National Association of Social Workers v. John B. Harwood

SELYA, LYNCH, Before CYR and Circuit Judges.

SELYA, Judge. Circuit century ago, Dudley aOver Charles War- ner, nineteenth-century jour- Connecticut nalist, immortality by earned a sliver coin- ing phrase “politics strange makes bed- appeal, forges fellows.” This which an im- probable among disparate alliance groups as the National Association of Social Workers, the Rhode Island State Rifle and Association, Revolver the Rhode Island Affil- Union, iate the American Civil Liberties Right the Rhode Island State to Life Com- mittee, Inc., the Coalition to Preserve Choice, Association, the National Education Action, proves aph- and Ocean State that the orism still has force.

Here, (all improbable private, allies non-profit organizations) together banded bring with others to action Rhode against Island’s federal district court B. John Harwood, Speaker of the Rhode Island (the House) Representatives House of Petteruti, doorkeep- Guido the House’s head plaintiffs challenged er.1 The the constitu- plaintiffs underlying registered lobbyists 1. Other in the action includ- ed several individuals for (the Act). Act pur- 10-1 to 22-10-12 defines Rule 45—a rule tionality of House “acting directly soliciting “lobbying” as lobbying to ban both ports purpose promoting, others to act for the the House the House while the floor of opposing, amending, influencing applied. The face and as its session —on assembly passage by general manner the plaintiffs for most of the found district court legis- any legislation or the action on that to desist from con- the House and ordered § governor.” lation Id. 22-10-2. The regard practices with tinuing prevailing requires lobbyists private organiza- Act of Rule interpretation and enforcement register tions and interests to with the Secre- Social Workers 45. See National Ass’n of 22-10-6, State, tary §§ see id. 22-10-5 & (D.R.I.1995) (So- Harwood, F.Supp. 530 § 22- identifying badges, see id. and to wear ).2 briefing the benefit cial Workers Given lobby 10-8. Government officials who argument on the doctrine considerably leeway. Act given more The distin- denied to the benefit —a officials, many grants passage to elected safe judge, since the defendants guished district 22-10-3(1), public § see id. and other em- in issue neglected to raise the inexplicably ployees, required register, to are other- while reverse. the lower court —we exempt provisions. Act’s wise from the See § 22-10-4.1. Neither elected officials nor id. 1. BACKGROUND employees required to wear public other light “in the most the facts We recount badges. identification verdict-winner, consistent hospitable to the that, prior court found to the The district Cumpiano Banco support.” with record provided adoption of Rule the House two (1st P.R., F.2d Cir. Santander galleries overlooking the chamber which 1990). public, accessible to all members of the were House, fresh January In under addition, lobbyists “representa- included. procedural re- leadership pledged that had orga- private governmental tives of both form, Among adopted several new rules. present on the nizations were allowed to be (the full text of which is them was Rule Workers, 874 floor of the House.” Social face, appendix). reproduced in the On lobbyists typically F.Supp. at 535. These lobbyists floor all from the Rule 45 banishes occupied periphery, in an area seats on the (and lounge) House while of the House ranged alongside outermost aisles of the two Nonetheless, in the House is session. They with floor. communicated the House public to be on permits members of the rule variety ways, as legislators in a session, floor while the House is the House perimeter whispered conversations along “they seated provided that remain notes, floor, physical ges- the House written chamber, from conversa- refrain sides tures, signals. id. assorted See and other tion, decorum of the and maintain the buzznacking place even while the This took House,” do provided further debating floor amendments. were members prac- indirectly engage in the “directly adoption of Rule access After the 45(b). lobbying.” Rule tice of unchanged. galleries overhead remained forward, ex- point term the House Although Rule 45 does not define the But from that lobbyists (easily recognized statutory private defi- “lobbyist,” incorporates cluded badges) from obligatory Rhode identification “lobbying” contained nition of inwas Act, §§ 22- House floor while the House Lobbying R.I.Gen.Laws Island right po- (Kate to receive Coyne-McCoy, Amendment organizations lated their First non-profit Nova, Baldwin, that, Press, Su- even if Harvey Scott Barbara court ruled litical information. The Colt, Brown, Closter-Godoy, Barbara Steven legislators san denied some level had been Sullivan, Dibiasio, and Marti Rosen- Donn Anna lobbyists, ''rise[] denial did not access to the House berg), three members of elected deprivation.” Social the level of a constitutional Workers, (Edith Burlingame, Ajello, and Francis Barbara legislator- F.Supp. at 542. Gaschen). and, accordingly, appealed we plaintiffs have not brought by claims discussion to the confine our leg- court nonetheless rebuffed 2. The district plaintiffs. the other vio- islator-plaintiffs, that Rule 45 who claimed that, in physical presence, public’s district court found inherent session. The contrast, employees govern- perimeter “agents or access to the of the House floor present limited-purpose mental allowed rendered the floor itself a [were] bodies forum, id.; that, therefore, [was] on floor of the House while it see session, general [were] members both Rule 45’s exclusion of and its Moreover, public.” per- proscription against lobbying the “defendants Id. on the House organizations time, agents governmental impermissible mitted floor constituted place, present, speak, respond ques- expressive to be and manner restrictions on activi- 54(M1.3 tions, information, ty, basis, provide and to confer see id. at On this face, legislators during on the House floor court held that Rule on its violated occasions,” frequent plaintiffs’ not- rights. sessions First Amendment See withstanding apparently unconditional id. at 541.

text of Rule 45. Id. at 537. The court also hap- found the House plaintiffs April hazardly back on allowing lobbying struck enforced Rule date, they by government 1993. On that filed a civil action prohibiting officialswhile oth- (1988) against § under 42 ers lobbying. U.S.C. id. at 535-37. Predi- (as finding, Messrs. Harwood and Petteruti the indi cated on this the court concluded purportedly responsible enforcing viduals application that “the of Rule 45 amounts to a rules) charging speech.” the House’s that Rule on content based restriction on Id. at applied, plaintiffs’ its face and as violated the 541. Because the court could discern no rights “compelling under the First justi- Fourteenth interest” that Amendments. The defendants private denied fied the exclusion of lobbying while allegations. Following four-day sparing governmental a bench tri lobbying, it held the al, judge plaintiffs. interpretation found for the and enforcement of Rule 45 National Ass’n Social Workers v. Har invalid under the First Amendment. Id. at wood, (D.R.I.1994). F.Supp. 943 541-42. judg defendants then moved to alter the constructing remedy, In judge, a pre- ment. While that motion was under advise saging yet an parties, issue not raised ment, we decided AIDS Action Comm. v. judicial voiced concerns about interference Auth., Bay Transp. Massachusetts 42 F.3d 1 legislative affairs. See id. at 542. He there- (1st Cir.1994). judge then issued the plaintiffs’ fore declined the invitation to “re- us, opinion F.Supp. that is now before quire pre-1993 defendants return to the 530, modifying original rescript in certain practice admitting lobbyists, all particulars. private, onto the floor of the House on a substance, first-come,

In the court Instead, found that first-served basis.” Id. presence general public perime- opted on the he interpreta- declare “the current presence ter of the expressly House floor —a tion and enforcement of Rule 45 unconstitu- permitted by tional,” Rule 45—constituted “commu- and to order the House to refrain 540; expressive activity,” nicative and “continuing id. at from practices its current with that, due possibilities regard to the communicative to this issue.” Id. at 543.4 The view, that, 3. In the court's the rule did not "leave took a regard similar tack. It found “with open ample amendments, alternative means of communication proposed to floor which are often Workers, lobbyists,” F.Supp. for the Social and voted proceeding, on in the same House "representatives because elected only timely and useful communication that can Representatives Rhode part Island House of place take is that which occurs on the floor of the legislators legislative time ... [who] lack office House, during the debate on the amendment.” elsewhere, quarters the State House or [and Id. staffs, legislative generally lack who] and [who] us, jobs readily apparent have full time in addition to their For reasons that are not meant, reasoned, plaintiffs duties.” Id. This the court body never sued the House as a and, therefore, that exclusion of the denied them the plainly the district court lacked opportunity to communicate with hard-to-find jurisdiction enjoin plaintiffs the House. The legislators by way presence. that, of silent See id. now concede insofar as the lower court so, condemning purported Withal, lobbying ban to do its order cannot stand. sessions, during House plaintiffs argue floor House the court that the court’s un- sys- rule fosters two levels: should be: worthwhile leadership responded on House if barring all temic ends and courts will be the losers passed a new rule itself the House easily permit it to be too evaded. legislators and except persons floor, the named from the aides consistency reputedly But foolish is appeal. launched this defendants minds, hobgoblin Ralph of little see Wal Emerson, Reliance,” Essays: do “Self DEFAULT II. PROCEDURAL (1841), analysis, and in last First Series defendants, having engaged appeal, On princi of the raise-or-waive this articulation that, counsel, point for some new advance ple, though important, is a matter of discre reason, they neglected to raise unfathomable Guardia, v. La tion. See United States that, regard to the claim below: (1st Cir.1990) (holding that F.2d 45, they are actions anent Rule defendants’ discretion, appellate court in an ex “an has judicial under interference safeguarded issues”); case, virgin ceptional to reach ac of absolute common law doctrine the federal Singleton cord v. Wulff immunity. The of Rhode State (1976); General, Island, Attorney as ami- through its Mercedes-Amparo, 980 F.2d United States curiae, support. cus lends its (1st Cir.1992); 18-19 United States (1st day bring very in the a Krynicki, late F.2d 291-92 Cir. It 1982). (like rules) Ordinarily, Thus, an fore. argument this rule most ad new particular proffered appellant exception. who has of an occasional “Occasional” mits “may in the district court key exceptions claim or defense word. Since must be between, appeals.” appellate it in the court of United not unveil few and far court’s Cir.1992). (1st Slade, affirmatively 980 F.2d States v. discretion should not be exer jurispru This in our deeply heavily preponder embedded equities rule is cised unless the Teamsters, dence, see, Chauffeurs, e.g., step. in favor of such a ate Union, Helpers Local and Warehousemen Krynicki In and the La Guardia Co., 17, Transp. 953 F.2d Superline v. No. 59 opinions, guidelines suggest forth we set (1st Cir.1992) (“If any principle is settled 21 may appropriate it be to invoke the when that, circuit, it absent the most in this is exception, and we need not rehearse the circumstances, legal theories extraordinary Instead, explain why those crite litany. we in court cannot squarely the lower not raised here, and, process, in the ria are satisfied appeal.”), time on broached for the first explicate criteria themselves. near-religious it with a and we have invoked which, First, a ne- fervor, see, this is not ease e.g., McCoy v. Massachusetts (1st manner, timely 13, in a glecting 22 to raise an issue Technology, 950 F.2d Inst. denied, Cir.1991) cases), deprived appeals court of litigant has (collecting cert. 504 made a 1939, factfinding. The court below 910, L.Ed.2d 545 useful 118 U.S. (1992). appellants’ con- findings as to the variant of the raise-or- number Nor can this 45, enforcing Rule interpreting and pettifog duct principle be dismissed as waive indolent; requires addressing the omitted issue and ging technicality trap or a for the whether the de- only that we determine upon important consider the rule is founded conduct, fairness, giving full deference judicial economy, prac and scribed ations of estab- See, findings, falls within the e.g., v. these factual tical Sandstrom Chem wisdom. (1st immunity. Cir.1990); lished boundaries of 87 Corp., lawn 904 F.2d Thus, omitted Miller, fairly can be said that the it v. 636 F.2d 853 United States nature, Cir.1980). lends (1st Thus, purely legal in parties speak must issue is that, satisfactory on the exist- court, they resolution pain if itself clearly in the trial on development of lines, ing without further likely be bound record forget their will way for ease the the facts. These attributes peace. This is as it forever to hold their clearly ap- reasons which more derlying ruling forcement. For Rule 45 is unconstitution- —that endure, tangle. jurisdiction pear infra, this as the court had we need not unsnarl al— charged the rule’s en- over the individuals 628 Guardia, exception. needlessly prolonging litigation, yielded La 902

