treatment.

on the

Prison-related bills

Department

floor with legislators

lobbyists who opposed

watched ineffectively from the

to convey

of

Corrections

during debate

the Department's

balcony.

position

There were numerous

other

instances

Police, the

and

where

the

Governor's

Department of Economic Development,

Insurance

Department,

the Fire

Treasurer's Office and the Department

lobbyists

Office,

spoke

directly

with

Marshal,

the

State

the Banking

the

General

of Business Regulation

legislators

on

the

floor

to

government

state

government

regarding pending legislation.16

Nor

were

the

to

advantages

lobbyists

limited

agencies.

The lobbyist for

the floor of the House

legislators.

lobbyists

given

from

the Mayor of

Providence was on

every day, frequently conversing with

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

interests as well.
pay

for

to advance their personal

For example, during debates

court clerks,

two court

clerks

on incentive

sat in

the aisle

seats.

-3838

as a proposed

gun court,

the Providence

water supply,

and

funding for the city.

Lobbying

place

among

by

the seats

government

of

lobbyists at

the legislators,

times

even

took

with the

knowledge of the Speaker.

For example, when the House was in

session, the Providence lobbyist

was on a cellular telephone

and walked

of the legislators'

passing

listened

in between

the rows

the telephone to

and spoke

eventually passed

certain members of

into the

to the

Only

objection

the Providence

aisles.

The

Speaker, who also

and chuckled.

did

telephone.

when a

member of

lobbyist

the House, who

telephone was

listened, spoke

the House

move

seats,

raised an

to the

outer

But she was not asked to leave the floor and was not

asked to refrain from speaking to the legislators.

Immunity
________

respectfully disagree

with the

decision of

my

very able colleagues to

to both

but

of the defendants.

even if

legislative

judicial

it had

immunity

does

practices.

constitute the

Not only was the defense waived,

been properly

determination

defendants'

have

afford absolute legislative immunity

not,

of

the

The

raised, the

in my

view,

challenged

triggered

legislative immunity bar.

foreclose

constitutionality

kind of "purely legislative

traditionally

doctrine of

the

practices

of

the

do

not

activities" that

protections

Raising that bar in this

-3939

of

the

case is

not

necessary

doctrine was

to vindicate

intended

the

vital

to safeguard,

interests that

and

indeed

the

undercuts

those interests.

This case does not

circumstances

defendants'

arguments

legislative

were

Eastland v.
________

510

that would

even permit

immunity

not raised

in

consideration

("[T]he Speech

of the

arguments, because

the

district

court.

United States Servicemen's Fund, 421

________________________________

n.17 (1975)

been read so

present the kind of exceptional

or Debate Clause

broadly that legislators

those

Cf.
___

U.S. 491,

has never

are 'absolved of

the

responsibility of

omitted));

(1969).

legal

filing a

Powell
______

Here,

v.

motion

McCormack,
_________

to dismiss.'"

395 U.S.

the immunity doctrine

(citation

486,

-- hardly

505

n.25

an obscure

concept -- was never raised as a defense to liability,

even when the distinguished

trial court was solicitous about

minimizing

of

the

functioning of

intrusion

the

litigation

the state legislature.

into

the

Defendant Harwood is

himself an attorney and both defendants were ably represented

in

the district

defendants to

court.

I see

their waivers.

U.S. 106, 121 (1976)

no reason

See Singleton
___ _________

not to

hold the

v. Wulff,
_____

(reversing court of appeals in

428

a civil

case for deciding issues not argued in the district court).

In

reaching the immunity

issue, the majority sets

up

virtually

Legislators

no-lose

proposition

for

legislators.

are certainly cognizant of the public perception

-4040

that

raising an immunity defense is tantamount to a claim of

being above

the Constitution.

Thus, raising

a defense

of

legislative

immunity

at the

without its political costs.

permits

the

eliminates

were

to

defense to

produce

the

raised

an unfavorable

failure

inadvertent.

of

after trial,
_____

it sooner.

outcome,

assert immunity

to raise

litigation is

not

The majority's approach, which

any incentive to raise

defendant could simply

that

be

outset

the

virtually

If the trial

the

legislator-

on appeal,

defense

earlier

claiming

had been

Because there rarely will be direct evidence to

counter such a claim of inadvertence, and because the defense

of absolute

based,

legislative immunity will always

potentially

magnitude,

court

approach would almost

dispositive

of

appeals

question of

applying

present a law-

constitutional

the

majority's

inevitably consider the defense,

though raised for the first time on appeal.

even

Moreover, to the extent

underlying

legislative

litigation

against legislators, that rationale is undermined

where

(as here)

entire trial and

purpose

of the

immunity

that one of the rationales

is

to

the legislator-defendant

raises the

protection

prevent

vexatious

goes through

defense only on

appeal.

afforded legislators

is not

the

"The

to

forestall judicial review of legislative action but to insure

that

legislators are not distracted from

performance of

their legislative tasks by

-41-41-

or hindered in the

being called into

court to defend

Denials

their actions."

of legislative

Powell, 395
______

immunity are

U.S. at

505.

immediately appealable

because the immunity is not simply a defense to liability but

is also an immunity from suit.

500, 508

that

(1979).

Appellate

interest where

raise the immunity

greater systemic

Helstoski v. Meanor, 442 U.S.

_________
______

courts are unable

defendants

defense.

interest in

See
___

wait until

id.
___

There

to vindicate

after trial

thus may be

ensuring that the

to

interest is

raised early.

Much

remedied

here.

defense of

question

have

of

what

the

Because

immunity

the

defendants

immunity, the action

was ever

already

constitutional

put to the

testified.

question

inconvenience upon the

protects

never asserted

was fully tried

district court.

Deciding

entails

defendants.

defendants' waiver in order to

no

the

be

before the

Legislators

merits

additional

The

cannot

of

burden

the

or

need to ignore

the

reach the immunity issue

is,

as a result, greatly reduced.17

____________________

17.

Even if one could

not

reach the immunity issue absent a showing of plain error

by the

district court.

overlook defendants' waiver, we could

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.

e.g., Consolo v.
____ _______

791,

793

(1st Cir.

objection lodged
v.

