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characterized a "legislator's duty to inform the public about matters affecting the administration of government” as "at the heart of our democratic system” and concluded that such activities are legislative acts within the Speech or Debate Clause. 82
Justice Douglas dissented in a separate opinion in which he construed the Speech or Debate Clause "to insulate Senator Gravel and his aides from inquiry concerning the Pentagon Papers" and the publisher "from inquiry concerning publication of them.” In addition, he held the publisher to be protected from investigation or prosecution by the First Amendment. 83
In the McMillan case, the plaintiffs were parents of certain pupils at a junior high school in the District of Columbia, who filed the legal action against the then Chairman of the House District Committee, committee members and staff, the Superintendent of Documents, Public Printer and certain officials of the District public school system.
The complaint alleged that a report of the committee entitled "Investigation and Study of the Public School System of the District of Columbia," contained certain derogatory information regarding named students--specifically, attendance lists, disciplinary letters and memoranda, test papers and other school documents—and asked for declaratory and injunctive relief and damages.
The lower Federal courts had dismissed the action, holding the legislative defendants—the members and staff of the committee and employees of the Government Printing Office--to be immune from liability under the Speech or Debate Clause and the remaining defendants-employees of the District Government—to be immune under the judicially-created doctrine of official immunity. These courts, speaking prior to the clarification of the scope of legislative immunity in Gravel, under which congressional staff were specifically afforded the immunity of their congressional employers, held that the legislative employees were within the scope of the official immunity doctrine, as well.
Justice White wrote the opinion for the majority of the Court, handed down on May 29, 1973, in which he was joined by Justices Douglas, Brennan, Marshall and Powell. He described the scope of the Court's inquiry as "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.” 86
The Court concluded that there must be some "reasonable bounds” for legislative acts.
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, . . . 103 U.S. 168 (1880), but the Speech or Debate Clause no more insulates legislative functionaries carrying out such non-legislative directives than it protected the sergeant-at-arms in Kilbourn . . . when, at the direction
of the House, he made an arrest that the courts subse#408 U.S. 606, 649. 13408 U.S. 606, 633. WH. Rept. 91–1681 (1970). #Doe v. MeMillan, 412 U.S. 306, 314 (1973).
quently found to be 'without authority.' ... The Clause
able requirements of the legislative function. 88 Justice White held such reasonable requirements of the legislative function to be satisfied by distribution of the congressional publication within "the halls of Congress and the establishments of its functionaries." 87 He characterized such internal distribution of congressional documents as being "'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.
Finding that the Members of Congress and personnel of the House committee, who had been named as defendants, had done nothing more than "conduct the hearings, prepare the Report, and authorize its publication,” 89 and that the complaint had thus been properly dismissed as to them, Justice White turned his attention to the officers of the Government Printing Office, also named as defendants."
The GPO defendants were said to enjoy the protection of the Speech or Debate Clause "to the extent that they serve legislative functions, the performance of which would be immune conduct if done by Congressmen.
Having found the public distribution of the report to be beyond the reasonable requirements of the legislative function, however, these defendants could not avail themselves of legislative immunity as a bar to liability for their actions. The Court then concluded that the official immunity doctrine did not act as a bar to these defendants' liability and that the action was improperly dismissed as to them by the lower Federal courts.
Justice White noted that there was no independent immunity for the Printing Office, but that the immunity of that office was dependent upon the immunity that would be afforded the governmental body for whom it was performing its printing and distribution functions.
[T]he Printing Office is immune from suit when it prints for an executive department for example, only to the extent that it would be if it were part of the department itself, or, in other words, to the extent that the department head himself would be immune if he ran his own printing press and distributed his own documents. To hold otherwise would mean that an executive department could acquire immunity for non-immune materials merely by presenting the proper certificate to the Public Printer, who would then have the duty to print the material. Under such a holding, the department would have a seemingly foolproof method for
86 412 U.S. at 315-316.
80 It was noted in a footnote that, due to the adoption of new policies for the handling of confidential information by District public school officials, that those defendants were not subject to injunctive relief at the time of the Court's decision. 412 U.S. at 310.