invoking the See 1013; Krynicki, F.2d at advantage at 689 291-92. F.2d no tactical to the defendants. Second, appellants’ proffer belated perhaps Sixth —and most salient —the magnitude,” constitutional “raises an issue of implicates great omitted issue matters of notwithstanding favors review a factor that moment, upon policies and touches Guardia, procedural default. La 902 federalism, comity, respect basic as Third, argument the omitted F.2d at independence of democratic institutions. Krynicki “highly persuasive,” 689 F.2d at is Courts must be sensitive to such concerns. that “often inclines a a circumstance City County v. Stone San Fran pivotal argument for court to entertain a (9th Cir.1992) cisco, (ex 968 F.2d Guardia, appeal,” La 902 F.2d first time plaining the court’s election to address a declining particularly when to reach appeal matter first raised on “[tis because argument threatens “a the omitted miscar touching comity may sues on federalism and justice,” riage Krynicki 689 F.2d at 292.5 — denied, sponte”), be considered sua cert. Fourth, prejudice special ineq see no we U.S. —, 122 L.Ed.2d uity plaintiffs. The omitted defense sensitivity We believe that this addition, law-based, not fact-based. appropriately expressed by recogni a frank issue; joined legis the claim parties have that, tion when institutional interests are at in full in ap lative was made stake, the case for the exercise of a favorable court, pellants’ opening brief strengthened, court’s discretion is and waiver extenso, plaintiffs responded to it in both ought applied inflexibly.6 rules to be point during argu oral sides addressed the (7th See, e.g., Wagner, Hoover v. 47 F.3d 845 of unfairness has a defi ment. The absence Cir.1995) (suggesting that “when matters of bearing nite on a decision to overlook this involved, comity ordinary doctrines of type procedural default. See United give way”); Zayas, waiver Jusino (1st Doe, F.2d States Cir. (1st Cir.1989) (discussing F.2d 1989); Singleton, 428 cf. apply court’s reluctance to waiver rules con (discussing importance, at 2877 determin cerning play “a line of defense calls into ing whether to reach the merits of an omit the Commonwealth’s Eleventh Amendment issue, ensuring opposing party ted that the Greer, immunity”); Granberry v. opportunity present whatever “ha[s] cf. legal arguments may 95 L.Ed.2d he have” to the court of (1987) that, Fifth, entirely (explaining appeals). the omission seems when a state fails to deliberate; although raise a nonexhaustion claim in a inadvertent rather than federal ha- regretta withholding argument proceeding, had the beas the federal tribunal none blindsiding judge ble the district and theless effect should consider “whether the inter- context, "miscarriage justice” In this means 6. Our belief that the defendants should not be strictly legisla held to a waiver of their absolute more than the individualized harm that occurs immunity tive recognition in this case is fortified our seasonably whenever the failure to raise a claim primary purpose that a of the immu Rather, or defense alters the outcome of a case. nity prevent intruding is to courts from into ordinarily will courts relax raise-or-waive precincts constitutionally that are reserved to the principle on this basis if a failure to do so Overlooking branch. a waiver in or broadly impor- threatens frustration of some policy der to further this of non-interference is Councilman, right. Schlesinger tant See 420 that, analogous to our settled rule because feder 738, 743, 1300, 1306, 95 S.Ct. 43 L.Ed.2d jurisdiction, al are courts courts of limited that, (holding “jurisdictional when subject jurisdiction absence of federal matter can sufficiently equity impor- [are] and issues ... appeal be raised on even if the issue was not tant,” may appeal courts issues on consider See, e.g., Policyholders raised below. American below); Krynicki, were not raised 689 F.2d at Prods., Inc., Nyacol Ins. Co. v. 989 F.2d (explaining at stake the interest must be denied, (1st Cir.1993), U.S. —, cert. — reason, "legitimate significant”). and For this (1994). 114 S.Ct. 126 L.Ed.2d 650 In both prone courts often are more to make the infre- situations, looking past the waiver has the salu quent exception in cases that involve a discerni- tary ensuring effect of that federal courts do not interest, public prone ble poach and less to do so in preserves that the Constitution reserves disputes private parties. oversight. between to other forms of gress. Country Lake Estates v. comity will be better See Tahoe and federalism ests of [exhaustion]”). Regional Planning Agency, by requiring 440 U.S. ... served 59 L.Ed.2d 401 Here, concern important issue (1979). Nevertheless, legislators state and belatedly, presented but us. It is confronts surrogates enjoy immunity parallel permits proper its resolu- posture in a liability from for their acts. existing and works no record tion on parties. opposing to the prejudice unfair immunity from While is derived feder the issue well result Failure to address law, scope al common it is similar in by a federal in an unwarranted intrusion object immunity enjoyed by federal operations of a state court into the internal legislators Speech under or Debate exceptional circum- legislature. Under these initially recog Clause. the Justices When stances, perceived we follow the course legislative immunity compo as a nized state duty proceed, in the exercise our law, they nent of federal common turned discretion, legislative immunity weigh Speech guidance or Debate Clause Guardia, argument.7 La 902 F.2d anent the contours of the doctrine. See Ten (“Rules procedure are practice Brandhove, 367, 376-79, ney 341 U.S. justice, promote the ends of (1951). devised to 783, 788-90, 95 L.Ed. 1019 La S.Ct. them.”) Helvering, (quoting Hormel v. defeat ter, acknowledged that the immu Court 85 L.Ed. enjoyed by legislators federal and nities state (1941)). essentially Supreme coterminous. See U.S., Court v. Consumers Union of Va. Inc., 719, 732-33, THE OMITTED III. THE MERITS OF Hence, our DEFENSE legislative im exploration appellants’ analysis We bifurcate our munity begins claim with a distillation of defense, discussing gener- first principles constitu extracted federal scope and then al nature and doctrine jurisprudence. tional appel- addressing specific contours of the lants’ claim. Speech Clause has its Debate provision in a found in the roots similar Immunity: Legislative In General.

A. Rights English Bill of of 1689.8 See United Johnson, 169, 177-78, 86 States v. or Debate Clause com (1966); 749, 753-54, any Speech 15 L.Ed.2d that “for or Debate S.Ct. mands House, at 786. Representatives] Tenney, 341 U.S. [Senators either ensure that questioned place.” The Clause is modeled to not be other shall Const, I, is, perform Legislative § Branch will be able to art. cl. 1. The Clause terms, the whole of the without undue interference limited to members of Con- cus) change tactics or a reassess- principal response rather than a 7. The dissent's to this reason overlooking and, sandbagging to be that “elimi- political seems waiver if were ment of costs— any legislators for to raise the occur, nates immunity incentive” this court we have confidence timely a manner. Post at defense in was, and decline to would see it for what is triply reasoning This strikes us as 638-639. sandbagger. discretion in favor of the exercise argument place, In the first can be flawed. Finally, that the dissent is correct if we assume virtually equal all used with force as to omitted today may encourage legisla- ruling and that our defenses; logical waivers its extension is that all immunity tor-litigants for to withhold defenses rigorously be enforced. That view has should evil, reasons, political still the lesser far that is manage- a matter of case much to commend it as inser- preferable in our view to the unwarranted Guardia, ment, but, Krynicki, as La Mercedes- into the state of the federal court’s nose tion illustrate, Hoover, simply Amparo, and Stone it is legislature's tent. not the law. argument place, the underesti- In the second provides: “That the Free- 8. British version appellate capabilities courts. There mates the Proceedings in Speech, and Debates or dom of Parliament, bypass of a deliberate in this case—the is no hint ques- ought impeached to be or not product a defense is the belated tender of the any of Parliament.” Court or Place out tioned in appearance change (coupled in counsel 2, (1689). Mary, Attorney & Sess. ch. II as an ami- 1 Wm. Island's General Rhode 630 by applies Speech to it Fram “the or Debate Clause

legislative function ceded only to a Member but also to his aides inso- v. States Service ers. See Eastland United 491, 502, 1813, Fund, far the conduct of latter would be a 95 421 U.S. S.Ct. men’s (1975). end, protected legislative performed by act if 1820, 324 To that 44 L.Ed.2d himself’). a Member This extension evinces leg individual operates to shelter the Clause that, matter, recognition practical legis- aas distractions and hindrance islators from the expected perform lators cannot be 503, litigation, see id. at 95 S.Ct. at of civil constitutionally allocated tasks without staff 1821, “immunizes suits [them] support. damages,” prospective relief or Con either Union, 731, at 100 at

sumers 446 U.S. S.Ct. say protections This is not to that the 1974. by Speech or afforded Debate Clause are Gravel, They are limitless. not. See 408 protection conferred While the core Although U.S. at 92 S.Ct. at 2627. by speech by concerns or debate a the Clause generously, Court has read the Clause its Congress on the floor of member of either protections purposes. match must See House, the Senate or the see Gravel Unit Eastland, 501-02, 421 U.S. at 95 S.Ct. at States, 606, 625, ed 408 U.S. 92 S.Ct. done, all 1820-21. When is said and (1972), penumbra L.Ed.2d 583 33 immunity absolute conferred the Clause is sprawls broadly. more the Clause This “simply personal pri not afforded for the or application, breadth of which draws its es Congress, vate benefit Members of but to Supreme espousal sence from the Court’s protect integrity legislative process “practical strictly a a rather than literal read by insuring independence of individual Proxmire, Clause, ing” Hutchinson Brewster, legislators.” United States v. 111, 124, 2675, 2682, 99 S.Ct. 501, 507, 2531, 2535, U.S. 92 S.Ct. 33 L.Ed.2d (1979), L.Ed.2d 411 is made manifest in two (1972). ways. thing, prophy For one the Clause’s “generally act laxis extends done a key applies limitation —which of the House one of session its members Congress both to members of and to con in relation to the business before it.” Kilbo gressional pro staffers —is that the Clause 168, 204, Thompson, urn v. “only purely legislative tects activities.” Id. read, pro L.Ed. 377 So the Clause (or legislator at at If se, only speech per tects not and debate but surrogate) his undertakes actions that are id., voting, also see circulation of information only “casually incidentally legis related to McMillan, legislators, to other Doe v. see affairs,” lative id. at at S.Ct. 36 L.Ed.2d “legitimate legislative which fall outside the (1973),participation legis in the work of Eastland, sphere,” 421 U.S. at committees, Gravel, lative see at (citation omitted), at 1821 no in 2626; Tenney, 92 S.Ct. at 341 U.S. at token, By heres. the same the mere fact 378-79, and a host of legislator performs that a or a aide kindred activities. capacity an act in official his does not auto thing, matically For applicabili- protection Speech another because the confer under the ty Gravel, or Debate Clause necessari- or Debate Clause. See ly functions, particular focuses acts or example, on 92 S.Ct. at 2627. For when functionaries, particular pro- Congress actors or press member of disseminates re phylaxis legisla- public, of the Clause also extends to leases the Clause does not performed by non-legislators. tive acts “primari attach because such documents are Eastland, 507, ly informing 421 at 95 legis U.S. S.Ct. at 1823 means of those outside the Hutchinson, (refusing 133, to draw a distinction between the lative forum.” 443 U.S. at So, too, congressional members of a subcommittee 99 S.Ct. at 2687. activities that are political legislative and the subcommittee’s counsel when the more than in nature do sphere and, latter’s legislative sphere, actions were within the of not come within the Gravel, hence, legitimate legislative activity); implicate Speech 408 do not or Debate 618, Brewster, 512, (holding U.S. at 92 S.Ct. at 2623 that Clause. See 408 U.S. at 92

