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DOE ET AL. v. MCMILLAN ET AL.

decided: May 29, 1973.

DOE ET AL
v.
MCMILLAN ET AL.



CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT.

White, J., delivered the opinion of the Court, in which Douglas, Brennan, Marshall, and Powell, JJ., joined. Douglas, J., filed a concurring opinion, in which Brennan and Marshall, JJ., joined, post, p. 325. Burger, C. J., filed an opinion concurring in part and dissenting in part, post, p. 331. Blackmun, J., filed an opinion concurring in part and dissenting in part, in which Burger, C. J., joined, post, p. 332. Rehnquist, J., filed an opinion concurring in part and dissenting in part, in which Burger, C. J., and Blackmun, J., joined, and in Part I of which Stewart, J., joined, post, p. 338.

Author: White

[ 412 U.S. Page 307]

 MR. JUSTICE WHITE delivered the opinion of the Court.

This case concerns the scope of congressional immunity under the Speech or Debate Clause of the United States Constitution, Art. I, § 6, cl. 1, as well as the reach of official immunity in the legislative context. See Barr v. Matteo, 360 U.S. 564 (1959); Tenney v. Brandhove, 341 U.S. 367 (1951).

By resolution adopted February 5, 1969, H. Res. 76, 91st Cong., 1st Sess., 115 Cong. Rec. 2784, the House of Representatives authorized the Committee on the District of Columbia or its subcommittee "to conduct a full and complete investigation and study of . . . the organization,

[ 412 U.S. Page 308]

     management, operation, and administration" of any department or agency of the government of the District of Columbia or of any independent agency or instrumentality of government operating solely within the District of Columbia. The Committee was given subpoena power and was directed to "report to the House as soon as practicable . . . the results of its investigation and study together with such recommendations as it deems advisable." On December 8, 1970, a Special Select Subcommittee of the Committee on the District of Columbia submitted to the Speaker of the House a report, H. R. Rep. No. 91-1681 (1970), represented to be a summary of the Subcommittee's investigation and hearings devoted to the public school system of the District of Columbia. On the same day, the report was referred to the Committee of the Whole House on the State of the Union and was ordered printed. 116 Cong. Rec. 40311 (1970). Thereafter, the report was printed and distributed by the Government Printing Office pursuant to 44 U. S. C. §§ 501 and 701.

The 450-page report included among its supporting data some 45 pages that are the gravamen of petitioners' suit. Included in the pertinent pages were copies of absence sheets, lists of absentees, copies of test papers, and documents relating to disciplinary problems of certain specifically named students.*fn1 The report stated that these materials were included to "give a realistic view" of a troubled school and "the lack of administrative

[ 412 U.S. Page 309]

     efforts to rectify the multitudinous problems there," to show the level of reading ability of seventh graders who were given a fifth-grade history test, and to illustrate suspension and disciplinary problems.*fn2

On January 8, 1971, petitioners, under pseudonyms, brought an action in the United States District Court for the District of Columbia on behalf of themselves, their children, and all other children and parents similarly situated. The named defendants were (1) the Chairman and members of the House Committee on the District of Columbia; (2) the Clerk, Staff Director, and Counsel of the Committee; (3) a consultant and an investigator for the Committee; (4) the Superintendent of Documents and the Public Printer; (5) the President and members of the Board of Education of the District of Columbia; (6) the Superintendent of Public Schools of the District of Columbia; (7) the principal of Jefferson Junior High School and one of the teachers at that school; and (8) the United States of America.

Petitioners alleged that, by disclosing, disseminating, and publishing the information contained in the report, the defendants had violated the petitioners' and their children's statutory, constitutional, and common-law rights to privacy and that such publication had caused and would cause grave damage to the children's mental and physical health and to their reputations, good names, and future careers. Petitioners also alleged various violations of local law. Petitioners further charged that "unless restrained, defendants will continue to distribute and publish information concerning plaintiffs, their children and other students." The complaint prayed for an order enjoining the defendants from further publication, dissemination, and distribution of any report containing

[ 412 U.S. Page 310]

     the objectionable material and for an order recalling the reports to the extent practicable and deleting the objectionable material from the reports already in circulation. Petitioners also asked for compensatory and punitive damages.*fn3

The District Court, after a hearing on motions for a temporary restraining order and for an order against further distribution of the report, dismissed the action against the individual defendants on the ground that the conduct complained of was absolutely privileged.*fn4 A divided panel of the United States Court of Appeals for the District of Columbia Circuit affirmed. Without determining whether the complaint stated a cause of action under the Constitution or any applicable law, the majority held that the Members of Congress, the Committee staff employees, and the Public Printer and Superintendent of Documents were immune from the liability asserted against them because of the Speech or Debate Clause and that the official immunity doctrine recognized in Barr v. Matteo, supra, barred any liability on the part of the District of Columbia officials as well as the legislative employees.*fn5 We granted certiorari, 408 U.S. 922.

