How expansive is the Constitution's 'speech or debate' clause? |
How expansive is the Constitution’s ‘speech or debate’ clause?
Six members of Congress produced a video urging active military personnel not to obey illegal orders. In my column last week, I praised Sen. Mark Kelly (D-Ariz.) for not relying primarily on his constitutional “speech or debate” immunity as a senator to block in the courts the censure levied against him by Secretary of Defense Pete Hegseth.
Instead, Kelly appealed to the broader free speech protection all Americans enjoy under the First Amendment. U.S. District Court Judge Richard Leon agreed with Kelly’s argument, freezing the censure action pending the outcome of Hegseth’s appeal.
The “speech or debate” clause may still have some bearing down the road on appeal. If it does, the question arises as to just how expansive the clause’s protection is over a video made outside Congress’s immediate legislative arena.
When taking a constitutional law course in the 1960s, I did not give a second thought to what the speech or debate clause meant. The relevant thrust of the Constitution’s Article I, section 6 is that senators and representatives “shall not be questioned in any other place” for “any speech or debate in either House” of Congress.
There were no landmark speech or debate cases highlighted in my 1965 con-law text. Looking back now, I find there was a less-major case referenced. In Kilbourn v. Thompson (1880), the Supreme Court gave a broader interpretation to the clause than I would have imagined. It held that “anything done in the House by one of its members relating to the business before it” is protected.
The origin of the protection is not difficult to........