631 ques- inquiry of our lies the At the heart include such activities at 2537. These S.Ct. respect appellants’ acts tion of whether per- “legitimate ‘errands’ fare as familiar parcel legislative “part Rule 45 are constituents, ap- making of formed Gravel, 626, 408 at 92 S.Ct. at process.” U.S. agencies, [and] pointments with Government so, protected. appellants If are 2627. con- securing Government assistance question, we must under- id. To answer Id. tracts.” nature of the acts.9 We can look at stand the ways. in one of two them Immunity: Legislative In Particular. B. sense, general a defen Speaker doorkeep the head dants —the appel merits of now turn to the We nothing or less than to inter er —did more that, common under federal assertion lants’ Where, here, a pret and enforce Rule 45. as law, on the shoals action founders the instant rule, invidiously body adopts a legislative immunity. plain legislative of absolute face, discriminatory pp. see 634- on its infra said, suit, 42 under brought as we have tiffs 635, upon frankly conduct that bears invoking federal § In actions U.S.C. 1983. business, the doc legislative we think statutes, courts customari rights federal civil protect legislative trine of must immunity to legislative ly “equate[ ] legislative do no legislators and aides who ... legislators are entitled which state body by carry out the will of the more than under the Con Congressmen that accorded enforcing part rule a of their official as Union, at stitution.” Consumers Union the U.S. duties.10 See Consumers 733, against this at Viewed 100 1975. S.Ct. Ass’n, Correspondents’ 515 Periodical unsurprising that the courts of backdrop, it is (D.C.Cir.1975) 1341, (holding F.2d 1348-50 historically Speech or appeals have relied on enforcing congressional employees’ actions the doc precedents to define Debate Clause seating regulations im Congress’s internal legislative immuni of state trinal boundaries Clause), cert. Speech or Debate mune under See, e.g., common law. ty under the federal 780, denied, 1051, 46 423 43, of Va., F.2d Schlitz v. Commonwealth (1976); Ak also Davids v. L.Ed.2d 640 see (4th Cir.1988); Colberg, Agromayor v. 45-46 Cir.1977) (dismiss (9th ers, 120, 123 F.2d denied, (1st Cir.), 55, cert. 738 F.2d 58-59 for com ing challenging internal rules action 515, 1037, L.Ed.2d 405 by brought members of assignments mittee (1984); Agosto, Hernandez Berrios v. Colon Representatives Arizona House of Cir.1983) Const, (1st cu (per 89-90 VI, 716 F.2d art. Speaker); R.I. against the cf. riam); DeCamp, 612 F.2d 371- Green to “de authorizing the House (expressly § 7 Cir.1980). (8th Thus, analy our mode of proceeding”). The short its rules of termine legislative immu or Debate it is that the doctrine sis dovetails with Clause, at- nity, Speech or Debate like the cases. Clause attempt cases, reject plaintiffs' to differenti types legislative immu 10. We In certain doorkeeper, Speaker based on function, ate the from the attempting to nity analysis centers legislator. The the latter is not a the fact that by action or more whether an one ascertain that, long as an aide's con teaches case law legislative legislators in na is administrative legislative immunity duct would be covered See, e.g.,Negron-Gaztambide v. ture. -Torres, Hernandez legisla performed conduct were the same (1st Cir.1994) (holding F.3d 27-28 himself, immunity. See the aide shares tor discharge librarian legislators' decision to 1823; Eastland, nature, give and did not was administrative 2622; Gravel, Con 92 S.Ct. at 408 U.S. at however, Here, immunity). we rise to Correspon v. Periodical the U.S. sumers Union of adopted by procedural dealing rule with a (D.C.Cir.1975), Ass’n, 1348-50 515 F.2d dents' legislature for the man as a whole house of the denied, rt. ce Hence, agement we are not of its own business. actions in Petteruti's 46 L.Ed.2d adoption rule with whether the concerned per unsullied were keeping floor the House transparently comprises legislative act—that is delegation express by virtue of an formed authority but, rather, more whether that act is part staff of the House's to him as clear— "casually incidentally auspices to core related” support apparatus, than under Brewster, body whole. No Speaker as a U.S. at and the functions. exigible. more is 92 S.Ct. at 2545. integral against judicial actions “an by taches when solons’ are interference the doctrine id.; part legislative immunity. of the deliberative and communicative of see also Doe, 312-13, processes by participate 2024-25; which Members 412 U.S. at 93 S.Ct. at proceedings Tenney, committee and House with re- 341 U.S. at 71 S.Ct. at 789- spect passage to the consideration and rejection legislation proposed or with re- blush, At first inquiry— the next area of spect to other matters [committed to their lobbyists whether the exclusion of all Gravel,

jurisdiction].” 408 U.S. at perimeter of the House is within the S.Ct. at 2627. legislative sphere appears murky. more — sense, specific might In a more Seating arrangements it be said non-legislators for ar- granted guably that the district court integral relief because are less to the fatally process regulation found Rule to be deficient in lobbying than the dur- (1) face, particulars: ing three on its Rule testimony House sessions. As the trial transgressed by amply demonstrates, however, the First Amendment ban- in this case ning lobbying lobbyists on the floor of the House present while when are on the House (2) session; (even face, the House is in on its Rule floor perimeter), they on the often transgressed the First Amendment become legislative process embroiled banishing perimeter all through from the legislator-ini- either self-initiated or House; appellants And, interpret- tiated if lobbyists contacts. even are ed, applied, and enforced Rule 45 to allow able to perime- maintain stoic silence on the governmental lobbyists ter, onto the presence House floor their legisla- mere affects the denying comparable private while conclude, therefore, access to tive environment.11 We lobbyists. Assuming argument’s regulation sake that of admission to the House relevant, perspective that this narrower comprises integral floor “an part of the deli- question appellants of whether the berative processes by and communicative legislative immunity entitled to would be re- participate which Members in ... House question duced to a proceedings whether the acts respect to the consideration problematic which the district court passage rejection found proposed legisla- legitimate legisla- Gravel, fell within or without “the tion.” 408 U.S. at 92 S.Ct. at Eastland, sphere.” tive 421 U.S. at Consequently, 95 2627. legisla- the doctrine of S.Ct. at 1821. immunity pertains. tive inquiry celeritously