Kendrick, 944
________

court's

See,
___
1995)

(jury instructions

subject only to plain

F.2d 949,

failure to grant

George, 58
______

953 (1st

to

F.3d

which no

error review); Lewis

_____
Cir. 1991)

(district

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).

-42-42-

Even overlooking the defendants' waiver, however, I

believe that

fails.

The

their

claim of

absolute legislative

Supreme Court's case law

immunity

demonstrates that even

if a suit asserting individual rights could not be brought to

challenge

legislative act

legislative immunity

against

or

if it

per se,
___ __

merely seeks

a legislative employee for

enforcing the

it

directives of

is not

barred by

prospective relief

his role in carrying out

that same

legislative act.

That is precisely what the plaintiffs seek here.

There

is no

relate to legislative

U.S.

306, 313

(1973)

immunity

for practices

activities.

See Doe v.
___ ___

("Our cases

that

simply

McMillan, 412
________

make perfectly

apparent

. . . that everything a [legislator] may regularly do is

legislative act

Debate Clause.");

515

(1972)

within the

United States
_____________

("In no

case has

Clause as protecting all

process." (emphasis in

395 U.S. at 503

bar all

protection of

the Speech

v. Brewster, 408
________

this

Court ever

or

U.S. 501,

treated the

conduct relating to the legislative

________

original; footnote omitted)); Powell,

______

("Legislative immunity does not,

judicial review

not

of legislative acts.").

of course,

Moreover,

"[t]hat [legislators] generally perform certain acts in their

____________________

Whatever

difference of

opinion the question

immunity

might

the

allow,

district court's

of legislative
"failure"

to

afford such immunity to defendants sua sponte was not clearly

___ ______
in error, and certainly
of

justice or

did not produce a

seriously affect

gross miscarriage

the fairness,

integrity or

public reputation

of the

113 S. Ct. at 1779.

judicial proceedings.

See Olano,
___ _____

There was no plain error.

-43-43-

official capacity as [legislators] does

all such

States,
______

acts

legislative in

408 U.S. 606, 625

agrees, the doctrine

nature."

(1972).

not necessarily make

Gravel
______

Rather,

of legislative immunity

v.

United
______

as the majority

protects "only

purely legislative

Chastain v.
________

activities."

Sundquist, 833 F.2d

_________

Brewster, 408
________

311, 314

U.S. at 512;

(D.C. Cir.

1987)

(quoting Brewster), cert. denied, 487 U.S. 1240 (1988).

________
____________

The basic protection of the doctrine of legislative

immunity

attaches

legislators.

to

actual

"speech

Gravel, 408 U.S. at 625.

______

or

debate"

The Supreme Court has

made clear that

[i]nsofar

as

construed to

[legislative
reach

other

immunity]
matters,

is
they
____

must
be
an integral
part
of
the
__________________________________________
deliberative and communicative processes
__________________________________________
by

which

[legislators]

participate

committee
and House
proceedings
____________________________________
respect to the

by

consideration and

in
__
with

passage

or rejection
with

of proposed

legislation

or

respect to other matters [within the

legislature's

constitutional

jurisdiction].

Hutchinson v. Proxmire, 443 U.S. 111, 126 (1979) (emphases in

__________
________

original) (quoting Gravel,

______

does

408 U.S. at

625).

The

majority

not dispute this definition of the scope of legislative

immunity.

It is important

to recognize

that the

here seek only to enjoin Rule 45's enforcement.

___________

legislative immunity does not

plaintiffs

In my view,

reach enforcement of the House

Rule because such enforcement is not "an integral part of the

-44-44-

deliberative

and

communicative

processes"

of

the

state

legislature.

Of course,

public

to the House's floor

legislative process

But

the regulation of the

it belies

has an important

-- that is

common

admission of the

usage, I

defendants' practices relating to

impact on the
______

what this lawsuit

believe,

to say

is about.

that

the

the admission or exclusion

of

classes of persons

integral

part

of

from the

the

deliberative

processes" of the legislature.

not

part and parcel of

fashion as are

constitute "an

and

communicative

Certainly, such practices are

the legislative process

the kinds

Supreme Court has

House floor

of legislative acts

in the same

to which

previously extended legislative

the

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,
_______

to other

gathering

v.

383 U.S. 169, 180

legislators,

(1966), circulating documents

McMillan, 412
________

U.S.

at 312,

or

the

of information for a committee hearing, Dombrowski

__________

Eastland, 387
________

U.S. 82,

84 (1967)

(per curiam).18

See
___

____________________

18.

An action challenging any

would

have required

of these immunized activities

proof, as

this case

does not,

substance of a legislator's act

-- e.g., how the

____

voted,

speech

or

the

content

of

communications to other legislators.

618-21

(drawing this

U.S. at 526 (holding that act of bribery

did

the

legislator
content

of

See Gravel, 408 U.S. at

___ ______

distinction); see
___

government

or

of the

not

also
____

Brewster, 408
________

was not immune from

prosecution

if

[defendant]

spoke, how he debated, how he voted, or anything

he did in the chamber or in committee").

-45-45-

need

to

prove

"how

Brewster, 408 U.S.

________

at 516

this Court, the Speech

an

("In every case

thus far

or Debate Clause has been

before

limited to

act which was clearly a part of the legislative process."

_________________________________________

(emphasis added)).

It is

the

practice

legislature

not enough,

challenged

conducts

conditions

under

Hutchinson
__________

v. Proxmire,
________

extend legislative

senator

in a

which

as the majority

here

its

"affects"

affairs

or

suggests, that

the

"colors

legislators"

do their

the Supreme

Court, in

immunity to certain statements

press release,

acknowledged that

way

the

the

very

work.

In

refusing to

made by a

a senator's

ability to

the

make such

functioning

statements was arguably

of

the

Senate"

and

"essential to

conceded

statements affected the legislative environment.

that

such

443 U.S. at

130, 131 ("We may assume that a Member's published statements

exert

some

therefore

influence on

have

other

relationship

deliberative process.").

legislative

doing

Yet,

immunity attached

so, it observed that

distinguished

votes in

between

to

to

is

the

Congress and

legislative

the Court concluded

such

it had, in

what

the

and

that no

statements.19

In

the past, "carefully

only 'related to the due

_____________________

____________________

19.

