Doe v. McMillan

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

No. 71-6356 Argued: December 13, 1972 --- Decided: May 29, 1973
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, [p308] 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. [n1] The report stated that these materials were included to "give a realistic view" of a troubled school and "the lack of administrative [p309] 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. [n2]

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 [p310] 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. [n3]

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. [n4] 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. [n5] We granted certiorari, 408 U.S. 922. [p311]

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. [n6] 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, [p312] 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. [n7]

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 [p313] 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. "[T]he Clause has not been extended beyond the legislative sphere," and "[l]egislative 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 [p314] 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. [n8] The reason is that republishing a libel under such circumstances [p315] 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. [n9] 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 [p316] beyond the reasonable requirements of the legislative function. [n10]

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. [n11] To hold otherwise [p317] 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 [p318] 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 Court of Appeals was correct in ruling that the action against the other respondents was foreclosed by the doctrine of official immunity, a question to which we now turn. [n12]

II

The official immunity doctrine, which "has, in large part, been of judicial making," Barr v. Matteo, 360 U.S. [p319] at 569, confers immunity on Government officials of suitable rank for the reason that

officials of government should be free to exercise their duties unembarrassed by the fear of damage suits in respect of acts done in the course of those duties -- suits which would consume time and energies which would otherwise be devoted to governmental service and the threat of which might appreciably inhibit the fearless, vigorous, and effective administration of policies of government.

Id. at 571. [n13] The official immunity doctrine seeks to reconcile two important considerations --

[O]n the one hand, the protection of the individual citizen against pecuniary damage caused by oppressive or malicious action on the part of officials of the Federal Government; and on the other, the protection of the public interest by shielding responsible governmental officers against the harassment and inevitable hazards of vindictive or ill-founded damage suits brought on account of action taken in the exercise of their official responsibilities.

Id. at 565.

In the Barr case, the Court reaffirmed existing immunity law, but made it clear that the immunity conferred might not be the same for all officials for all purposes. Id. at 573; see also Tenney v. Brandhove, 341 U.S. at 378; Dombrowski v. Eastland, 387 U.S. at 85. Judges, like executive officers with discretionary functions, have been held absolutely immune regardless of their motive or good faith. Barr v. Matteo, supra, at 569; Pierson v. Ray, 386 U.S. 547, 553-555 (1967). But policemen and like officials apparently enjoy a more limited privilege. Id. at 555-558. Also, the Court determined in Barr that the scope of immunity from [p320] defamation suits should be determined by the relation of the publication complained of to the duties entrusted to the officer. Barr v. Matteo, supra, at 573-574; see also the companion case, Howard v. Lyons, 597-598 (1959). The scope of immunity has always been tied to the "scope of . . . authority." Wheeldin v. Wheeler, 373 U.S. 647, 651 (1963). In the legislative context, for instance, "[t]his Court has not hesitated to sustain the rights of private individuals when it found Congress was acting outside its legislative role." Tenney v. Brandhove, supra, at 377. Thus, we have recognized "the immunity of legislators for acts within the legislative role," Pierson v. Ray, supra, at 554, but have carefully confined that immunity to protect only acts within "the sphere of legitimate legislative activity." Tenney v. Brandhove, supra, at 376; cf. Powell v. McCormack, supra.

Because the Court has not fashioned a fixed, invariable rule of immunity, but has advised a discerning inquiry into whether the contributions of immunity to elective government in particular contexts outweigh the perhaps recurring harm to individual citizens, there is no ready-made answer as to whether the remaining federal respondents -- the Public Printer and the Superintendent of Documents -- should be accorded absolute immunity in this case. Of course, to the extent that they serve legislative functions, the performance of which would be immune conduct if done by Congressmen, these officials enjoy the protection of the Speech or Debate Clause. Our inquiry here, however, is whether, if they participate in publication and distribution beyond the legislative sphere, and thus beyond the protection of the Speech or Debate Clause, they are nevertheless protected by the doctrine of official immunity. Our starting point is at least a minimum familiarity with their functions and duties. [p321]

The statutes of the United States created the office of Public Printer to manage and supervise the Government Printing Office, which, with certain exceptions, is the authorized printer for the various branches of the Federal Government. 44 U.S.C. § 301. "Printing or binding may be done at the Government Printing Office only when authorized by law." § 501. The Public Printer is authorized to do printing for Congress, §§ 701-741, 901-910, as well as for the Executive and Judicial Branches of Government, §§ 1101-1123. The Public Printer is authorized to appoint the Superintendent of Documents with duties concerning the distribution and sale of documents. §§ 1701-1722.

Under the applicable statutes, when either House of Congress orders a document printed, the Public Printer is to print the "usual number" unless a greater number is ordered. § 701. The "usual number" is 1,682, to be divided between bound and unbound copies and distributed to named officers or offices of the House and Senate, to the Library of Congress, and to the Superintendent of Documents for further distribution "to the State libraries and designated depositories." Ibid. [n14] There are also statutory provisions for the printing of extra copies, § 702, bills and resolutions, §§ 706-708, public and private laws, postal conventions, and treaties, §§ 709-712, journals, § 713, the Congressional Directory, §§ 721-722, memorial addresses, §§ 723-724, and the Statutes at Large, §§ 728-729. Section 733 provides that

[t]he Public Printer on order of a Member of Congress, on prepayment of the cost, may reprint documents and reports of committees together with the evidence papers submitted, or any part ordered printed by the Congress. [p322]

With respect to printing for the Executive and Judicial Branches, it is provided that

[a] head of an executive department . . . may not cause to be printed, and the Public Printer may not print, a document or matter unless it is authorized by law and necessary to the public business.

§ 1102(a). The executive departments and the courts are to requisition printing by certifying that it is "necessary for the public service." § 1103.