The first area of can We legisla- are not alone in our view of a dispatched. beyond We think it is serious ture’s House as its castle. Periodical dispute enforcing duly legisla- enacted Correspondents’, the court reached a similar prohibits lobbying tive rule which There, on the conclusion. Correspon- Periodical during House floor Association, House sessions is well dents’ which issues credentials within sphere. press galleries Such a restric- Congress, denied necessarily tion affects the manner which particular periodical, accreditation to a Con- the House conducts its most Reports, ground characteristic sumer on the that it had ties functions, e.g., debating vot- advocacy organization. to an Consumers ing. very A rule that colors the sergeants-at-arms conditions Union sued the legislators engage Senate, under which in formal de- among defendants, House and other indubitably part bate is parcel alleging that the exclusion violated the First legislative process, and the acts of House Amendment. The court held that the ser- (whether members) geants-at-arms officials or not elected were immune under enforcing fully protected it are therefore or Debate arrange- Clause because plaintiffs argued, ing 11. analysis. themselves have in the First Amendment See Social Work- claim, context of their ers, First Amendment F.Supp. importance at 539-41. The given opportunity should at least be to sit plaintiffs perime- attach to admittance to the silently perimeter House floor so that, recognition ter indicates their own mere they may through physi- communicate physical presence, they ongoing can influence presence. accepted cal The district court legislative business. argument, and made it a cornerstone of the ensu- seriously misconstrues the Court’s and dissent press in the House seating the ments legis jurisprudence “the Clause be “integral” or Debate galleries were Senate In a at 1350. machinery.” recognition. 515 F.2d To the extent that yond all lative rationale, case, McCormack, the court elaborated later 395 U.S. Powell “immediately seating con explaining that 1944, 23 L.Ed.2d 491 can be read to leg proposed consideration cerned House immunity legislative hold that does not ex arrangements “were in because islation” legislative employees, the tend to Court Congress members tended to shield routinely confined it to its later cases has their House access press members’ use of See, Gravel, e.g., at unique facts. Jones, 738 lobby legislators.” Walker identifying (specifically at 2625 (D.C.Cir.) (discussing Periodi F.2d Kilbourn, Powell, and Dombrowski v. East denied, 469 Correspondents’), cert. cal land, 1425, L.Ed.2d L.Ed.2d 402 S.Ct. (1967), stating that “of and none these seating arrangements at issue adopted simple proposition Like that eases seating ar- Correspondents’, the Periodical immunity congressional unavailable to was by Rule 45 involve the rangements dictated employees because were not committee atmosphere in which very “regulation of the Senators”). Rather, Representatives or Walker, 733 occur.” lawmaking deliberations jaundiced decidedly case law “reflectfs] Moreover, a distinc- if there is F.2d at 930. extending Clause so as to view towards Correspondents’ and Periodical tion between privilege illegal or unconstitutional conduct case, advantage the instant it does beyond that essential to foreclose executive House is the Rhode Island present plaintiffs; and legislative speech control of debate floor, to its own seeking regulate access voting com matters such as and associated galleries located above rather than to proceedings.” Id. We reports mittee floor. legisla why judicial control of see no reason inquiry, now to the third area We come pernicious speech or debate is less tive any, plain- significance, if involving the Moreover, the deci executive control. than appellants interpreted that tiffs’ claim immunity to legislative not to extend sion al- in a manner that enforced Rule 45 as employees in cases such congressional by govern- floor lobbying on the House lowed could be turned on whether “relief Powell mental, lobbyists. This as- private, but proof legislative act or afforded without lobbyists, at its private applied exclusion underlying an purposes motives or level, regulating the involves primitive most act,” impermissible en thereby avoiding by controlling access legislative environment independence.” “legislative croachment the House seating perimeter that at 2625. Under Id. at S.Ct. in a regulation is “done Because such floor. standard, Rule 45— judicial review of House by one of its members of the House session proceedings course of the the tortured it,” Kilb- before in relation to the business unquestionably graphically below illustrates — oum, legisla- is within into judicial intrusion required a substantial sphere. tive Finally, recog we legislative domain. sure, dissenting colleague both our To be out, nize, points that the Court as the dissent protest the House plaintiffs and the im exception legislative has remarked (and differently less private treats by legislators pu munity for the exercise lobbyists, hospitably) than authority the am outside enforcement nitive offends the First differential treatment legislative proceedings. See purely bit of charges lack sufficient These Amendment. Union, 736, 100 Consumers strip away the shield of absolute force suggested, has never at 1977. But Court immunity. legislative held, of a the enforcement much less body adopted by an entire rule body opinion of our We believe that designed govern the conduct views, we adequately rebuts the dissent’s If exception. within that proceedings falls well-ploughed ground. repastinate decline to rule, however, add, that were our belief doWe rumor, (internal 312-13, would be little more than a and the 93 S.Ct. at 2025 citation omitted). quotation and marks Speech easily or Debate Clause would be skirted. reasons, plaintiffs For obvious the chafe at sweep the broad legislative the doctrine of Similarly, plaintiffs’ “as-applied” argu- and, immunity, struggling in to make their unavailing. ments In Eastland v. are United point, they parade marshal a of horribles. Fund, supra, plain- States Servicemen’s typical example, they To cite a raise the alleged tiffs asseverated that “once that specter hypothetical legislature of a that rights may infringed by First Amendment be votes to allow access to its chambers to mem- congressional Judiciary may action the inter- only bers of one race or to adherents of protect rights.” vene to [First Amendment] religion. one 421 U.S. at 95 S.Ct. at 1824. The Court plaintiffs right have the asseveration, flatly rejected warning that march, parade but wrong is on the exception the effort to carve out such an explicitly route. The Court recognized has “ignores speech the absolute nature of the may conduct, that there be some even within protection debate and cases which [the] have legislative sphere, flagrantly that is so broadly protection.” that construed Id. at violative of fundamental pro constitutional 509-10, 95 S.Ct. at 1824-25. The Court add- tections that traditional notions of presented ed: “Where we are with an at- immunity judicial would not deter interven tempt ongoing activity to interfere with an See, Kilbourn, e.g., tion. 103 U.S. at 204 by Congress, activity that and is found to be (leaving open question of whether “there legitimate legislative within sphere, done, may things not be in the one House or balancing plays part.” [First Amendment] no other, extraordinary character, of an for Id. at 510 n. 95 S.Ct. at 1825 n. 16. The which part the members who take in the act put Ninth Circuit bluntly, matters even more may legally responsible”); be held see also writing “nothing that in the First or Four- Tenney, 341 U.S. at 71 S.Ct. at 789-90 teenth § Amendments or in 42 U.S.C. 1983 (Black, J., concurring) (recognizing that the ... justify attempt inject can [an] jurisprudence Court’s “indicates that there is Judiciary Federal proce- into the internal point legislator’s at which a conduct so far dures of a of a legislature.” House state legislative power exceeds the bounds of Davids, 549 F.2d at 123. may personally he be held liable in a suit Act”). brought Rights under the Civil What plaintiffs’ also assert ever be the outer limits of the doctrine public differential treatment private and however, legislative immunity, it is clear lobbyists Equal violates Protection that the instant case is not so extreme as to (or Clause. This assertion does not derail the closely approach) cross even the border. engine legislative immunity. Activities Taking the district findings court’s factual comprise part parcel legisla value, at face applied, may argu- Rule as process protected by tive im ably wrong policy as a matter of and as a munity; is not forfeited sim matter of constitutional law—but it is not ply activities, because the if unprotected, invidiously discriminatory. contrary, To the might plaintiffs violate a constitutional private differentiation between pub- Doe, rights. U.S. at lobbyists appears lic to be based on two 2024-25; Berrios, see also Colon 716 F.2d factors that bear some rational relationship Thus, Doe, at 91. Supreme Court legitimate legislative purposes. First, ruled that or Debate Clause leadership that, explained view, in its legislators’ shields legisla actions “within the private lobbyists the exclusion of from sphere, though conduct, tive even if [the] floor was a useful tool to bolster confi- performed in legislative contexts, other than independence dence integri- would in Second, itself be unconstitutional.” 412 ty.12 consistently the defendants 12. In a debate over a trying motion to reconsider Rule pursu- This isn't to retard Leader, Majority Representative George ing says, their vocation ... It's rule that Caruolo, stated: Because Rule and the defendants’ actions government lob- position that have taken the it, legis- interpreting enforcing fit within the support staff byists act effect sweep generality, doctrine of abso- statistical and of this by giving them neutral lators legis- legislative immunity requires that pending lute relevant to factual information justifications for the continued refuse to entertain the suit. federal courts lation. These lobbyists, found presence of No costs. Reversed. (if asthenic), court to be authentic the district Workers, F.Supp. at see Social follows; —Appendix Dissenting opinion per- sufficiently rational basis afford a appendix.— follows give rise to case does not us that this suade by the Kilboum question reserved the APPENDIX Court.13 that, Thus, ap- insofar the we conclude Text of Rule prohibitions Rule 45’s pellants enforced spared govern- lobbyists, but against private ADMISSION SIXTHLY —OF exclusion, they acted lobbyists from THE mental TO FLOOR protect- legislative sphere and are the within 45(a) following persons be entitled shall by the doctrine judicial interference ed from during the floor of the House to admission to immunity. legislative of absolute Governor, thereof: The the Lieu- the session Governor, State, Secretary of tenant IV. CONCLUSION Treasurer, General, Attorney the General Senate, controller, of the republi- and members In our state go no further.14 We need ex-judges govern- judges and United States system, different institutions can courts, ex-governors, and of the state spheres. Within its court occupy different ment House, of the ex-Speakers of the ex-members domain, of a state legislative branch own Assembly, representatives of the reasonable mea- General is entitled to a government council, staff, legislative legislative director conducting its inter- independence in sure of administration, budget rule, regula- department legislature’s As a nal affairs. revision, officer, charge law it conducts assistant atmosphere in which tion of the and House commit- debating, and clerks of the Senate vot- core its activities — tees, buildings, public state part superintendent and the like —is ing, passing legislation, librarian, and, representatives and the authorized legislative process, parcel of the provided in the rule next press, as hence, subject judicial to a veto. See persons as shall be Eastland, following, and such other at 1824. chamber, lobbyists per government lobbyists to be people’s consider se, quite simply, this is rather, but, by "people [to floor] called peo- public invited. But the business pur- the House for informational members of people's repre- ple be conducted should poses.” Speaker themes, echoed the same Harwood way affect- sentatives. It should not be spokesman describing principal by people registered to advocate who are ed Budget "a dollars-and-cents Office as the state they paid particular positions, are whether guy,” guy.... in contradistinc- a resource factual unpaid.... lobbying, guy.” influence tion to “a Later, explained why Representative Caruolo thought governmental he by the low- is not undermined 13. This conclusion trigger do not the same floor of the House were that these reasons er court’s determination private lobbyists: perceptions as infringement on the to warrant insufficient any government [A]ny general em- officer or lobbyists. rights private See First Amendment here, working building ployee this who is Workers, F.Supp. Such at 541-42. Social government policy— House] on [the State testing, appropriate rigorous in the First Amend- they're paid by government. We are the context, place in the context of is out of ment government. distinction ... Let’s That's the Eastland, immunity. U.S. at trying private groups out here not have n. 16. n. taking we are manipulate this floor while and, express accordingly, no 14. We do not reach votes. on, Clement, vein, district court’s opinion the soundness the House’s the same Edward rulings. coordinator, analyses and did not First Amendment testified that he private lobbyists doing from the same. permit The First Amendment does not Speaker. At to the floor admitted put thumb the scale Speaker, members of the discretion of the way and favor itself in the arena of floor, public may to the House be admitted political speech. respect, With I dissent. however, persons may provided, that all such stay in the House chamber unless majority, Unlike the I would not take the along seated the sides of the cham- remain extraordinary step affording defendants ber, conversation, refrain from and maintain legislative immunity, prevent absolute thus persons of the House. All who decorum ing reaching the court the First galleries by to access the House unable majority Amendment issue. The does so in handicap physical reason of shall be entitled comity, impor the name of federalism and to admission to the House floor. tant naming values to be sure. But those values obscure the issues involved here. (b) Lobbyists including legisla- former state implicate This case does not traditional is lobbyists tors who shall not be entitled to all, sues of “federalism” at such as the limits during admission to the floor of the House congressional powers, on enumerated see person the session thereof. No entitled to , — —, Lopez United States v. during admission to the floor of the House (1995), 131 L.Ed.2d 626 or the thereof, directly the session shall either legislative power relative allocation of be indirectly engage practice lobbying in the governments, tween state and federal see in as defined Rhode Island General Laws — Limits, Thornton, U.S. Term Inc. v. (22-10-2). —, (c) Lounge Admission the House is limited Rather, thorny this case raises issues of the persons to House members and invited and powers constitutional allocation of between accompanied by a House member who will be people represent and those elected to responsible lounge. for them while them, appropriate and of the role of federal persons longer accompanied Such when no resolving courts in such issues. the House member with whom en- tered, lounge. lobbyists shall leave the No Facts lounge shall during be admitted the House the House session. Rule permit any 45 on its face does not lobbyists, government private, to be on LYNCH, Judge, dissenting. Circuit prohibits lobbying the House floor and on the government When the chooses to listen by anyone, private profes- floor citizen15 or only political process to its own voice lobbyist, sional while the House is in session. citizens, by excluding private the voices of It is that Rule which reflects the decision of core First Amendment values are violated. running the House as to the of its affairs. ability At the heart of this case is not the Permitting government lobbyists lobby promulgate the Rhode Island House to rules the floor of the House violates the House business, for the conduct of its own but the Rule. practice, directly contrary defendants’ actual House, adopted by to the Rule of exclud- The defendants claimed that such were not ing speakers they represent gov- practices. court, unless their But the district after trial, express government’s ernment and thus contrary found to the and the defen- While, view, viewpoint. my own appealed dants have not from that factual legitimately House could have closed the determination. amply The record demon- floor sought of its Chamber to all who government lobbyists strates that regu- were work, per- larly plying influence its defendants their trade on the floor after government lobbyists lobby mit adoption on the ostensibly of the House Rule which prohibiting private kept And, House floor while citizens them out. as the district court govern- 15. Under the pro- terms of Rule including certain access to the floor. The Rule nonetheless Governor, ment tary officials the Secre- anyone lobbying. hibits from State, Attorney and the General have Thus, lobbyists sitting who are permitted” found, “flagrantly defendants copies floor see of floor amend- can activities. such opportunity to communi- ments have presents a factual Island House Rhode views, including pertinent cate their informa- country. Un- unique in this setting perhaps tion, virtually impos- It is legislators. bodies, including the many legislative like permitted for those who are not onto sible Island Congress, most Rhode States United language the floor to learn the exact neither part-time and have legislators are because the text of floor offered amendment for six The House nor staff. meets offices outside of the amendments is not distributed year, in a and then or less months Chamber. evenings afternoons three or four actively have lobbied Government starts, rarely the session week. Once positions perimeter from for their both typ- Legislators until it is concluded. breaks They itself. have seats and the floor just in for the session ically time arrive government officials done so on bills which Legisla- immediately conclusion. on its leave supported private groups which have than desks on desks other their tors have no opposed. bills often have Those concerned no there is of the Chamber. Often the floor great public For matters of debate. exam- for direct communi- place but the floor other topic public funding of ple, the abortion legislators, apart from dis- cation with Agents up by legislature. was taken pri- capacities turbing legislators office, supported which the Governor’s they live or work. where vate citizens legisla- funding, the floor and talked to sat on lobbyist from the Rhode Island tors while the are often introduced to bills Amendments Inc., Committee, Right Life which They are State to on the floor. first time the funding, relegated to the opposed such was being to the before often unavailable balcony. Similarly, Attorney the General of only in the are available and introduced a bill to Rhode Island introduced reinstate being introduced. after Chamber House penalty and he and his staff were the death close of the Frequently, especially toward the bill, speak- during on the floor debates session, amend- votes on such an the House group lobbyists ing legislators. Private with day, within on the same and sometimes ment bill, including those from the minutes, opposed to the being introduced. of the amendment Affiliate of the American Civil Rhode Island the perimeter of the the floor Around Union, only watch from the could Liberties eighteen approximately are Chamber House precluded from the floor balcony and were been filled of those chairs have Some chairs. lobbying. from and lobbyists daily by government basis on the duality characterized influ- The same The remainder since Rule 45 was enacted. encing on welfare reform. Govern- of bills public. Private of the members filled lobbyists Department Hu- ment balcony seating. relegated lobbyists are present for floor debates man Services were which would restore perime- on an amendment sitting officials Government program cut from Assistance advantage General Public and use a ter have decided seats Department fa- budget. The the Governor’s communicating legislators and col- with Lobbyists program. of the Indi- vored elimination disseminating information. lecting of Social National Association from the legislators frequently walk over vidual (NASW), eliminating opposed which government speak with the lob- Workers perimeter to no There was program, were excluded. lobbyists legisla- byists. send notes These the time in the session between speak break indicating that would like tors and it was voted introduced legis- amendment was they get attention of individual an amend- Similarly, in debate over upon. People seated by signalling lators them. lobbyists for the program, ment to an AFDC floor more along perimeter of the receive attempt- seats Department perimeter concerning floor than others information vote, while a NASW amendments, ed to influence which are distributed ineffectively balcony tried lobbyist in the they are introduced. legislators when view, judicial convey position waving foreclose a determination NASWs constitutionality practices. hands. Prison-related bills received the of the defendants’ challenged practices do Department same of Corrections not constitute treatment. legislators “purely legislative officials the floor with kind of activities” that were on traditionally triggered protections lobbyists have during debate while ACLU who legislative immunity Raising opposed Department’s position bar. watched balcony. necessary bar in this case ineffectively to vindicate from the There were the vital interests that the doctrine was in- numerous other instances where the Gover- Office, Police, Depart- safeguard, tended to nor’s indeed undercuts the State Development, Banking those interests. ment of Economic Department, and Insurance the Fire Mar- present This ease does not the kind of shal, the General Treasurer’s Office and the exceptional circumstances that would even lobbyists Department Regulation of Business permit legis consideration of the defendants’ spoke directly legislators on the floor with immunity arguments, lative ar because those regarding pending legislation.16 guments were not raised in the district court. Eastland v. United States Servicemen’s Cf. advantages given govern- Nor were the Fund, 510 n. lobbyists lobbyists ment limited to from state (1975) (“[T]he 1825 n. 44 L.Ed.2d 324 government lobbyist agencies. The for the Speech or Debate Clause has never been Mayor of Providence was on the floor of the broadly legislators read so are ‘absolved every day, frequently conversing with responsibility filing a motion to legislators. spoke legislators She ” (citation omitted)); dismiss.’ Powell v. court, gun proposed issues as varied as a McCormack, 505 n. supply, funding Providence water for the 1956 n. city. Here, hardly an ob doctrine — Lobbying by legal concept scure never raised as a —was place among times took the seats of the liability, defense to even when the distin legislators, knowledge even with the guished trial court was solicitous about mini Speaker. example, For when House was mizing litigation the intrusion of the into the session, lobbyist in the Providence was on a functioning legislature. of state Defen telephone cellular in and walked between the dant attorney Harwood is himself an seats, legislators’ passing rows of the ably both represented defendants were in the telephone House, certain members district court. I see no reason not to hold spoke who telephone. listened and into the Single defendants to their waivers. See telephone eventually passed was to the 106, 121, Wulff, ton v. 96 S.Ct. Speaker, listened, spoke who also and chuck- 2877, 49 (reversing L.Ed.2d 826 court Only led. when a of the House member appeals deciding a civil case for issues objection lobby- raised an did the Providence court). argued not in the district ist move to the outer aisles. But she was not issue, reaching immunity major- asked to leave the floor and was not asked to ity up virtually proposition sets a no-lose for speaking legislators. refrain from to the legislators. Legislators certainly cogni- zant of perception raising that an Immunity immunity defense is tantamount to a claim of I respectfully disagree being Thus, with the decision of raising above the Constitution. my very colleagues able legislative immunity to afford absolute a defense of at the out- legislative immunity litigation to both of the defen- political set is not without its waived, dants. Not was majority’s approach, the defense but costs. The per- which raised, properly even if it trial, had been the doc- mits the defense to be raised after not, legislative immunity my virtually trine of does eliminates incentive to raise it ability government employees example, during 16. The pay to sit in debates on incentive for clerks, perimeter the few seats have been used to court two court clerks sat in the aisle personal advance their interests as well. For seats. immunity, a defense of an dants never asserted produce If the trial were sooner. fully question outcome, the action tried before legislator-defen- was unfavorable put Legisla- district court. ever was immunity appeal, simply assert dant could already Deciding the have testified. tors the defense failure to raise that the claiming question constitutional entails merits there inadvertent. Because had been earlier upon additional burden inconvenience no rarely direct evidence counter bewill ignore the de- the defendants. The need inadvertence, because a claim waiver order to reach immu- fendants’ immunity will legislative of absolute defense is, result, greatly nity issue as a reduced.17 law-based, potentially dis- always present a magnitude, question of constitutional positive waiver, overlooking the defendants’ Even majority’s appeals applying the a court however, I that their claim of abso- believe inevitably consider almost approach would immunity Supreme legislative fails. The lute defense, the first though raised even if a case law demonstrates even Court’s appeal. time on rights individual could asserting suit se, challenge per act brought to a Moreover, that one to the extent immunity by legislative if it it is not barred immunity is underlying legislative rationales against leg- merely prospective seeks relief against legisla- litigation prevent vexatious carrying out employee for his role islative (as tors, where is undermined rationale enforcing legis- of that same directives here) goes through legislator-defendant precisely is what the plain- lative act. That only on the defense trial and raises the entire tiffs seek here. protection af- purpose of the appeal. “The practices that immunity for There is no judicial legislators is not to forestall forded legislative activities. See simply relate but to insure action review McMillan, 306, 313, Doe v. or hin- not distracted from legislators are (1973) (“Our 2018, 2025, cases L.Ed.2d 912 performance of their in the dered everything ... perfectly apparent make to defend by being called into court tasks regularly legis- is not a [legislator] may do Powell, 395 U.S. at their actions.” protection lative act within the legislative immuni- 1955. Denials of S.Ct. at Clause.”); States v. Brew- or Debate United immediately appealable because the ty are ster, liability simply a defense to (1972) (“In has this no case L.Ed.2d 507 immunity from suit. Helstoski but also protecting ever the Clause Court treated Meanor, legislative pro- relating to the all conduct Appellate courts 61 L.Ed.2d original; omit- (emphasis in footnote cess.” where to vindicate interest are unable 503, Powell, at ted)); at 89 395 U.S. S.Ct. trial to raise the wait until after defendants not, immunity of does (“Legislative 1954 id. thus immunity defense. See There legislative course, of judicial review bar all ensuring systemic interest in greater abe acts.”). Moreover, gen- [legislators] “[t]hat early. interest is raised that the in their perform certain acts official erally necessarily capacity [legislators] as does immunity protects can- Much of what in legislative acts nature.” make all such the defen- here. Because not be remedied timely only plain defense was not error where overlook waiv if one could defendants' Even Investment, raised); Municipality S.A. v. er, immunity absent Javelin issue we could not reach (1st Cir.1981) Ponce, 92, 645 F.2d 94-95 court. showing plain the district a of error of claim). (same, sufficiency-of-evidence Olano, for a v. — States United Cf. question opinion of —, —, 1770, 508 Whatever difference 123 L.Ed.2d allow, 754, Saccoccia, immunity might legislative district (1993); F.3d States v. 58 United immunity to de Cir.1995). such (1st analysis to afford does court's "failure" error Plain 790 error, clearly See, sponte was not e.g., fendants sua Consolo v. apply the civil context. miscarriage gross 791, (1st Cir.1995) produce (jury certainly a did not George, F.3d 793 58 fairness, integrity seriously or justice affect the objection lodged subject which no to instructions Kendrick, proceedings. reputation judicial review); public of the only plain Lewis v. error to U.S. at —, Olano, at 1779. 949, (1st Cir.1991) (district S.Ct. — 113 See court's F.2d plain error. There was grant qualified reviewable no failure States, 606, 625, persons Gravel v. United 408 U.S. 92 mission or exclusion of classes of (1972). 2614, 2627, integral 33 L.Ed.2d 583 from the House floor constitute “an S.Ct. Rather, part majority agrees, the of the deliberative and as the doctrine communicative processes” legislative immunity protects “only purely legislature. Certainly, of the Brewster, practices part parcel are not legislative at activities.” 408 U.S. 512, 2537; legislative process in the same fashion as are Sundquist, Chastain v. S.Ct. (D.C.Cir.1987) 311, legislative the kinds of acts to which the (quoting 833 F.2d denied, Supreme previously has Brewster), 1240, leg Court extended cert. 487 U.S. resolution, immunity; e.g., voting islative for a 2914, 101 L.Ed.2d 946 S.Ct. 168, Thompson, bourn 103 U.S. Kil protection The basic doctrine 204, (1881),making speech 26 L.Ed. 377 legislative immunity attaches to actual floor, Johnson, United States Gravel, “speech by legislators. or debate” 169, 749, 755, 86 15 L.Ed.2d 681 408 U.S. at 92 S.Ct. at 2627. The Su- (1966),circulating legisla documents to other preme Court has made clear that tors, McMillan, 412 U.S. at 93 S.Ct. at [ijnsofar [legislative immunity] is con- gathering or the of information for a matters, strued to reach other must Eastland, hearing, committee Dombrowski v. integral part be an the deliberative and 82, 84, 1425, 1427, processes by [legis- communicative which (1967) curiam).18 (per L.Ed.2d 577 participate lators] in committee and House Brewster, 408 U.S. at 92 S.Ct. at 2539 proceedings respect to the consider- (“In every Court, case far thus before this rejection passage proposed ation and or Debate Clause has been limit legislation respect or with to other matters clearly part ed to an act which was legislature’s jur- [within the constitutional added)). legislative process.” (emphasis isdiction], enough, majority It is not suggests, as the Proxmire, Hutchinson v. practice challenged here “affects” way legislature conducts its affairs or Gravel, (emphases original) (quoting very legis- “colors the conditions under which 2627). majority 92 S.Ct. at lators” do In their work. Hutchinson v. dispute does scope this definition of the Proxmire, Court, Supreme refusing immunity. legislative immunity extend to certain state- important recognize It is plain- that the release, ments press made a senator in a enjoin tiffs here seek Rule 45’s en- acknowledged ability that a senator’s view, my legislative immunity forcement. make such arguably statements was “essen- does not reach enforcement of the tial functioning of the Senate” and Rule because such enforcement is not “an conceded that such statements affected the integral part of the deliberative commu- environment. 443 U.S. at processes” legislature. nicative of the state (“We may 99 S.Ct. at assume course, regulation Of of the admission published that a Member’s statements exert to the House’s floor has an some influence on other votes in the Con- important impact process— gress relationship therefore have a that legislative what this lawsuit is about. But it the process.”). deliberative believe, usage, Yet, belies common say I to that the Court legislative concluded that no practices the defendants’ relating immunity to the ad- to such attached statements.19 In challenging any debated, 18. prove An action spoke, of these immunized [defendant] "how how he voted, required proof, activities would have anything as this case he how he did in the chamber not, committee”). legislator’s does of the substance of a act— or in voted, e.g., legislator how the or the content of a speech 116, or the content of communications to oth- Similarly, Floyd, in Bond v. 385 U.S. 87 19. Gravel, 618-21, legislators. 339, er (1966), See 408 U.S. at 92 Supreme S.Ct. distinction); (drawing S.Ct. at 2623-25 see go challenging Court allowed a suit to forward Brewster, also grounds at 92 S.Ct. at 2544 on First Amendment the constitutionali- (holding bribery that ty legislative act of was preventing not immune of certain resolutions prosecution seating if Georgia legislature did not need to of Julian Bond in the review,” subject judicial had, past, lution so, in the was that doing it observed explained, “insofar as execution only Court what is “carefully distinguished between rights.” Id. impinged on a citizen’s legisla functioning to the due ‘related legis constitutes the and what process,’ Kilbourn, tive ninety years in Pow after Some immunity under process entitled McCormack, lative the Court reaffirmed the ell v. at Id. injunctive Debate] Clause.” [Speech relief principle that a suit for added; (emphases employee citation in an brought against legislative at 2686 S.Ct. omitted). Here, challenged enforcement-type capacity is not barred the defendants’ 504-05, immunity. at legislative to the due perhaps “related U.S. while practices, There, that the Court held simply at 1955-56. process,” S.Ct. functioning legislative entitled to congressmen were the defendant process” legislative “constitute[ ] do immunity for their unconstitution legislative trigger necessary to absolute the sense Clayton Powell as a to seat Adam al refusal v. immunity. United States legislative Cf. Representa House of of the U.S. Member Cir.1994) (de (3d McDade, 28 F.3d Ap at 89 S.Ct. at 1956. tives. id. immunity acts legislative for clining to extend Kilboum, teaching the Court plying a neces which, [they comprised] “although legisla on to hold the doctrine went performance of for the sary precondition judicial immunity determi tive did not bar a “an acts,” to be not be said [legislative] could plaintiffs’ constitution nation of the merits Congress’s part of deliberative integral claims, claims to the extent those al— denied, processes”), cert. communicative employ against were asserted —, 131 L.Ed.2d 115 S.Ct. merely responsible for had been ees who resolution, namely, the enforcing House’s Arms, Clerk, challenged practices and the Door Sergeant That the at defendants’ at 1955- necessary to at keeper. in the sense See id. “legislative” those officials added immunity plaintiffs’ 56. The Court trigger immunity assert could not injunctive relief is not barred— for claim “acting simply had been ground that door clearly as it names the House most of the House.” pursuant express orders by a line of venerable keeper established —is The Court at 1955.20 Id. at authority. In Kilbourn Supreme Court judicial power to thus “reasserted Powell (1881), 168, L.Ed. 377 Thompson, 103 U.S. validity legislative actions determine the members of the found that the Court in an action rights” on individual impinging were entitled Representatives against brought relief prospective for arising from immunity in a lawsuit charged imple with legislative functionaries had House resolution that unconstitutional an activi allegedly unconstitutional menting the plaintiff. How the arrest authorized Gravel, at 2624. ty. 408 U.S. at go ever, suit permitted the the Court Sergeant reasoning at applied House’s against had similar forward The Court Eastland, 82, 87 Arms, merely executed unconsti who had Dombrowski cu (per As L.Ed.2d See id. tutional arrest warrant. S.Ct. In that riam), shortly Powell. later before Supreme summarized decided Court allegedly illegal case, could arose out “That the House which holding of Kilboum: leg defense of raid, ar the Court sustained an unconstitutional impunity order with respect to the Chair who islative for those protection afforded no rest the U.S. Senate Gravel, man of subcommittee the arrest.” made issuing subpoenas Judiciary Committee “reso- at 2624. The unconstitutional 92 part official enforcing as a of their [Rule 45] response political passed that had been apparently dis- in Con by decision that had To the extent Bond duties." statements States, legislators. pleased his fellow v. Periodical Inc. United sumers Union of (D.C.Cir. Ass'n, Correspondents’ 515 F.2d therefore, disagree, with the ma- respectfully I 20. 1975), contrary proposition, I for a be read can immunity legislative suggestion jority's to follow it. would decline legislative "who do body by protects any officials doctrine carry will of the out the no more than information, gather but declined to extend the extent plaintiffs’ section 1983 counsel, immunity sought prospective to the subcommittee’s who action against relief allegedly participated in Virginia had the execution of in capacity, Court its enforcement illegal raid to obtain the same informa- legislative immunity the doctrine of did not tion. See id. at 87 S.Ct. at 1427. Dom- bar the suit. Id. at 100 S.Ct. at 1977 (“[W]e supports principle browski thus that a Virginia believe that the Court and its legislative employee justice sued for his role in car- properly chief were held liable in their (immunized) rying executing legis- capacities.... out or enforcement For this reason pri- Virginia lative directive be answerable to a Court and its members were rights proper vate citizen whose have been violated. in declaratory defendants a suit for Gravel, 619-20, injunctive relief, just See 408 U.S. at 92 S.Ct. at as other enforce- were.”). agencies 2624-25. ment officers and recently, Supreme Virgi- Supreme More in Court Court’s decisions in Kilb- oum, Powett, nia v. Consumers Union the United Supreme Dombrowski States, Inc., Virginia 64 Court establish that the doctrine (1980), Supreme L.Ed.2d 641 legislative immunity Court was judicial does not bar a presented brought with an action under 42 determination of plaintiffs a constitutional § asserting U.S.C. a First Amendment claim to the extent that the claim is one for challenge against attorney disciplin- injunctive certain relief and against is asserted a ary Virgi- rules that had been enacted simply defendant enforcing for his role in a Supreme plaintiffs sought nia legislative Court. The directive that affects individual relief, declaratory injunctive Gravel, naming rights. at Virginia (among Court and its Chief Justice plaintiffs’ S.Ct. at 2623-25. The action others) Supreme as defendants. The clearly Court here —most as it names the House Court, Virginia pro- concluded that in doorkeeper comprises precisely such a — pounding rules, disciplinary in had acted claim: doorkeeper being solely is sued (not judicial) a capacity. The Vir- for his role in enforcing challenged exclu- ginia Court was held entitled to absolute sion of all but from legislative immunity pertaining for acts lobbying floor, on the House and the claim rules, disciplinary e.g., enactment of the only enjoin seeks such enforcement. The refusing to comport amend the rules to doorkeeper distinguishable defendant is not 733-34,100 the Constitution. any See id. at meaningful way doorkeeper Supreme 1975-76. The Court further ob- claim whose of absolute immunity served, however, Virginia per- rejected Powell, that the Court was in Powell. See formed not role with re- conclude, 89 S.Ct. at I 1955. would spect rules, disciplinary therefore, to the but also had doorkeeper the defendant authority. See id. at 100 not entitled to assert the defense of absolute enforcement S.Ct. at 1975. The Court concluded that legislative immunity,21 I and would accord- Moreover, the defendants’ actions in “judge restrict- 545. A probation who hires or fires a ing lobbying access to the floor and can be meaningfully distinguished officer [could not] (rather legislative) viewed as administrative than attorney from a district who hires and fires assis nature, immunity and thus not entitled to attorneys, tant district or indeed from other ground. that additional Because responsible Executive Branch official who is serves, defined the functions it Forrester v. making Id.; employment decisions.” see White, Hernandez-Torres, Negron-Gaztambide also (1988), legislators L.Ed.2d 555 even themselves (1st Cir.1994) (legislators protect F.3d are not immune for actions taken in an adminis- by legislative immunity ed for administrative act Forrester, capacity. judge trative a state court — librarian), denied, dismissing cert. enjoyed judicial immunity no for the administra- —, demoting dismissing probation tive acts of analysis, Under this functional though "may officer. quite important the defendant Even the acts have been doorkeeper’s determining providing partic- acts in necessaty whether condi- adjudicative system," tions of a sound ular individuals were the deci- authorized to enter the nature, underlying generic sions the acts were chamber are of an “administrative” na- intrinsically adjudicative peculiar meaning ture Negron-Gaztambide. within the judicial function. See id. at 108 S.Ct. at See id. These acts constitute determinations con- here question presented the constitutional the First of a determination proceed to ingly independence of the poses no threat presented.22 question Amendment legislators.23 state Rhode Island plaintiffs’ constitu of Reaching the merits Historically, privileges of the the injury to claim, does no importantly, tional a need to emerged from Debate or Clause legisla by the protected interests classic the intimi legislature from executive protect the law The common immunity doctrine. tive Rein- J. and harassment. Robert dation enjoy is “simi legislators immunity state that Silverglate, Legislative Harvey A. & stein accorded rationale to that origin in lar Powers, 86 Separation Privilege and the of Debate Speech or Congressmen under (1973). Indeed, 1113, 1120-44 Harv.L.Rev. Virginia, Supreme Court Clause.” of underlying Speech or Debate purpose of actions 732, 100 at 1974. The Clause, is, speech critical of to enable that debating, speaking, of the House members the First also underlies government, Rhode Island before the voting on matters speech. of free protection Amendment’s Cf. is no challenged. There being are not Amar, Rights as a Bill Akhil R. The of liberty of the “fullest infringement on (1991). 