[ 412 U.S. Page 311]

     I

To "prevent intimidation of legislators by the Executive and accountability before a possibly hostile judiciary," Gravel v. United States, 408 U.S. 606, 617 (1972), Art. I, § 6, cl. 1, of the Constitution provides that "for any Speech or Debate in either House, they [Members of Congress] shall not be questioned in any other Place."

"The Speech or Debate Clause was designed to assure a co-equal branch of the government wide freedom of speech, debate, and deliberation without intimidation or threats from the Executive Branch. It thus protects Members against prosecutions that directly impinge upon or threaten the legislative process." Id., at 616.*fn6

The Speech or Debate Clause has been read "broadly to effectuate its purposes," United States v. Johnson, 383 U.S. 169, 180 (1966); Gravel v. United States, supra, at 624, and includes within its protections anything "generally done in a session of the House by one of its members in relation to the business before it." Kilbourn v. Thompson, 103 U.S. 168, 204 (1881); United States v. Johnson, supra, at 179; Gravel v. United States, supra, at 624; Powell v. McCormack, 395 U.S. 486, 502 (1969); United States v. Brewster, 408 U.S. 501, 509, 512-513 (1972). Thus "voting by Members and committee reports are protected" and "a Member's conduct at legislative committee hearings, although subject to judicial review in various circumstances, as is legislation itself,

[ 412 U.S. Page 312]

     may not be made the basis for a civil or criminal judgment against a Member because that conduct is within the 'sphere of legitimate legislative activity.'" Gravel v. United States, supra, at 624.

Without belaboring the matter further, it is plain to us that the complaint in this case was barred by the Speech or Debate Clause insofar as it sought relief from the Congressmen-Committee members, from the Committee staff, from the consultant, or from the investigator, for introducing material at Committee hearings that identified particular individuals, for referring the report that included the material to the Speaker of the House, and for voting for publication of the report. Doubtless, also, a published report may, without losing Speech or Debate Clause protection, be distributed to and used for legislative purposes by Members of Congress, congressional committees, and institutional or individual legislative functionaries. At least in these respects, the actions upon which petitioners sought to predicate liability were "legislative acts," Gravel v. United States, supra, at 618, and, as such, were immune from suit.*fn7

Petitioners argue that including in the record of the hearings and in the report itself materials describing particular conduct on the part of identified children was actionable because unnecessary and irrelevant to any legislative purpose. Cases in this Court, however, from Kilbourn to Gravel pretermit the imposition of liability on any such theory. Congressmen and their aides are immune from liability for their actions within the "legislative sphere," Gravel v. United States, supra, at 624-625, even though their conduct, if performed in other than

[ 412 U.S. Page 313]

     legislative contexts, would in itself be unconstitutional or otherwise contrary to criminal or civil statutes. Although we might disagree with the Committee as to whether it was necessary, or even remotely useful, to include the names of individual children in the evidence submitted to the Committee and in the Committee Report, we have no authority to oversee the judgment of the Committee in this respect or to impose liability on its Members if we disagree with their legislative judgment. The acts of authorizing an investigation pursuant to which the subject materials were gathered, holding hearings where the materials were presented, preparing a report where they were reproduced, and authorizing the publication and distribution of that report were all "integral part[s] of the deliberative and communicative processes by which Members participate in committee and House proceedings with respect to the consideration and passage or rejection of proposed legislation or with respect to other matters which the Constitution places within the jurisdiction of either House." Id., at 625. As such, the acts were protected by the Speech or Debate Clause.

Our cases make perfectly apparent, however, that everything a Member of Congress may regularly do is not a legislative act within the protection of the Speech or Debate Clause. "The Clause has not been extended beyond the legislative sphere," and "legislative acts are not all-encompassing." Id., at 624-625. Members of Congress may frequently be in touch with and seek to influence the Executive Branch of Government, but this conduct "though generally done, is not protected legislative activity." Id., at 625; United States v. Johnson, supra. Nor does the Speech or Debate Clause protect a private republication of documents introduced and made public at a committee hearing, although the

[ 412 U.S. Page 314]

     hearing was unquestionably part of the legislative process. Gravel v. United States, supra.

The proper scope of our inquiry, therefore, is whether the Speech or Debate Clause affords absolute immunity from private suit to persons who, with authorization from Congress, distribute materials which allegedly infringe upon the rights of individuals. The respondents insist that such public distributions are protected, that the Clause immunizes not only publication for the information and use of Members in the performance of their legislative duties but also must be held to protect "publications to the public through the facilities of Congress." Public dissemination, it is argued, will serve "the important legislative function of informing the public concerning matters pending before Congress . . . ." Brief for Legislative Respondents 27.

