Note from the Editor: The Federalist Society takes no positions on particular legal and public policy matters. Any expressions of opinion are those of the author. We welcome responses to the views presented here. To join the debate, please email us at [email protected].

Maine State Representative Laurel Libby made a Facebook post identifying a transgender athlete who had won a girls’ pole-vaulting competition. The Maine State House, in a party-line vote, found that the post was unethical and censured Rep. Libby. When she refused to apologize, she was banned from voting or from speaking on the House floor. She sued to challenge the punishment, but the First Circuit permitted the punishment to remain in effect while it considered the case. On Tuesday, the Supreme Court enjoined the punishment, permitting her to vote and to participate in debates while the case remains pending.

The case, Libby v. Fecteau, involves important questions about free speech, election law, and the Court’s use of its emergency docket. A few things are clear: (1) Whether appropriate or not, Representative Libby’s post was protected speech, and (2) her punishment was imposed because of the content of that speech. The Court’s decision appeared to signal that the discipline was unconstitutional, although the Court issued only a brief order and did not explain its reasoning. The main question, then, was whether her ability to serve in the legislature could be conditioned on compliance with speech restrictions that could not be applied to the general public.

Three years ago, in Houston Community College System v. Wilson, the Supreme Court unanimously held that a legislative body’s censure of one of its members did not implicate the member’s First Amendment rights. This case is different, however, in that Rep. Libby was not only censured but suffered practical consequences—the loss of her ability to participate in debates and to vote. In fact, Wilson specifically noted that the censure in that case did not come with practical consequences: “[T]he censure did not prevent Mr. Wilson from doing his job, [and] it did not deny him any privilege of office.” The Wilson Court also noted that “we do not address today questions concerning legislative censures accompanied by punishments.”

The closer precedent is Bond v. Floyd. In that case, the Court held that it violated the First Amendment for the Georgia legislature to refuse to seat a representative because of comments he had made about the Vietnam War. Although, as a formal matter, Rep. Libby has been allowed to retain her seat in the legislature, she has been denied the voting power (as well as the ability to debate) that accompanies the office. Rep. Libby’s case would appear, therefore, to be controlled by Bond.

Had Rep. Libby been expelled from the Maine House, even on the basis of her speech, she might not have a First Amendment claim. Under Article I, section 5, clause 2 of the U.S. Constitution, each House of Congress may expel a member by a two-thirds vote, and, under the political-question doctrine, federal courts could not review the basis for Congress’s determination to expel a member. It is hard to believe that states would be prohibited from expelling legislators for their speech if Congress is permitted to expel its own members on that basis. But a refusal to seat a member is different from an expulsion. Although Rep. Libby was neither excluded nor expelled from the Maine legislature, her punishment is more like an exclusion in that it was effected on the basis of a majority vote rather than the two-thirds threshold required for expulsion.

The Supreme Court enjoined Rep. Libby’s punishment by a vote of 7-2. Justices Sotomayor and Jackson would not have enjoined it; Justice Jackson explained her reasoning in a short opinion. She argued that there was insufficient justification for the Supreme Court to act on an emergency basis and that the merits of the case were cloudy enough that they failed to meet the Court’s standard of an “indisputably clear” right to relief.

For the rest of the Court, however, it was indisputably clear that stripping Rep. Libby of her authority as a legislator because of her speech violated her rights and the rights of her constituents.