1131, 1151 Constitution, Yale L.J. members, this does nor speech” of House the de permit indeed to It be ironic would House mem protect to the need case raise to bene those immunities fendants invoke one, every of resentment “from the bers the executive between fit communications of whom the exercise powerful, to however lobbyists) legis and the (government branch Tenney offense.” liberty occasion branch, of communica to the exclusion lative Brandhove, Judicial groups private from citizens. tion omitted). (citation 786, 95 L.Ed. 1019 immunity, Madi as James illumination of the by said, guided “the reason must be son is not immunity doctrine The necessity privilege.” Letter legislators for protection for meant (June 6, Philip Doddridge Madison James rights benefit, support the “but to own their Writings 1832), 4 Letters and Other representa- enabling by people, reason and That Madison James their office functions to execute tives credit this not necessity court dictate or crimi- prosecutions, civil fear without of this facts immunity defense (citation 71 S.Ct. at Id. at nal.” case. Brewster, omitted); see also (“The immunities at 2535 Amendment First not written were Speech or Debate Clause by the personal simply Amendment violated Is the First the Constitution into admitting government Congress, practice of of Members defendants’ private benefit lobby while House floor lobbyists onto the integrity of the protect but by govern- employed excluding indi- those independence of insuring the process believe, answer, I ment? The merits of Reaching the legislators.”). vidual legislative floor. There exclusion, lobbyists from the private no different ceraing admission whether, time, decide, if the at this might need to made is no be than nature those aspects of Rule participate in other Speaker entrusted did branch official in the executive enforcement, legisla- press confer- controlling to a Governor's he would entitled 45's access indeed, or, standing doorkeeper brought against outside him action ence in an tive doorkeeper's building. acts privately-owned Relief solely in such enforcement. for his role legislative decision- any peculiarly doorkeeper's do not entail of the Rule enforcement against the case, were al- making those decisions neces- the relief may provide plaintiffs with all —in adoption of Rule ready in the House's embodied sary. administering doorkeeper acts of 45. The seeking persons access to particular Rule 45 (9th Cir.1977), Akers, 549 F.2d 120 23. Davids legislative, but are thus the House chamber defen- proposition that the support the does not im- absolute not entitled to administrative and constitutional practices are immune from dants' munity. reached the scrutiny. there in fact court plaintiffs’ First scrutinized shows, merits and defendant record far as the 22. As claims, wanting. them but found Amendment participate exclusion Speaker in the did not defendants have violated the First Amend- recognized by court, As the district approach ment. taken this Court in AIDS Ac- Massachusetts, tion Committee Inc. v. Several interrelated and fundamental First Bay Transportation Massachusetts Authori- Amendment interests are offended (1st ty, Cir.1994), 42 F.3d 1 apt. is more practices. defendants’ The defendants have This court held that government where the plaintiffs’ political speech excluded and proprietor property was the of the it was discriminatory have done so in a manner. inappropriate analyze to under the “relative- practices The defendants’ have resulted in ly murky” public forum doctrine a discrimi- discrimination, viewpoint- and content-based natory government practice affecting First favoring government speakers govern- rights. and Amendment Id. at 9. At issue in viewpoints excluding non-govern- ment and AIDS Action was Committee the MBTA’s practice refusing, speakers non-government grounds ment view- that its policy any sexually was not to run points. suggestive speech posed by The restrictions advertisements, display to condom practices are advertise- severe their effects. De- subway cars, trolley ments its while it discriminatory practices fendants’ per- also was at running the same time sexually sug- government mit power unchecked to act gestive movie advertisements. This court interest, in its self than in rather the interest analyzed rejected government’s of the citizens. These effects strike at the claim practices viewpoint were neu- Amendment, heart subject of the First tral, finding government practice gave practices defendants’ highest level of impermissible rise to an appearance of view- scrutiny, scrutiny defendants cannot with- point discrimination. Because viewpoint practices stand.24 Those narrowly are not disposed case, discrimination there interest, compelling tailored to meet a state was no need for the court to determine pass and therefore fail to constitutional mus- public whether the cars were a forum. For ter. reasons, similar I do not use conventional “public terminology. forum” parties The have the First framed Amend- ment issue in terms whether the The speech discrimination in practiced by Chamber floor ais forum.” But the “public the defendant must be against understood “public doctrine, problematic,25 forum” itself those interests that the First Amendment particularly is ill-suited to this ease. It is repeatedly has recognized been as serving. peculiar attempt to fit the doctrine to the The First Amendment reflects a distrust of floor of body chamber of government making judgments about Indeed, work. very language “public speech worthwhile, what is particularly forum” masks the issues stake. political speech where is involved.26 A cen- 24. apply height- (Blackmun, J., There are additional reasons to dissenting). L.Ed.2d 567 "Be- scrutiny. ened issues, 4 of United yond footnote States v. confusing the an excessive focus on Co., 144, 152, Carotene Products public forums, coupled character of some 778, 784, (1938), oft-quoted 82 L.Ed. 1234 inadequate precise attention to the details of language, for possibili- other the Court noted the expression, speech restrictions on can leave ty that: cases, inadequately protected in some while un- legislation political pro- which those restricts duly hampering state and local authorities in ordinarily expected cesses which can be Tribe, others.” Laurence H. American Constitu- bring repeal legislation about undesirable (2d (footnotes 1988) tional Law 992-93 ed. omit- [might] subjected exacting judicial more ted); Nowak, see also Daniel A. Farber & John E. scrutiny general prohibitions under the Misleading Analysis: Nature Public Forum Fourteenth Amendment than are most other Content and Adjudi- Context First Amendment types legislation. cation, (1984). 70 Va.L.Rev. practices analogous defendants' just legislation. Ely, restrictive See John H. government’s 26."An insistence that burden is Democracy and 76-77 Distrust greatest political regulating speech is based best, At on a government’s sensible view of forum doctrine is an “ana- incentives. It lytical setting principles shorthand for is in this likely have is most guided the acting Court’s be biased mate, venal, illegiti- decisions.” Cornelius v. or to be on the basis of Legal Fund, NAACP partial and Educational considerations. Govern- Defense Inc., rightly ment is distrusted when it regulating excluding the practices in The defendants’ First Amendment tral commitment lobby- government, but not private, voice unin- should be public issues “debate on imposes a severe the floor ists from New York hibited, robust, wide-open.” Lobbying aims political speech. burden on 264, 270, Sullivan, 84 U.S. 376 v. Times Co. it at- legislators; of influencing the votes at (1964). “The 710, 721, 11 L.Ed.2d 686 S.Ct. political the the outcome of tempts to affect polit- for free opportunity maintenance of “at the heart of speech is processes. Such government that the end to ical discussion First protection.” First Amendment’s people the mil responsive to may he of Bellotti, 435 U.S. Bank Boston v. National of by lawful may changes be obtained that 1415, 1407, 707 765, 776, 55 L.Ed.2d 98 S.Ct. means, to the securi- essential opportunity (1978). lobbying involves specifically, More principle Republic, is a fundamental ty of the to have attempt by groups of citizens Stromberg v. system.” constitutional of our persuade legisla- representatives their hired 532, 359, 369, 51 S.Ct. California, U.S. 288 to ways that are favorable legislate in tors to added). (1931) (emphasis 536, 1117 75 L.Ed. repre- “In a of those citizens.27 the interests “ ‘[Tjhere agreement this, universal practically democracy is as these sentative Amend- act on of the government of behalf major purpose [the First] of branches a extent, and, very large the whole people a of protect discussion free [is] ment upon the depends affairs’_ concept representation of con- speech ‘For governmental make their wishes ability people than self-ex- is more cerning public affairs representatives.” Eastern to their known self-govern- of the essence pression; it is Motor v. ” Railroad Noerr Presidents Conf. Freeman, 191, 504 U.S. Burson v. ment.’ 137, 523, Inc., 127, 81 U.S. S.Ct. Freight, 365 5 196, L.Ed.2d 119 112 S.Ct. (1961); Meyer v. 529, see also 5 L.Ed.2d 464 Alabama, (1992) U.S. 384 (quoting Mills v. 1886, 421, Grant, 414, 108 S.Ct. 486 U.S. 1437, 1434, 484 218, L.Ed.2d 214, 16 86 S.Ct. (1988) (“[B]oth the 1891, 425 100 L.Ed.2d Louisiana, v. and Garrison change political for expression of a desire 215-16, 209, 74-75, 13 L.Ed.2d 64, 85 S.Ct. pro- of the merits a discussion (1964)). expression is at Political 125 political speech.”). change” are “core posed by the First rights protected of center here, impos- challenged practice, as aWhere Bork, id.; Neu- Robert H. Amendment. See political expression, a severe burden es Amendment First Principles and Some tral strict practice with must courts review (1971); Problems, 1, R. 29 Cass 47 Ind.L.J. scrutiny. Burdick Takushi Cf. 2063, Now, 2059, 434, 119 L.Ed.2d Sunstein, 428, 59 U.Chi.L.Rev. 112 S.Ct. Free (1992).28 (1992). 245 255, 301 collectively interests; can which citizens portant means might speech harm its own legislature, lob known their wishes own make speech political, is at issue when the coverage of the bying may fall under itself always It follows at are almost stake. interests at at See id. government Petition Clause. premise distrust of of 529-30; Nofziger, 878 F.2d United States v. when the strongest politics is at And issue. when (D.C.Cir.) prece Supreme (reading Court 453 strongest, of the burden premise of distrust lobbying, "insofar Sunstein, proposition that for the De- dents highest.” R. Cass justification is protected self-representation,” is it constitutes Speech 134 as mocracy Problem Free and the of right petition), cert. by the First Amendment (1993). denied, Amar, (1989); Bill generally see L.Ed.2d of only as may protected not Lobbying 27. part of (suggesting that Rights, supra, 1155-56 at right to speech, an exercise but also as guaran purpose Clause was Petition explicitly right, embodied petition. That a means of inform have would tee that citizens Amendment, right encompasses of citi- First concerns). ing representatives of their needs and repre- with their zens communicate Presidents Railroad Eastern sentatives. See Conf. subject to a lower standard Inc., Lobbying is not Freight, U.S. (1961) Noerr Motor representatives do it (stating protection if the hired even the State profit. Board Trustees ability a petition protects "the right Fox, S.Ct. N.Y. v. Univ. 3028, known to people their wishes to make 106 L.Ed.2d lobbying an im- representatives”). As constitutes (First private lobbyist subject The restriction is government Amendment forbids “dictating subjects persons about which scrutiny severely to strict because may speak speakers and the who ad- political speech, burdens but also because it issue.”). dress lob- viewpoint discriminates both on the basis of byist preference applied here fails that Burson, and content. See test. 1850. The restriction constitutes dangers practices the defendants’ content-based discrimination because it tar plain.30 By simply excluding all voices gets particular speech. kind of It is also government save the lobbyists, voices of viewpoint-based discrimination because ex government easily could particular messages. cludes a set of The suppress support minority party for a speaker-based result is a ban and content- cause, unpopular an or ... exclude the gives advantage gov based bar that expression points of certain of view from viewpoint.29 ernment’s The discrimination marketplace of ideas. practiced by permits expres defendants thus City Members Taxpayers Council v. of “particular message sion of by favored Vincent, 789, 804, 104 2118, 466 U.S. S.Ct. for government” speech. and all stifles other (1984). 80 L.Ed.2d 772 These effects Broadcasting System, See Turner Inc. v. plainly illegitimate are “so they that would —FCC, —, —, S.Ct. immediately invalidate rule.” Id. 2458, 129 (1994); at —, L.Ed.2d 497 id. 114 “[Rhode ... authority Island] has no li (O’Connor, J., S.Ct. at 2477 concurring in cense one fight side of [the] debate to free (“The part dissenting and part) in First style, requiring while the other to follow just govern Amendment does than more bar Marquis Queensbury of Rules.” R.A.V. v. intentionally ment suppressing speech from Paul, Minn., City 377, 392, St. 505 U.S. of of disapproves. generally which it It also 112 S.Ct. 120 L.Ed.2d 305 prohibits government excepting from cer hypothetical. Nor is this risk The Rhode speech regulation tain kinds of from because singular Island in the oppor- lack of valuable.”). speech especially it thinks the tunity private direct, for citizens to have effective legislators. communications with practices The defendants’ thus cannot be ability The directly to communicate is a con- they narrowly constitutional unless are tai- advantage. siderable The situation created compelling lored to achieve a state interest. private lobbyist ban is that akin ato at-, Id. (“[Sjpeaker- at 2467 S.Ct. monopoly single over a channel of communi- cation, scrutiny based laws demand strict when government where the has discrimi- providing reflect nated in preference access to that Government’s for the channel and also determined the content of what flows speakers substance of what the favored have through the channel. (or say aversion to what the disfavored speakers say).”); have to First Nat’l Bank Against panoply dangers31 of must be of Boston, 435 U.S. at 98 S.Ct. at 1420 measured the interests attributed to the de- non-governmental viewpoint may 29. That the Sims, process. Reynolds the decision v. varying viewpoints fact be an entire class of (1964); does 12 L.Ed.2d 506 Har- Elections, not make viewpoint per the restriction Virginia less Bd. of Rosenberger (1966); discrimination. See v. Rector and Carrington L.Ed.2d 169 Va., —, —, Rash, Visitors the Univ. — 13 L.Ed.2d (1965) (invalidating denying Texas statute fran- (rejecting argument viewpoint that "no discrimi military chise to those in who moved into the [challenged nation occurs because the rules] dis state attempted justify where Texas the statute against criminate viewpoints”, an by arguing entire class military personnel might otherwise saying elections). that the "declaration that influencing debate is start long multiple not skewed so as voices are si argument poses yet dangers 31.Defendants' other simply wrong”). lenced is legislature gets too. If the information from cases, corollary In the branch, franchise concerns legisla- nowhere but the executive representative about the government nature ability independently, ture’s to act and thus to be Supreme led the Court to invalidate laws which a check and balance to the executive is undercut. groups persons resulted being corollary danger frozen out of This undercutting proffered independence was finds, But in the immuni- majority fendants. face, which Rule 45 on its a reason for inter- are two analysis, there ty lobbyists, not to the distinc- excludes all pass a interests would ests32 non-govern- government tion between determining test, at least basis rational lobbyists.34 ment exception to to carve out whether only gov- argue allowing accepting Defendants grant. Without immunity it would lobbyists access to the floor ernmental im- exceptions premise legisla- allowing goal of legislature serves the acts, neither munity irrational information. Defen- tors to receive valuable is sufficient withstand of those interests however, demon- dants, have established no Indeed, the defendants’ scrutiny.33 strict receiving information interest strable it, again, and is different argument bedrock private to the exclusion too, is insufficient. purported interest The state’s sources. legisla- bolstering available to limiting information reasons majority credits own controlled having gov- those sources tors to independence and “A hardly compelling one.35 is interests provide information. lobbyists act to ernment display lobbyist to by private restriction is to keenly is the powers the state level separation at of hostility special to- legislature’s by public the the the by filed execu- the amicus brief illustrated attempt groups to branch, strongly private com- that urging its interest in the interest wards tive municating supporting politicians legislature [Rhode and of their votes. "The with the influence hostility express private that voices. entitled to Island] of the exclusion —but imposing unique limi- through means of the not Rule on its face the extent that House 32. To the (however henightedly) upon speakers who tations to maintain decorum justified an effort as was R.A.V., 112 S.Ct. 505 U.S. at disagree.” did not inter- level which noise to a and control is that point the First Amendment "The 2550. work, the record shows members' fere the expressed in some be majority preferences must lobbyists the on government which instances in silencing speech the basis on than other fashion causing objected members to were floor S.Ct. at 2548. Id. at 112 content.” accordingly not do problems. The defendants as we understand First Amendment "[T]he discriminatory on distinction try justify their to government premise that it is today rests on grounds. private power, that is the power, rather than expression; a conse- and as to free threat main not even meet practice does 33. Defendants' imposes lim- quence, substantial the Amendment scrutiny. Inter rigorous test of intermediate less trying it is even when the Government on traditionally itations scrutiny has of restrictions mediate goals.” concededly Turner praiseworthy to serve speech that applied concerns to commercial been at-, at 2480 114 Broadcasting,-U.S. S.Ct. misleading, see Bar activity Florida or is unlawful dissenting J., (O'Connor, concurring part It, Inc., — U.S. —, —, in and S.Ct. v. WentFor (1995), 2371, 2375, part). to and in L.Ed.2d 541 impose inci that restrictions content-neutral speech, see Turner Broadcast on dental burden private lob- attempt to liken 35.Defendants at-, test at 2469. The ing, -U.S. lobbying on to the restrictions bying restriction first, government prongs: three has related United States imposed by Rule XXXII support of a substantial interest must assert analogy, Representatives. Defendants' House however, second, government must regulation; against them and demonstrates works directly ma and that restriction demonstrate gov- give “compelling” need to that there is no third, interest; and terially advances lobby to lobbyists to the floor access ernment "narrowly Florida drawn.” regulation Bar, be must the defendants’ excluding Unlike others. while U.S. at —, S.Ct. — Representatives Rule practices, the U.S. House govern having government's asserted interest lobby lobbyists government allow does not House, to the lobbyists on the floor ment is lobbyists. XXXII excluding private Rule while them private lobbyists, is to have exclusion of lobbyists. those Even excludes all neutral government has provide But information. courtesy of admission normally afforded the having gov why shown interest House, former Members the floor—former information, private and not provide ernment officers, Parliamentarians, elected former Relatedly, the restric groups, "substantial.” is employees minority elected former the infor “narrowly to meet tailored” tion is not they or their if denied admission House—are provision goal it is overbroad because mation before interest matters organizations have information to exclude valuable and serves are not Similarly, staff of a Member the House. might provide. lobbyists private they are admit- lobby on occasions allowed the United States ted the House. That quite independence is goal of 34. A neutrality and not chosen Representatives has distinctively served legitimate. the interest But enhancing State’s claim that it is ability ment engaging were in mere “infor- citizenry of its to make wise decisions mation-providing” rejected it as a factual restricting the flow information to them matter. skepticism.... must be viewed with some Even if the distinction were tenable ‘[I]t is often true the best means here, not, facts as it is provide it does not open end is to the channels of communication refuge from the First Amendment. There rather than to close them.’” Anderson v. plainly speech value to by government Celebrezze, 780, 798, lobbyists, heavy-handed whether it lobby be Virgi- L.Ed.2d 547 (quoting ing or lightly more provision dexterous Pharmacy Virginia