Similarly, in Bond
____

Supreme

Court allowed

v. Floyd, 385
_____
a suit

U.S. 116 (1966),

to go forward

the

challenging on

First

Amendment

grounds

the

constitutionality

of certain

legislative resolutions preventing the seating of Julian Bond

in

the Georgia legislature that had

to

political

statements

by

been passed in response

Bond

that

had

apparently

displeased his fellow legislators.

-46-46-

functioning of the legislative process,' and what constitutes

___________
___________

the legislative process

_________________________

[Speech

or Debate]

entitled

Clause."

to

Id. at

immunity

under

131 (emphases

the

added;

___

citation

omitted).

practices, while

the

Here,

process"

simply do

in

the

sense

absolute legislative immunity.

28

F.3d

283,

299

(3d

legislative

immunity

comprised]

a necessary

[legislative] acts,"

part

of

defendants'

perhaps "related to the

legislative process,"

legislative

the

1994)

acts

not "constitute[]

necessary

to

(declining

which,

be said

deliberative

to

"although

precondition for the

could not

Congress's

due functioning of

the

trigger

Cf. United States v. McDade,

___ _____________
______

Cir.

for

challenged

to be

and

extend

[they

performance of

"an integral

communicative

processes"), cert. denied, 115 S. Ct. 1312 (1995).

____________

That the

defendants' challenged practices

are not

"legislative" in the sense

that

the

plaintiffs' claim

necessary to trigger immunity and

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

arrest of

suit

resolution

the plaintiff.

that had

However, the Court

authorized

the

permitted the
_________

to go forward against the House's Sergeant at Arms, who

-47-47-

had merely executed the unconstitutional arrest warrant.

________

See
___

id.
___

the

at 202.

holding

As the

of Kilbourn:
________

Supreme

"That

order an unconstitutional

those who

Court later

the House

could with

arrest afforded no

made the arrest."

summarized

impunity

protection for

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

an

enforcement-type capacity

immunity.

the

against a legislative

395 U.S. at 504-05.

defendant

congressmen

immunity

for

Clayton

Powell

as

See id.
___ ___

the Court

were

Member

at 506.

went on

legislative immunity did not

___

barred

by legislative

There, the

Court held that

entitled

their unconstitutional

Representatives.

Kilbourn,
________

is not
___

of

to

refusal

the

legislative

to

U.S.

Applying the

to hold

employee in

that the

seat Adam

House

of

teaching of

doctrine of

bar a judicial determination of

the

merits

extent

that

legislative

enforcing the
_________

of

plaintiffs' constitutional

those

employees

House's

claims

were

who had

asserted

merely been

resolution, namely,

Arms, the Clerk, and the Doorkeeper.

claims,

to

against

the

the

responsible for

the Sergeant

See id. at 504-06.

___ ___

at

The

Court added that those officials could not assert legislative

-48-48-

immunity

on

pursuant

to express

The

Court

determine

in

Powell
______

rights"

against the

implementing

the

that they

orders of

had simply

the House."

thus "reasserted

the validity

individual

brought

the ground

been "acting

Id.
___

judicial

of legislative actions

in

an

action

for

power

to

impinging on

prospective

legislative functionaries

allegedly

at 504.20

relief

charged with

unconstitutional

activity.

Gravel, 408 U.S. at 620.

______

The

Dombrowski
__________

Court

had

v. Eastland,
________

applied

387

decided shortly before Powell.

U.S. 82

similar

reasoning

(1967) (per

in

curiam),

In that case, which arose out

______

of an allegedly illegal raid, the Court sustained the defense

of

legislative immunity

subcommittee

issuing

extend

of

the

subpoenas

immunity

U.S. Senate

to gather

to

allegedly participated

to obtain the

with respect to

the

his role

Judiciary

information,

subcommittee's

same information.

in carrying

See id.
___ ___

Committee

but

of a

for

declined to

counsel,

in the execution of

thus supports the principle

for

the Chairman

who

had

the illegal raid

at 84.

Dombrowski
__________

that a legislative employee sued

out

or executing

an (immunized)

____________________

20.

I respectfully disagree,

suggestion
any

that the

therefore, with the majority's

legislative immunity

doctrine protects

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

Consumers
Union of United
States, Inc.
_____________________________________________

decision
v.

in

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.

-49-49-

legislative directive may be

whose rights have

answerable to a private citizen

been violated.

See Gravel,
___ ______

408 U.S.

at

619-20.

More

recently,

in Supreme Court of Virginia

___________________________

Consumers Union of the United States, Inc.,

_____________________________________________

(1980),

the

brought under

Supreme

Court

42 U.S.C.

against certain

had

enacted

by

the

Virginia Court and

defendants.

The Supreme

an

Virginia

Supreme

action

rules that

Court.

and injunctive relief,

its Chief Justice

719

First Amendment

attorney disciplinary

plaintiffs sought declaratory

the

446 U.S.

with

1983 asserting a

challenge

been

was presented

v.

The

naming

(among others) as

Court concluded that

the Virginia

Court, in propounding the disciplinary rules, had acted in

legislative (not judicial) capacity.

held

entitled

to

absolute

The Virginia Court was

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
___

however,

733-34.

that

the

The

Supreme

Virginia

Court

legislative role with respect

1983

Court

that to

the extent

See id. at 734.

___ ___

that the

action sought prospective

in

its

enforcement
___________

performed

not

observed,

only

to the disciplinary rules, but

also had enforcement authority.

___________

concluded

Court further

plaintiffs' section

relief against

capacity,

legislative immunity did not bar the suit.

-50-50-

The Court

the

the Virginia

doctrine

of

Id. at 736 ("[W]e

___

believe

properly

that

the

Virginia

were held liable

Court

in their

and

its

chief

justice

enforcement capacities.

. . . For this reason the Virginia Court and its members were

proper defendants

relief,

just as

in a

other

suit for declaratory

enforcement

officers

and injunctive

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

that the
U.S.

doctrine of

219, 227

serves, Forrester v. White, 484

_________
_____
legislative immunity does not bar a

(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
is asserted

providing the necessary conditions of a sound

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
employment

decisions."