61 412 U.S. at 320.
manufacturing immunity for materials which the court would not otherwise hold immune if not sufficiently connected with
the official duties' of the department. 92 The Court reversed the judgment of the lower Federal courts and remanded the case for further proceedings, having determined that both the legislative and official immunity doctrines had been interpreted too broadly in dismissing the case prior to full trial on the merits,
Justice Douglas wrote a separate, concurring opinion, in which Justices Brennan and Marshall joined. He described the issue as whether the report infringed upon the constitutional rights of the school children named in the report and concluded that the naming of the children was "totally irrelevant to the purposes of the study and that the bounds of legitimate legislative activity had been ex
Chief Justice Burger filed an opinion concurring in the grant of immunity to the Members of Congress and their staff aides and dissenting from the majority's holding that the Printing Office defendants were liable for publicly distributing the printed report. 94
Justice Rehnquist, in an opinion in which he was joined by the Chief Justice and Justice Blackmun, and, joined in part by Justice Stewart, concurred in the grant of immunity to the congressional defendants. He concluded, however, that the Speech or Debate Clause confers immunity upon congressionally authorized public distribution of committee reports.
Apart from the immunity issue, Justice Rehnquist commented on the effect of the separation of powers on the question before the Court.
Entirely apart from the immunity conferred by the Speech or Debate Clause on these respondents, I believe that the principle of separation of powers forbids the granting of injunctive relief by the District Court in a case such as this. We have jurisdiction to review the completed acts of the Legislative and Executive Branches. . . . But the prospect of the District Court enjoining a committee of Congress, which, in the legislative scheme of things, is for all practical purposes Congress itself, from undertaking to publicly distribute one of its reports in the manner that Congress has by statute prescribed that it be distributed, is one that I believe would have boggled the minds of the Framers of the
Constitution.95 In a further separate opinion, Justice Blackmun, joined by the Chief Justice, concurred in part and dissented in part and added comments of his own to Justice Rehnquist's opinion, in which he had joined. Justice Blackmun wrote:
Although it is regrettable that a person's reputation may be damaged by the necessities or the mistakes of the legislative process, the very act of determining judicially whether
€ 412 U.S. at 323.
there is ‘substantial evidence' to justify the inclusion of
tution. 96 These three decisions-Brewster, Gravel and McMillan-severely restricted the scope of the legislative immunity doctrine in a substantial departure from the precedents interpreting the Speech or Debate Clause. The need for a congressionally-sponsored examination of the ominous side effects of these decisions prompted the Joint Committee to conduct its inquiry into the constitutional immunity of Members of Congress on which we now report.
* 412 U.S. at 337.
TESTIMONY, STATEMENTS, AND ROUNDTABLE
PURPOSE AND OBJECTIVE OF THIS INQUIRY In announcing the opening of this inquiry into the constitutional immunity of Members of Congress, the Chairman of the Joint Committee stated that the committee was neither arguing "for or against the Members of Congress who were parties to these court actions” interpreting the immunity doctrine nor was it "annoint[ing] itself as a higher court of appeal for the decisions handed down by the Justices of the Supreme Court in ... (the) most recent cases.” Rather, Chairman Metcalf continued:
[w]hat the joint committee will do . .. is to examine the ominous side effects of the majority's opinion in these . cases on the capability of the Congress to fulfill its role as a coordinate and coequal body in the constitutionally established form of government conceived by the Founding
Fathers in 1789.97 The purpose of the inquiry undertaken by the committee and the approach the members of the committee were to take throughout the hearings were aptly characterized by one of the early witnesses, former Associate Justice of the United States Supreme Court, Arthur J. Goldberg. Justice Goldberg distinguished between criticism of the Court and observance of the rule of law established by it in a quote he read to the committee from an article he had written while on the Court.
[O]ur Court, along with every institution of democracy, is not
immune to criticism of its action. I agree with a New York Times editorial comment on this subject: 'Unlimited public discussion is a primary safeguard of our democracy. ... The decisions of the Supreme Court are written by men on paper, not by gods in letters of fire across the sky. Critics may distort them. But the Court will have to trust the good sense of the people, just as the people trust the good sense of the Court.' I trust the good sense of the people to recognize that although the Court is a proper subject of public comment and criticism, what should not be called into question is our allegiance as a nation and a people to government under law-for on this, as Judge Learned Hand once
commented, we have truly staked our all.98 119 Cong. Rec. S3565 (daily ed. February 28, 1973). * Statement of the Honorable Arthur J. Goldberg, Hearings on Constitutional Immunity of Members of Congress Before the Joint Committee on Congressional Operations, 93rd Cong., 1st Sess., Part 1, p. 54 (1973) (hereinafter cited as Joint Committee hearings).