nia Board Citizens Meese, information. See Block v. 793 F.2d Council, Consumer (D.C.Cir.) (Scalia, J.), 1312-14 cert. de (1976)). S.Ct. 48 L.Ed.2d 346 nied, (1986). L.Ed.2d 740 But govern the value of Further, private lobbyist restriction is speech Rather, ment point. not the narrowly legisla- tailored to serve the point is that the permitted has ture’s receiving asserted interest in informa- speak itself to prohibiting non-govern while Schuster, tion. Simon & Inc. v. Members of speech. ment Bd., the New York Crime State Victims **, 122 n. **, 511 n. non-government from speakers, in- In this case the lobbyists, cluding Indeed, is also valuable. restriction valuable excludes information lobbying while subject registration purview. majori- As the disclosure,36 suggested no ease has ever ty out, points lobbying groups vastly have that lobbying, including information-gath- different perspectives. interests and Access ering providing component, and could be to such independent varied and sources entirely. banned But that issue need not be information, impeding far legisla- the here, reached for what is clear is that the information, ture’s access to surely useful government keep must playing field lev- functions to quality both increase and the el.37 quantity of the total set of information avail- Moreover, even if greater there were rea- able. son to credit the distinction between “infor- provision of information from execu- mation providing” and “lobbying,” First agencies tive branch legis- members of the process” Amendment type “due issues would very legitimate lature is a govern- interest of preclude still reliance on the distinction to ment. The majority suggests there is a dis- justify the restriction of First Amendment tinction between providing mere information rights. Henry Monaghan, P. First lobbying, and but that distinction is contra- Process”, Amendment “Due 83 Harv.L.Rev. dicted findings (1970) (“If record. The factual 519 requires Constitution the district court leave no doubt that procedural elaborate safeguards in the ob- court considered govern- area, the contention that scenity a fortiori require should grant preference government lobbyists to the legislators. tion to Edward O. Laumann et Cf. (if providers al., and information any there is distinc- Washington Lawyers and Others: The Struc- tion) any argument by undercuts defendants Washington ture Representation, 37 Stan. compelling give have a preference need to (1985); Wilson, Q. L.Rev. 495 James Politi- government. to the (1995); Organizations cal xix-xx Jeffrey S. Banks Bariy Weingast, & R. The Political Control of any 36. This govern- case does involve issue of Asymmetric Information, Bureaucracies under 36 subsidy, government ment of a program, creation (1992). Am.J.Pol.Sci. 509 Political scientists organizations or of the taxable status of involved lobbyists’ have primary found that strategy in lobbying. Regan v. Repre- Taxation With Cf. influencing legislators provide is to information sentation, to counteract the similar groups, efforts of other (1983). L.Ed.2d 129 not to through pressure achieve influence tactics. recognized political It is See David Wright, science litera- Austen-Smith & John R. day ture much of what modem Lobbying, do Counteractive 38 Am.J.Pol.Sci. 25 gathering provision (1994). involves the of informa- operation of the integral ... [is] sues when the protection procedural equivalent by our system government established example, political involved—for speech Amendment affords The First Constitution. amend central first more speech implicates — political ex- protection to such the broadest concerns.”)- were a dis if there Even ment unfettered pression [the] in order ‘to assure distinction, between “difference cernible bringing about of interchange of ideas for advocacy may turn statement factual changes desired political and social debatability the facts described upon the ” States, (citing v. people.’ Roth United omitted.” true, of facts pertinency Block, The distinction F.2d at 1313. (1957))). acting for providing information between “influencing manner purpose of danger, and that is that There is another exceedingly legislation” passage of truly repre- government’s will not voice Here, that “infor legislators testified public.38 fine. Govern- the interests of sent them fact influence provided did in theoretically peo- represent mation” ment should recognized has to vote. The House Theory on how represent itself. ple and not Rule votes. influence reality depart. that information often person ... that “no provides face always people. on its Government a mirror ” indirectly engage in directly recognized as constitut- employees today either shall has lobbying. The House group. See E. Nord- practice ing their own interest any activity, preclude Autonomy line to the Democratic linger, On the thus drawn (1981). indirect, votes. The First influence State even govern puts the burden Amendment that, a fear once The Framers had permissi finely practices tailor its toment legislators had obvious incentive power, tailoring done was no such fine goals, and ble themselves or power perpetuate use “that here. See Rubin practices by defendants’ Limits, Inc. ilk in Term office.” U.S. — U.S. —, —, Co., Brewing Coors — Thornton, —, —, 131 L.Ed.2d S.Ct. L.Ed.2d 881 (Thomas, J., numer dissenting) (pointing out the defendants argument The real day legislation and of modern ous instances justify their actions is articulated have perpet produce the effect of rulemaking that lobbyists repre- government claim that office). Framers uating incumbents lobby- non-government people while the sent intended happen and recognized this would they say, Accordingly, there is do not. ists a check. to act as Amendment of the First an inversion worry. That is cause to no problem of the Madison identified may be James there values. While constitutional self-interest, in con acting voice, its government it cannot be government to the value purported to those it interests of trast to the that to be so only permit To voice. the the two fundamental one of Buckley represent, as be to stifle discussion. would governm republican form problems of the Valeo, 424 in a re- great importance (“Discussion “It is of public ent.39 is- L.Ed.2d by "special Defen- ing government interests.” legitimate express a concern Defendants 38. headlong may thrust them "special practices captured by inter- dants’ thus may government be to avoid. dangers profess to wish government the into Apart fact ests.” self- effecting system of democratic group, a special Central to frequently interest its own itself private interests to be governance enabling government problem of a the solution action Without collective hardly in concert. “special be able to act captured by would interests” quo. See status may impossible to alter the speak only it be government to itself. to have Sunstein, Democracy Free the Problem Moreover, may groups many plaintiff of the Speech, supra, at 245-46. wealth, hardly the centers of be characterized Citizens, privilege. who themselves power and case, Black Justice a seminal 39. In together in powerful, band be affluent or recognized: government, whether the lobby groups to legislative assem- Unfortunately, be, it is true examples, give the Rhode groups but two blies, people, liberty Committee, Inc., of the defend the bom to Right To Life Island State trusts and their sacred times violated groups have at chapter ACLU. These local of the the may oppression.... the instruments captur- become way thought to avoid to be guard society against rulers, oppression guard but to one LEBRON, Michael A. Plaintiff-Counter- part society against injustice Defendant-Appellee, part.” Federalist other No. (James Madison) (Roy P. Fairfield 2d ed. added). 1981) (emphasis Madison feared NATIONAL RAILROAD PASSENGER government might choose serve itself (AMTRAK), CORPORATION citizens, saying: instead Defendant-Appellant, framing