-- comprises precisely

is responsible for making such

Id.; see also Negron-Gaztambide v.

___ ________ _________________
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

(1995).
exclusion of

librarian), cert. denied,

_____________
all but

Under

115

S. Ct.

government lobbyists from

this

functional

analysis,

doorkeeper's
acts
in
determining
the House floor, and the claim seeks

the

whether
only to

1098

lobbying on
defendant
particular
enjoin such

individuals were authorized to enter the House chamber are of

an

"administrative"

nature within

enforcement.

of Negron_______
The defendant doorkeeper is not distinguishable

Gaztambide.
__________

See id.
___ ___

These acts

the

meaning

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,
privately-owned building.
Powell, 395 U.S. at 504.
______
entail any peculiarly

a doorkeeper standing outside a

The doorkeeper's acts do not

I would conclude, therefore, that

legislative decisionmaking -- in

case, those decisions were already embodied in

the defendant doorkeeper is not entitled to
adoption

of

Rule

45.

The

acts

of

the

this

the House's
assert 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,

administrative and not entitled to absolute immunity.

but

-51-51-

accordingly proceed to a determination of the First Amendment

question presented.22

Reaching the merits

claim, importantly,

protected by

of plaintiffs'

does no injury to

constitutional

the classic interests

the legislative immunity doctrine.

The common

law

immunity that

origin and

Speech

U.S.

state

legislators enjoy

rationale to that accorded

or Debate Clause."

at

731.

speaking,

Island

House

infringement

are

on the

members, nor does this

being

v.

members

of

Brandhove, 341
_________

the

matters before

liberty of

House in

the Rhode

There

speech" of

case raise the need to

is

no

House

protect House

of every one, however powerful,

whom the exercise of that

Tenney
______

Congressmen under the

challenged.

"fullest

members "from the resentment

to

of

voting on

not

in

Supreme Court of Virginia, 446

___________________________

The actions

debating, or

is "similar

liberty may occasion offense."

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

not participate

in the

exclusion of private

the legislative floor.

time,

whether,

aspects of

if

There

the

Rule 45's

his

role

in

such

doorkeeper's enforcement

Speaker did

lobbyists from

is no need to decide,

Speaker did

enforcement, he

legislative immunity in an
for

shows, the defendant

participate
would be

at this
in

other

entitled to

action brought against him solely

enforcement.
of the Rule

with all the relief necessary.

-52-52-

Relief against

the

may provide plaintiffs

representatives

without fear

to

execute the

of prosecutions,

functions

of

their office

civil or criminal."

Id.
__

at

373-74 (citation omitted); see also Brewster, 408 U.S. at 507

________ ________

("The immunities

written

of the

into the

private benefit

integrity

of

independence

Constitution

of Members of

the

of

Speech

or Debate

Clause were

not

simply for

the personal

or

Congress, but to

legislative

individual

process

by

legislators.").

protect the

insuring

the

Reaching the

merits of the constitutional question presented here poses no

threat

to

the

legislators.23

independence

of

the

Rhode

Island

state

Historically,

the

privileges

of

the

Speech

Debate Clause emerged from a need to protect the

from executive

intimidation and

harassment.

Reinstein & Harvey A. Silverglate,

the Separation of Powers, 86

__________________________

(1973).

or

legislature

See
___

Robert J.

Legislative Privilege and

_________________________

Harv. L.

Rev.

Indeed, the purpose underlying the

1113, 1120-44

Speech or Debate

Clause, that is, to enable speech critical of the government,

also

underlies the

speech.

Cf.
___

First

Akhil

R.

Constitution, 100 Yale L.J.

____________

ironic

indeed

to

____________________

permit

Amendment's

Amar,

protection

of

free

The Bill of Rights as a

___________________________

1131, 1151 (1991).

the defendants

to

It

would be

invoke

those

23.

Davids
______

support

v. Akers, 549 F.2d 120 (9th Cir. 1977), does not

_____

the proposition that

the defendants'

immune from constitutional scrutiny.

reached

the merits

and

practices are

The court there in fact

scrutinized the

plaintiffs'

First

Amendment claims, but found them wanting.

-53-53-

immunities

to benefit

communications between

the executive

branch (government lobbyists) and the legislative

branch, to

the

exclusion

citizens.

of

communication

Judicial illumination

from

groups

of

private

of the immunity,

as James

Madison said, must be guided by "the reason and the necessity

of

the privilege."

Doddridge

Letter from

Madison to

Philip

(June 6, 1832), in 4 Letters and Other Writings of

__
_____________________________

James Madison 221 (1884).

_____________

that

James

That reason

and necessity dictate

this court not credit the immunity defense on the facts

of this case.

First Amendment
_______________

Is the First Amendment violated by

practice

floor

of admitting

to

government?

lobby while

government

lobbyists onto

excluding those

The answer,

the defendants'

I believe, is

the House

not employed

by the

that the defendants

have violated the First Amendment.

Several

Amendment

interrelated

interests

practices.

The

are

and

offended

defendants have

fundamental

by

the

excluded

First

defendants'

the

plaintiffs'

political speech and have done so in a discriminatory manner.

The defendants'

content-based

and

practices have

discrimination,

government

viewpoints

resulted

favoring government

and

excluding

speakers and non-government viewpoints.

speech posed

by the practices

in viewpoint-

speakers

non-government

The restrictions on

are severe in

-54-54-

and

their effects.

Defendants'

government

discriminatory

unchecked

rather than in the

strike

at

of

practices to

scrutiny

defendants

are

narrowly

not

power to

act

also

in

the First

tailored

interest,

These effects

and subject

level of

scrutiny, a

withstand.24

to

the

Amendment,

the highest

cannot

permit

its self

interest of the citizens.

the heart

defendants'

practices

meet

Those

practices

compelling

state

interest, and therefore fail to pass constitutional muster.

The

in

parties have framed

terms of

forum."

whether the

But

the

problematic,25 is

the First Amendment issue

House Chamber

"public

floor is

forum"

a "public

doctrine,

particularly ill-suited to this

itself

case.

