A Maine state legislator has been prohibited from speaking or having her votes counted—all for a social media post critical of transgender athletes participating in women’s sports. Rep. Laurel Libby (R–Auburn) has attempted to challenge the legislature’s actions against her in court but has faced several defeats. This week, Libby filed an emergency injunction asking the Supreme Court to intervene.
“If this statement were made by a non-member of the legislature . . . it would clearly be constitutionally protected,” Nadine Strossen, the former president of the American Civil Liberties Union (ACLU) tells Reason. “So the only argument they can possibly make is that somehow you have fewer First Amendment rights when you are an elected member of a state legislative body than an ordinary citizen would have, which is completely counterintuitive and counter to not only fundamental First Amendment principles but fundamental principles of representative government.”
In February, Libby made a post on Facebook and X criticizing the state’s decision to allow a transgender girl to compete in a high school track championship. The post included the name and an unblurred photo of a transgender athlete who had won the girls pole vault after previously competing as a boy.
In the wake of the post, the Maine legislature voted to censure her. The censure resolution stated that Libby should “accept full responsibility for the incident and publicly apologize to the House and to the people of the State of Maine.” However, when summoned to the well of the House of Representative’s chamber, Libby refused to apologize. According to legal documents Libby later filed, Rep. Ryan Fecteau (D–Biddeford)—the Speaker of the Maine House—then found her in violation of a House rule that any member who “is guilty of a breach of any of the rules and orders of the House … may not be allowed to vote or speak, unless by way of excuse for the breach, until the member has made satisfaction.”
Ever since, Libby’s votes have not been counted and she has been barred from speaking on the House floor. In March, Libby sued Fecteau and the House clerk, arguing that their actions violated her First Amendment and due process rights. However, the legislature has claimed that its actions are protected by “absolute legislative immunity.” So far, this theory has worked. Both the U.S. Court of Appeals for the 1st Circuit and a lower federal court have denied her requests that the legislature count her votes. But even if Libby hasn’t succeeded so far, that doesn’t mean her First Amendment rights weren’t clearly violated.
“The core of legislative immunity is to shield lawmakers for what they say or how they vote during legislative debate and processes. That makes sense, as we want to promote free and open debate in our Houses and Senates,” JT Morris, an attorney at the Foundation for Individual Rights and Expression (FIRE), a First Amendment group, tells Reason. “But it’s hard to reconcile immunizing lawmakers who engage in free and open debate, and immunizing these Maine lawmakers who are punishing Representative Libby for her speech by stripping her ability to participate in legislative debate and voting.”