In government which is to be men, by great administered men over difficulty you lies in this: must first enable Transportation Displays, Incorporated, government governed; to control the Defendant-Counter-Claimant. place oblige and in the next to control is, dependence people itself. A no 1494, Docket No. 93-7127. doubt, primary government; control on United States Appeals, Court of experience taught but has mankind the Second Circuit. necessity auxiliary precautions. 160; Amar, Rights, Id. see also The Bill of Argued April 1993. supra, among at 1132-33. Central those Decided Dec. 1993. “auxiliary precautions” gov- in obliging the ernment to control itself from self-interest Reversed and Remanded Feb. 1995. self-dealing protections are the afforded Reargued May 1995. the First citizens Amendment. Defen- actions violate purpose dants’ this essential Decided Oct. of the First Amendment.

Accordingly, I affirm would declaration practices the district court that the my

defendants are unconstitutional.40

view, the defendants must either adhere to Rule and exclude all from its floor speak

who to influence its vote or the House equally open floor,

must prefer and not government’s belongs voice. That choice Constitution,

to the House. Under the preferring

choice of voice excluding non-government voices

does not. tution, Those who cherish freedom [under the deny First can be valid. To be to would Amendment] here would do towell remember representatives affirm ... that the people long legis- this freedom that lative cannot survive the superior people to the themselves.” The snuffing speak. out of freedom ... (Alexander Hamilton) Federalist at 228 No. Brandhove, 367, 380-81, Tenney v. (Roy 1981) (reply P. 2d Fairfield ed. to "Bru- 783, 790-91, (1951) (Black, 95 L.Ed. 1019 tus”).

J., concurring). Black Justice echoed concerns voiced earlier injunction 40. The entered the District Court by one of the Framers of the Constitution and House, against the party which was not a adoption Rights: advocates for of the Bill of "No suit, was error. act, therefore, Contrary to the Consti-

Case Details

Case Name: National Association of Social Workers v. John B. Harwood

Court Name: Court of Appeals for the First Circuit

Date Published: Nov 13, 1995

Citation: 69 F.3d 622

Docket Number: 95-1090

Court Abbreviation: 1st Cir.