It

____________________

24.

There

are

scrutiny.

In

additional
footnote

reasons

of

Products Co., 304 U.S. 144,

____________

to

apply

United States
______________

heightened
v.

Carolene
________

152 (1938), oft-quoted for other

language, the Court noted the possibility that:

legislation

which

restricts

political processes
be

expected

to

undesirable
subjected
scrutiny

which can ordinarily

bring about

legislation
to

those

more

repeal
[might]

exacting

under the

of
be

judicial

general prohibitions

of the Fourteenth Amendment than are most

other types of legislation.

The

defendants'

restrictive

practices

legislation.

are
See

analogous
John H.

to

just

Ely, Democracy

such
and

___

______________

Distrust 76-77 (1980).

________

25.

At best,

shorthand

the public forum doctrine is

for the

decisions."

principles that

have guided

the Court's

Cornelius v. NAACP Legal Defense and Educational

_________
___________________________________

Fund, Inc., 473

___________

U.S. 788,

"Beyond

confusing

public

character of

attention

an "analytical

to

820 (Blackmun,

the issues,
some

the precise

an

excessive

forums, coupled
details

-55-55-

J., dissenting).

of

focus on

with

the

inadequate

the restrictions

on

is peculiar

to attempt to

fit the doctrine to

the chamber

of a legislative body at work.

the floor of

Indeed, the very

language of "public forum" masks the issues at stake.

As recognized by

taken

by

this

Court

the district court,

in

AIDS
Action Committee
of
_____________________________

Massachusetts, Inc.
____________________

v.

Authority, 42 F.3d 1
_________

(1994), is more

Massachusetts
Bay Transportation
___________________________________

apt.

that where the government was the proprietor

it was inappropriate to

public

forum doctrine

affecting First

the approach

This court

held

of the property

analyze under the "relatively murky"

a discriminatory

Amendment rights.

government practice

Id. at
___

9.

At

issue in

AIDS Action Committee was the MBTA's practice of refusing, on

_____________________

the

grounds

that its

policy was

suggestive advertisements, to

not

to run

display condom

any sexually

advertisements

in its subway and trolley cars, while it was at the same time

running sexually suggestive movie advertisements.

This court

analyzed

that

practices

practice

viewpoint

and

were

gave

rejected

the

viewpoint

rise

to

government's

neutral, finding

an

discrimination.

discrimination disposed

claim

impermissible

Because

of the case,

the

its

government

appearance

this

there was no

of

viewpoint

need for

____________________

expression, can leave

speech inadequately protected

cases, while unduly hampering

others."
93

(2d

in some

state and local authorities in

Laurence H. Tribe, American Constitutional Law 992___________________________

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).
____________

-56-56-

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

The

has repeatedly

First Amendment

making

judgments

particularly

reflects a

about

where

been recognized

distrust of

what

political

speech

speech

public

worthwhile,

involved.26

is that "debate on

issues should be uninhibited, robust, and wide-open."

New York Times Co. v.

___________________

"The

the government

is

is

central commitment of the First Amendment

as serving.

maintenance

discussion to
__

the will of
___ ____ __

of

Sullivan, 376 U.S.

________

the

the end that

___ ___ ____

the people and

___ ______

opportunity

254, 270

for

free

government may be
__________ ___ __

(1964).

political

responsive to
__________ __

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

regulating political
government's

speech is based

incentives.

It

is

is greatest for

on a sensible
in

this

view of

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
issue is
stake.

its own

interests; and when

political, its own

the speech

interests are almost

at

always at

It follows that the premise of distrust of government

is strongest when politics is at issue.

And when the premise

of

of justification

distrust is

highest."

strongest,

Cass R.

the burden

is

Sunstein, Democracy and the Problem of

______________________________

Free Speech 134 (1993).

___________

-57-57-

(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

expression; it

v. Freeman,
_______

concerning public affairs is more

is the essence of

504

Alabama, 384 U.S.

_______

379 U.S. 64, 74-75

U.S.

191,

than self-

self-government.'"

196 (1992)

(quoting

Burson
______

Mills
_____

v.

214, 218 (1966) and Garrison v. Louisiana,

________
_________

(1964)).

Political expression is

at the

center of the rights

id.;
___

Robert

H.

Bork,

Amendment Problems,
___________________

Sunstein,

protected by the First Amendment.

See
___

Neutral Principles and Some First

____________________________________

47 Ind.

L.J.

Free Speech Now,

________________

59 U.

1,

Chi.

29

(1971); Cass

L. Rev.

255,

R.

301

(1992).

The defendants' practices in excluding the voice of

private, but

imposes

at

not government, lobbyists from

a severe burden on

influencing

the votes

affect the outcome of

the House floor

political speech.

of

legislators;

Lobbying aims

it attempts

the political processes.

Such

speech

is "at the heart of the First Amendment's protection."

National Bank of Boston

_________________________

v.

Bellotti,
________

435

to

U.S. 765,

First
_____

776

(1978).

groups

More specifically,

of

citizens

to

lobbying involves the attempt by

have

their

persuade legislators to legislate

-58-58-

hired

representatives

in ways that are favorable

to the interests of

democracy such as

behalf of the

concept

those citizens.27

"In

this, these branches of government

people and, to a very large

of representation

people to make their

depends upon

act on

extent, the whole

the ability

of the

wishes known to their representatives."

Eastern Railroad Presidents Conf. v.

___________________________________

Noerr Motor Freight,

_____________________

Inc., 365 U.S. 127, 137 (1961); see also

____
___ ____

U.S.

a representative

Meyer v. Grant, 486

_____
_____

414, 421 (1988) ("[B]oth the expression of a desire for

political

proposed

challenged

change

and

change" are

a discussion

"core

practice, as

political expression,

of

the

merits

political speech.").

here,

imposes a

courts must

of the

Where

severe burden

review the practice

on

with

____________________

27.
as

Lobbying may be
an

exercise

explicitly
right

of

protected not only as speech,

of the

right

embodied in the
citizens

representatives.

to

petition.

but also

That

right,

First Amendment, encompasses the

to communicate

with

their

legislative

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

Clause.

