Courts give Congress a license to be reckless
The Covington Catholic boys lost one court case earlier this month. The federal appeals panel for the 6th circuit, upholding a decision by a Kentucky district court, could not hold Members of Congress legally accountable for accusing them of hateful speech.
Covington Catholic students, you will recall, became the focal point of controversy after the March for Life in 2019, when inaccurate media reports, based on one-sided reporting, portrayed them as the aggressors in a confrontation with a Native American activist. In fact the activist had been the aggressive party, as videotape proved, and the teenage boys had shown admirable restraint. But before that truth emerged, dozens of reports had circulated, charging the young men with hateful behavior. Nicholas Sandmann, who had been portrayed in a widely circulated photo with his face just inches away from the older man, was subject to special vilification. Sandmann has subsequently sued several media outlets for their damaging reports, winning settlements from CNN and the Washington Post.
In a separate defamation suit, Covington Catholic students charged that Senator Elizabeth Warren and Congresswoman Debra Haaland had defamed them in statements, circulated on Twitter, charging them with “hateful” behavior. The Kentucky court ruled that the lawsuit could not proceed, because Members of Congress are protected from such suits.
The US Constitution gives Members of Congress absolute immunity from any lawsuit arising from “any Speech or Debate in either House.” But Warren and Haaland did not make their contentious remarks during Congressional debates; they posted them on public Twitter accounts. And the defendants did not claim, nor did the courts consider, that Constitutional grant of immunity. The appeals court, citing an earlier ruling, noted that the Constitutional immunity of lawmakers “does not extend beyond what is necessary to preserve the integrity of the legislative process”—which was never in question in this case.
Instead, the defendants argued—and the courts agreed—that they were exempt from suit because they were acting as employees of the federal government, and their denunciations of the Covington Catholic boys “were made within the scope of defendants’ employment as elected representatives.” The lawmakers’ harsh statements, the district court explained, were intended “to convey the politicians’ views on matters of public interest to their constituents.”
Two questions arise here. First, are Members of Congress “employees” of the federal government? If so, who are their employers? Who are their supervisors? The US Congress is the federal government. Other federal employees are exempt from lawsuit when they carry out their duties, because those duties are set for them by Congress. Members of Congress are not under the same obligation to carry out the duties set by others.
But even if a Senator is to be considered a federal employee, the crucial second question is whether delivering opinions on public controversies is rightly considered within the scope of their employment. Lawmakers presumably have a duty to inform their constituents about pending legislation. But do they have a “duty” to denounce other American citizens, for reasons unrelated to Congressional business? And does that “duty” extend so far as to give them a license to defame others?
Unfortunately for the Covington Catholic boys, another federal appeals court had already answered those questions, with a resounding Yes. In Operation Rescue National v. United States (1997), the first circuit ruled that the late Senator Ted Kennedy could not be held responsible for his false and reckless statement that Operation Rescue “has as a matter of national policy firebombing and even murder.” I take a special interest in that case, because I was the lead plaintiff.
Operation Rescue (for the benefit of those too young to remember) was a pro-life initiative that arose in the late 1980s, in which participants sat peacefully in front of abortion clinics to form human blockades, risking arrest to save lives. Although it has been largely ignored by historians, Operation Rescue is the largest movement of civil disobedience in American history; in 1988 and 1989, there were nearly 400 such blockades, resulting in over 25,000 arrests. At the time I was acting as a public spokesman for Operation Rescue in Boston, where Kennedy made his outrageous charge.
To say that someone is guilty of firebombing and murder is obviously damaging. To make that charge without a shred of evidence is defamatory. After demanding an apology, and receiving no response, several of us filed suit. To no avail. The court’s ruling established, in effect, that a US Senator could say anything he wants about a helpless citizen, with impunity. Now Senator Warren—who holds the same seat that Kennedy held for years—profits from the same immunity.
While my sympathies lie entirely with the Covington Catholic plaintiffs, let me mention one more factor that makes my own case still more remarkable. Senator Kennedy made his defamatory remark not during a Congressional debate, not at a press conference, not in answer to constituents’ questions, but at a fundraising event for his own re-election campaign! So the precedent set in the Operation Rescue case suggests that when a Member of Congress runs for re-election, his campaign activities are within the scope of his employment.
Of course if you were running against an incumbent Member of Congress, your campaign statements would not be within the scope of your employment. You would not enjoy the same blanket immunity from lawsuits. So you might say that these court decisions give incumbents an unfair advantage, and you’d be right. More to the point the judicial precedent—now firmly established in two decisions by different federal appeals courts—suggests that Members of Congress cannot be held accountable for defamation. At a time of deep national divisions and high political tensions—a time when teenage boys can become the objects of a nationwide hate campaign—the courts have given Congressmen a dangerous license to be reckless.
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Sep. 18, 2020 2:50 AM ET USA
Not long ago the Democrat lawmakers indulged themselves in repeating in unison "No one is above the law. Not even the President." But exemptions from legal responsibility for what has the appearance of criminal actions, including polygamy and widespread insider trading, have gone too far for a properly functioning developed nation. Accountability at the very top is indispensable to prevent demoralization of society and degradation of culture. The same applies to the Church and her hierarchy.