We do not doubt the importance of informing the public about the business of Congress. However, the question remains whether the act of doing so, simply because authorized by Congress, must always be considered "an integral part of the deliberative and communicative processes by which Members participate in committee and House proceedings" with respect to legislative or other matters before the House. Gravel v. United States, supra, at 625. A Member of Congress may not with impunity publish a libel from the speaker's stand in his home district, and clearly the Speech or Debate Clause would not protect such an act even though the libel was read from an official committee report.*fn8 The reason is that republishing a libel under such circumstances

[ 412 U.S. Page 315]

     is not an essential part of the legislative process and is not part of that deliberative process "by which Members participate in committee and House proceedings." Ibid. By the same token, others, such as the Superintendent of Documents or the Public Printer or legislative personnel, who participate in distribution of actionable material beyond the reasonable bounds of the legislative task, enjoy no Speech or Debate Clause immunity.

Members of Congress are themselves immune for ordering or voting for a publication going beyond the reasonable requirements of the legislative function, Kilbourn v. Thompson, supra, but the Speech or Debate Clause no more insulates legislative functionaries carrying out such nonlegislative directives than it protected the Sergeant at Arms in Kilbourn v. Thompson when, at the direction of the House, he made an arrest that the courts subsequently found to be "without authority." 103 U.S., at 200.*fn9 See also Powell v. McCormack, 395 U.S., at 504; cf. Dombrowski v. Eastland, 387 U.S. 82 (1967). The Clause does not protect "criminal conduct threatening the security of the person or property of others, whether performed at the direction of the Senator in preparation for or in execution of a legislative act or done without his knowledge or direction." Gravel v. United States, supra, at 622. Neither, we think, does it immunize those who publish and distribute otherwise actionable materials

[ 412 U.S. Page 316]

     beyond the reasonable requirements of the legislative function.*fn10

Thus, we cannot accept the proposition that in order to perform its legislative function Congress not only must at times consider and use actionable material but also must be free to disseminate it to the public at large, no matter how injurious to private reputation that material might be. We cannot believe that the purpose of the Clause -- "to prevent intimidation of legislators by the Executive and accountability before a possibly hostile judiciary," Gravel v. United States, supra, at 617; Powell v. McCormack, supra, at 502; United States v. Johnson, 383 U.S., at 181 -- will suffer in the slightest if it is held that those who, at the direction of Congress or otherwise, distribute actionable material to the public at large have no automatic immunity under the Speech or Debate Clause but must respond to private suits to the extent that others must respond in light of the Constitution and applicable laws.*fn11 To hold otherwise

[ 412 U.S. Page 317]

     would be to invite gratuitous injury to citizens for little if any public purpose. We are unwilling to sanction such a result, at least absent more substantial evidence that, in order to perform its legislative function, Congress must not only inform the public about the fundamentals of its business but also must distribute to the public generally materials otherwise actionable under local law.

Contrary to the suggestion of our dissenting Brethren, we cannot accept the proposition that our conclusion, that general, public dissemination of materials otherwise actionable under local law is not protected by the Speech or Debate Clause, will seriously undermine the "informing function" of Congress. To the extent that the Committee report is printed and internally distributed to Members of Congress under the protection of the Speech or Debate Clause, the work of Congress is in no way inhibited. Moreover, the internal distribution is "public" in the sense that materials internally circulated, unless sheltered by specific congressional order, are available for inspection by the press and by the public. We only deal, in the present case, with general, public distribution beyond the halls of Congress and the establishments of its functionaries, and beyond the apparent needs of the " due functioning of the [legislative] process." United States v. Brewster, 408 U.S., at 516.

That the Speech or Debate Clause has finite limits is important for present purposes. The complaint before us alleges that the respondents caused the Committee report "to be distributed to the public," that "distribution of the report continues to the present," and that, "unless restrained, defendants will continue to distribute and publish" damaging information about petitioners and their children. It does not expressly appear from the complaint, nor is it contended in this Court, that either the Members of Congress or the Committee personnel did

[ 412 U.S. Page 318]

     anything more than conduct the hearings, prepare the report, and authorize its publication. As we have stated, such acts by those respondents are protected by the Speech or Debate Clause and may not serve as a predicate for a suit. The complaint was therefore properly dismissed as to these respondents. Other respondents, however, are alleged to have carried out a public distribution and to be ready to continue such dissemination.

In response to these latter allegations, the Court of Appeals, after receiving sufficient assurances from the respondents that they had no intention of seeking a republication or carrying out further distribution of the report, concluded that there was no basis for injunctive relief. But this left the question whether any part of the previous publication and public distribution by respondents other than the Members of Congress and Committee personnel went beyond the limits of the legislative immunity provided by the Speech or Debate Clause of the Constitution. Until that question was resolved, the complaint should not have been dismissed on threshold immunity grounds, unless the ...


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