See id. at
___ ___

F.2d 442,

the coverage of the Petition

137-38; United States

_____________

453 (D.C. Cir.) (reading

v. Nofziger, 878
________

Supreme Court precedents

for the proposition that lobbying, "insofar as it constitutes

self-representation,"
right to petition),

is protected

by

the First

cert. denied, 493 U.S.

____________

Amendment

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

means of

informing

representatives of their needs and concerns).

-59-59-

strict scrutiny.

Cf.
___

Burdick v. Takushi, 504 U.S.

_______
_______

428, 434

(1992).28

The

strict

private

scrutiny

not

lobbyist

only

restriction is

because

it

subject

severely

to

burdens

political speech,

but also because it

the basis of viewpoint and

197.

The

restriction

discrimination

speech.

content.

because

it

See Burson, 504 U.S. at

___ ______

constitutes

targets

content-based

particular

kind

of

It is also viewpoint-based discrimination because it

excludes

particular set

speaker-based

advantage

ban

to

and

the

practiced

expression

the

government"

of

and

of messages.

content-based

government's

discrimination

by

stifles

all

id. at 2477
___

The result

bar

message

other

FCC,
___

(O'Connor, J.,

is a

that

gives

viewpoint.29

defendants

"particular

Broadcasting System, Inc. v.

___________________________

(1994);

discriminates both on

thus

permits

favored

speech.

114 S.

The

by

See
___

Ct.

concurring in

the

Turner
______

2445, 2458

part and

____________________

28.

Lobbying

protection
profit.

is

even

not

subject

if the

to

lower

standard

hired representatives

do it

of

for a

See Board of Trustees of the State Univ. of N.Y. v.

___ _____________________________________________

Fox, 492 U.S. 469, 482 (1989).

___

29.

That the

entire

class

restriction

non-governmental viewpoint
of
any

varying
the

viewpoints

less

viewpoint

may in fact
does

not

be an

make

the

discrimination.

See
___

Rosenberger v. Rector and Visitors of the Univ. of Va., 115

___________
_________________________________________
S.

Ct.

viewpoint

2510,

2518

(1995)

discrimination

rules] discriminate

(rejecting

occurs

argument

because

against an entire class

the

that

"no

[challenged

of viewpoints",

and saying that the "declaration that debate is not skewed so

long as multiple voices are silenced is simply wrong").

-60-60-

dissenting in part) ("The First Amendment does more than just

bar government from intentionally suppressing speech of which

it disapproves.

from

excepting

It also generally

certain

kinds

of

prohibits the government

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

First Nat'l Bank of Boston,

____________________________

Amendment

forbids

subjects about which

may

address

government

from

persons may speak and

a public

issue.").

435 U.S.

at 785

"dictating

the

the speakers who

The government

lobbyist

preference as applied here fails that test.

The

plain.30

dangers

By simply

of

the

defendants'

practices

excluding all voices save the

are

voices of

government lobbyists, the government could easily

____________________

30.

In

the franchise

cases, corollary

representative nature of government

concerns about

the

led the Supreme Court to

invalidate
frozen

laws which

resulted in

out of the decision

process.

U.S.

533 (1964);

Harper v.
______

U.S.

663 (1966);

Carrington
__________

(invalidating Texas

groups of

persons being

Reynolds
________

v. Sims, 377
____

Virginia Bd. of Elections, 383

__________________________
v. Rash,
____

380

U.S. 89

(1965)

statute

denying franchise

to those

military who

moved into the

state where Texas

attempted to

justify

statute

the

by

arguing

military

personnel might

otherwise start influencing elections).

-61-61-

suppress

in

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.

_____________________________

U.S.

789,

804

illegitimate

rule."

that

Id.
___

license one

requiring the

R.A.V.
______

(1984).

they

Taxpayers for Vincent, 466

______________________

These

would

"[Rhode Island]

side of [the]

effects

are

immediately

has no

debate to fight

other to follow Marquis

"so

plainly

invalidate

. .

the

authority to

freestyle, while

of Queensbury Rules."

v. City of St. Paul, Minn., 112

_________________________

S. Ct.

2538, 2548

(1992).

Nor is

House is

singular

citizens

to

have

this risk

in the

direct,

hypothetical.

lack of

The

Rhode Island

opportunity for

effective

private

communications

with

legislators.

The

ability

considerable advantage.

to communicate

directly

is

The situation created by the private

lobbyist ban is that akin to a monopoly over a single channel

of communication,

providing

where the government has

access to

that

channel and

discriminated in

also determined

the

content of what flows through the channel.

Against

this

panoply

of

dangers31

must

be

____________________

31.
the

Defendants' argument
legislature

executive

branch,

independently,
executive

is

undercutting
is

keenly

executive

gets

poses yet
information

the

and thus

other dangers too.

from

legislature's
to be

undercut.

a check

This

branch,

urging

the

amicus
strongly

-62-

ability
and balance

corollary

of the separation of powers

illustrated by

nowhere

danger

If

but

the

to

act
to the

of

the

at the state level

brief

filed by

the

its

interest

in

-62-

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

the

premise

that

the

only

would grant.

exceptions

Without accepting

to

immunity

are

irrational legislative

sufficient

to

acts, neither

withstand

strict

of those

scrutiny.33

interests is

Indeed,

the

supporting

the

____________________

communicating

with

the

legislature

and

exclusion of private voices.

32.

To

the extent

justified

that

the House

Rule

on its

face

was

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

__________

floor were objected to

defendants

lobbyists on the

by members as causing problems.

accordingly

do

not

try

to

justify

The
their

discriminatory distinction on such grounds.

33.

Defendants'

rigorous

test

practice
of

intermediate

scrutiny of restrictions
commercial

speech that

misleading, see
___
2371, 2375
impose

an

does

not

even

scrutiny.

has traditionally
concerns

meet

unlawful

the

less

Intermediate
been applied

to

activity

is

or

Florida Bar v. Went For It, Inc., 115 S. Ct.

___________
_________________

(1995), and to content-neutral

incidental

burden

Broadcasting, 114 S. Ct. at 2469.

____________

on

restrictions that

speech,

see
___

Turner
______

The test has three related

prongs: first,

the

government

must

assert

substantial

interest in support of the regulation; second, the government

must demonstrate that the restriction directly and materially
advances

that interest;

"narrowly drawn."

and third,

Florida Bar,
___________

the regulation

115 S.

Ct. at

must be

2376.

The

government's asserted interest in having government lobbyists

on

the floor

lobbyists, is
government has

of

the House,

to have

not shown

government provide
"substantial."
tailored" to

them

to

the exclusion

provide information.

why the

information, and

Relatedly, the

interest

private
But

in having

not private groups,

the
only
is

restriction is not "narrowly

meet the information provision

is overbroad and serves

of

goal because it

to exclude valuable information that

private lobbyists might provide.

-63-63-

defendants' bedrock argument is different again, and it, too,

is insufficient.

The

majority

credits

legislative independence and

act to provide information.

reasons

of

bolstering

of having government

lobbyists

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

lobbyists access to the

that allowing

only governmental

floor of the legislature

serves the

goal of allowing legislators to receive valuable information.

Defendants,

however,

have

established

no

demonstrable

interest in receiving information

exclusion of private sources.

from the government to the

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

special hostility

display to

towards the private

attempt to influence their

Island] are
through

entitled to

the

the public

means

of

the legislature's

interest groups

votes. "The politicians of [Rhode

express that

imposing

hostility --

unique

at 2550.

"The

point of

majority preferences must be

than

on

upon

R.A.V., 112 S.
______

Amendment is

that

expressed in some fashion other

of its content."

Id. at
___

"[T]he First Amendment as we understand it today rests

the

premise that

private power,
and

the First

silencing speech on the basis

2548.

but not

limitations

speakers who (however benightedly) disagree."

Ct.

that

as a

it

is government

that is the

consequence,

the

power,

main threat to
Amendment

rather than

free expression;

imposes

substantial

limitations on the Government even when it is trying to serve

concededly praiseworthy
Ct.

goals." Turner Broadcasting,

___________________

114 S.

at 2480 (O'Connor, J., concurring in part and dissenting

in part).

-64-64-

sources

controlled

compelling

the

ability

one.35

of its

restricting the flow

by

its

"A State's

citizenry

own

interests

claim

to

that it

make wise

of information to

is

hardly

is enhancing

decisions

them must be

by

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,

narrowly

tailored

the private

to

serve

lobbyist restriction

the

interest in receiving information.

legislature's

is not

asserted

Simon & Schuster, Inc. v.

______________________

Members of the New York State Crime Victims Bd., 112

________________________________________________

S. Ct.

____________________

35.

Defendants

restriction to

attempt

to

liken

their

the restrictions on lobbying

private

lobbying

imposed by Rule

XXXII

of

the

United

Defendants'

analogy,

demonstrates

that

government

House

of

XXXII

is

normally

no

access to

works

the

floor

Rule does

neutral and

excludes all

not

--

Similarly, staff

them

need to
to lobby

and former
are

denied

allow

and
give
while

government

lobbyists.

lobbyists.

afforded the courtesy of admission

Rule

Even those

to the floor --

Parliamentarians, former

elected minority
admission

organizations have any interest

occasions

against

lobby while excluding private

elected officers,
House

Representatives.

"compelling"

former Members of the House, former

the

of

Unlike the defendants' practices, the U.S.

Representatives

lobbyists to

House

however,

there is

lobbyists

excluding others.

States

if

employees of

they

or

their

in matters before the House.

of a Member are not allowed to lobby on the

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

to give preference to the government.

-65-65-

compelling need

501,

511 n.** (1991).

valuable information

majority points

interests

and

independent

In this case the restriction excludes

from the

out, lobbying groups

perspectives.

sources of

legislature's access to

to

legislative purview.

have vastly

Access to

information, far

such

from

As the

different

varied and

impeding the

useful information, surely functions

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

interest of

the legislature is a

government.

very legitimate

The majority suggests

there is

distinction between mere

information providing and lobbying,

but that

contradicted

distinction is

factual findings

of the district

by the

record.

court leave no

The

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

government lobbyists, whether it

more lightly

value

to

the

speech

by

be heavy-handed lobbying or

dexterous provision of information.

See Block
___ _____

v. Meese,
_____

793 F.2d 1303,

cert. denied,
_____________

478

government speech is

1312-14 (D.C. Cir.)

U.S. 1021

not the

(1986).

point.

(Scalia, J.),

But

the value

of

Rather,

the point

is

-66-66-

that

the

government has

permitted

prohibiting non-government speech.

itself

to speak

while

Speech

lobbyists, is

subject to

from

non-government

also valuable.

registration and

Indeed, while

including

lobbying may be

disclosure,36 no case

suggested that lobbying, including

and providing component,

speakers,

has ever

its information-gathering

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,

credit

even if

the distinction

there

were greater

between "information

reason

providing" and

"lobbying," First Amendment "due

process" type issues

still

distinction to

preclude reliance

restriction

Monaghan,

of

First

on the

Amendment

rights.

First Amendment "Due Process",

______________________________

to

would

justify the

See
___

83 Harv.

Henry

P.

L. Rev.

____________________

36.

This

case

does not

involve

any

subsidy, creation of a government

issue of

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

that

much

of

gathering and
Edward

in the political

what modern

day

science literature

lobbyists

provision of information to

do involves

the

legislators.

Cf.
___

O. Laumann et al., Washington Lawyers and Others: The

__________________________________

Structure of Washington Representation, 37 Stan. L. Rev. 465,

______________________________________
495 (1985);

James Q. Wilson,

(1995); Jeffrey S. Banks &

Political Organizations xix-xx

_______________________

Barry R. Weingast, The Political

______________

Control of Bureaucracies under Asymmetric Information, 36 Am.

_____________________________________________________
J.

Pol. Sci.

that
is to

509 (1992).

Political scientists

lobbyists' primary strategy

in influencing legislators

provide information to counteract

of other
tactics.

groups, not
See
___

David

have found

the similar efforts

to achieve influence
Austen-Smith

&

through pressure
John

R.

Counteractive Lobbying, 38 Am. J. Pol. Sci. 25 (1994).

Wright,

______________________

-67-67-

518,

519

procedural

should

(1970) ("If

the

safeguards in the

require

equivalent

speech involved - for

Constitution

requires elaborate

obscenity area,

a fortiori it

procedural protection

when

the

example, political speech - implicates

more central first amendment concerns.").

Even if there were

discernible distinction,

statement and advocacy

the "difference

between factual

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

Here, legislators

in

fact influence

of

legislation"

is

exceedingly

testified that "information"

them

on

how to

vote.

recognized that information may influence

fine.

provided did

The

votes.

House

has

Rule 45 on

its face provides that "no person . . . shall either directly

________

or indirectly" engage in the practice of lobbying.

_____________

has

thus

drawn

the

line to

indirect, to influence votes.

preclude

any

The House

activity, even

The First Amendment puts

the

burden on the

government to finely

permissible goals,

and no

tailor its practices

such fine tailoring

defendants' practices here.

See
___

was done

to

by

Rubin v. Coors Brewing Co.,

_____
_________________

115 S. Ct. 1585, 1593 (1995).

The

real

argument

articulated

to justify

government

lobbyists

their

that

the

defendants

have

actions is

their claim

that

represent

-68-68-

the

people

while

non-

government lobbyists do not.

no

cause to worry.

values.

Accordingly, they say, there is

That is an

While there may be value to the government voice, it

cannot be the only

voice.

to stifle discussion.

(1976) ("Discussion

the operation of

Constitution.

protection to

To permit that to be

See Buckley
___ _______

. . .[is]

14

integral to

the system of government established by our

The

First

Amendment affords

such political expression in

political and

so would be

v. Valeo, 424 U.S. 1,

_____

of public issues

[the] unfettered interchange of

of

inversion of constitutional

social

the

broadest

order 'to assure

ideas for the bringing about

changes desired

by the

people.'"

(citing Roth v. United States, 354 U.S. 476 (1957))).

____
_____________

There

is

another danger,

government's voice will not

the

public.38

and

that

is that

the

truly represent the interests of

Government should

theoretically

represent

____________________

38.

Defendants

may

be captured by "special interests."

that

express a legitimate concern that government

the government

interest group,

itself

Apart from the fact

is frequently

its own

the solution to the problem

captured by "special interests"

special

of a government

would hardly be to have

the

government speak only to itself.

Moreover, many of
be

characterized

privilege.

the

Citizens,

powerful, band
whether

as

together in

Right

centers

of

wealth,

who themselves may not be

the groups be, to

Island State

the plaintiff groups may

groups to lobby
give but two

To Life

chapter of the ACLU.

to avoid the capturing

hardly

power

and

affluent or

the government,

examples, the Rhode

Committee, Inc.,

or the

local

These groups may be thought to be a way

of government by "special interests."

Defendants' practices may thus

thrust them headlong into the

dangers
a system

they profess to wish to avoid.

of democratic

interests to be able
action it

may be

Central to effecting

self-governance is

to act in concert.

impossible to alter

enabling private
Without collective

the status quo.

See
___

-69-69-

the

people

and not

often depart.

people.

represent itself.

The government

Government

Theory

and reality

is not always a mirror

employees

today

are

of the

recognized

as

constituting their own interest group.

See E. Nordlinger, On
___
__

the Autonomy of the Democratic State (1981).

____________________________________

The

Framers

legislators had an

perpetuate

had

that,

obvious incentive to

themselves or their

Limits, Inc. v.
_____________

fear

Thornton, 115
________

ilk in

once

in

power,

use "that power

office."

S. Ct. 1842,

to

U.S. Term
_________

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.

government acting

James Madison identified

in its

interests of those it

the problem of

self-interest, in contrast

to the

purported to represent, as one

of the

two

fundamental

government.39

problems

"It is

of

the

republican

of great importance in a

form

of

republic not

____________________

Sunstein, Democracy and the Problem of Free Speech, supra, at

________________________________________ _____
245-46.

39.

In a seminal immunity case, Justice Black recognized

Unfortunately,
legislative

it

is

assemblies,

true

that

born to

defend

the liberty of the people,

violated their sacred
the

instruments of

trusts and
oppression.

Those

who

First

Amendment] here

remember

cherish

that

have at times

freedom

-70-70-

[under

would do

this freedom

become
.

.
the

well to

cannot long

only

to guard the society against the oppression of the

_______________________________________________________

rulers,
______

but

to

guard

one

injustice of the other part."

(James

added).

Madison) (Roy

P.

part

of

society

against

the

The Federalist No. 51, at 161

_____________________

Fairfield 2d

ed. 1981)

(emphasis

Madison feared that government might choose to serve

itself instead of the citizens, saying:

In framing

a government

administered by

which is

men over men,

difficulty lies in this:

to be

the great

you must first

enable

the

government

to

control

the

governed; and in the next place oblige it

to control
people

itself.

A dependence

on the

is, no doubt, the primary control

on government; but experience

mankind

the

necessity

of

has taught
auxiliary

precautions.

Id. at
___

1132-33.

obliging

160; see
___

also Amar, The Bill of Rights, supra,

____
____________________ _____

Central

among

those "auxiliary

precautions"

at

in

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

Contrary to the
would be
people

Rights:

legislative

Constitution, can

to affirm
are

"No

. . .

superior

Federalist No. 78,

___________________

to
at

that the
the

be valid.

To deny

representatives of

people

228 (Alexander

themselves."
Hamilton)

Fairfield 2d ed. 1981) (reply to "Brutus").

-71-71-

act, therefore,

(Roy

this
the
The
___
P.

the

First

Amendment.

Defendants'

actions

violate

this

essential purpose of the First Amendment.

district

Accordingly, I would affirm the declaration by

the

court

are

that the

unconstitutional.40

adhere to the House

speak

In my view, the

and

not prefer

belongs to

choice of

of

the defendants

defendants must either

Rule and exclude all from its

to influence its vote

its floor,

choice

practices

or the House

the

the House.

floor who

must equally open

government's voice.

That

Under the

Constitution, the

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.

-72-72-