The Superintendent of Documents has charge of the distribution of all public documents except those printed for use of the executive departments, "which shall be. delivered to the departments," and for either House of Congress, "which shall be delivered to the Senate Service Department and House of Representatives Publications Distribution Service." § 1702. He is thus in charge of the public sale and distribution of documents. The Public Printer is instructed to

print additional copies of a Government publication, not confidential in character, required for sale to the public by the Superintendent of Documents,

subject to regulation by the Joint Committee on Printing. § 1705.

It is apparent that under this statutory framework, the printing of documents and their general distribution to the public would be "within the outer perimeter" of the statutory duties of the Public Printer and the Superintendent of Documents. Barr v. Mateo, 360 U.S. at 575. Thus, if official immunity automatically attaches to any conduct expressly or impliedly authorized by law, the Court of Appeals correctly dismissed the complaint against these officials. This, however, is not the governing rule.

The duties of the Public Printer and his appointee, the Superintendent of Documents, are to print, handle, distribute, and sell Government documents. The Government Printing Office acts as a service organization for the branches of the Government. What it prints is produced [p323] elsewhere, and is printed and distributed at the direction of the Congress, the departments, the independent agencies and offices, or the Judicial Branch of the Government. The Public Printer and Superintendent of Documents exercise discretion only with respect to estimating the demand for particular documents and adjusting the supply accordingly. The existence of a Public Printer makes it unnecessary for every Government agency and office to have a printer of its own. The Printing Office is independently created and manned, and invested with its own statutory duties, but we do not think that its independent establishment carries with it an independent immunity. Rather, the 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 fool-proof method for manufacturing immunity for materials which the court would not otherwise hold immune if not sufficiently connected with the "official duties" of the department. Howard v. Lyons, 360 U.S. at 597.

Congress has conferred no express statutory immunity on the Public Printer or the Superintendent of Documents. Congress has not provided that these officials should be immune for printing and distributing materials where those who author the materials would not be. We thus face no statutory or constitutional problems in interpreting this doctrine of "judicial making." Barr v. Matteo, 360 U.S. at 569. We do, however, write in the [p324] shadow of Board of Regents of State Colleges v. Roth, 408 U.S. 564 (1972), and Wisconsin v. Constantineau, 400 U.S. 433 (1971), where the Court advised caution "[w]here a person's good name, reputation, honor, or integrity is at stake because of what the government is doing to him. . . ." Id. at 437. We conclude that, for the purposes of the judicially fashioned doctrine of immunity, the Public Printer and the Superintendent of Documents are no more free from suit in the case before us than would be a legislative aide who made copies of the materials at issue and distributed them to the public at the direction of his superiors. See Dombrowski v. Eastland, 387 U.S. 82 (1967). The scope of inquiry becomes equivalent to the inquiry in the context of the Speech or Debate Clause, and the answer is the same. The business of Congress is to legislate; Congressmen and aides are absolutely immune when they are legislating. But when they act outside the "sphere of legitimate legislative activity," Tenney v. Brandhove, 341 U.S. at 376, they enjoy no special immunity from local laws protecting the good name or the reputation of the ordinary citizen.

Because we think the Court of Appeals applied the immunities of the Speech or Debate Clause and of the doctrine of official immunity too broadly, we must reverse its judgment and remand the case for appropriate further proceedings. [n15] We are unaware, from this record, of the extent of the publication and distribution of the report which has taken place to date. Thus, we have little basis for judging whether the legitimate legislative needs of Congress, and hence the limits of immunity, [p325] have been exceeded. These matters are for the lower courts in the first instance.

Of course, like the Court of Appeals, we indicate nothing as to whether petitioners have pleaded a good cause of action or whether respondents have other defenses, constitutional or otherwise. We have dealt only with the threshold question of immunity. [n16]

The judgment of the Court of Appeals is reversed in part and affirmed in part, and the case is remanded to the Court of Appeals for further proceedings consistent with this opinion.

So ordered.

1. The Court of Appeals' opinion terms the materials "somewhat derogatory." The absentee lists named students who were frequent "class cutters." Of the 29 test papers published in the report, 21 bore failing grades; all included the name of the student being tested. The letters, memoranda, and other documents relating to disciplinary problems detailed conduct of specifically named students. Some of the deviant conduct described involved sexual perversion and criminal violations.

2. The information was obtained voluntarily from District of Columbia school personnel by Committee investigator.

3. The prayer also included a request for an injunction prohibiting future disclosure of "confidential information" and requiring the District of Columbia School Board

to establish rules and regulations regarding the confidentiality of school papers and the right of privacy of students in the schools of the District of Columbia.

4. The District Court also dismissed the suit against the United States for failure to exhaust administrative remedies. 28 U.S.C. § 2675(a). That ruling is not challenged here.

5. The Court of Appeals also independently found that injunctive relief would not issue because of assurances from the federal defendants that no republication or further distribution of the report was contemplated. With respect to petitioners' request for injunctive relief against the District of Columbia officials, the Court found that, because of the adoption of new policies concerning confidential information, "there is no substantial threat of future injury to appellants."

6.

Our speech or debate privilege was designed to preserve legislative independence, not supremacy. Our task, therefore, is to apply the Clause in such a way as to insure the independence of the legislature without altering the historic balance of the three co-equal branches of Government.

United States v. Brewster, 408 U.S. 501, 508 (1972).

7. In Gravel, we held that

the Speech or Debate Clause applies not only to a Member, but also to his aides insofar as the conduct of the latter would be a protected legislative act if performed by the Member himself.

Gravel v. United States, 408 U.S. 606, 618 (1972).

8. The republication of a libel, in circumstances where the initial publication is privileged, is generally unprotected. See generally 1 F. Harper & F. James, The Law of Tort § 5.18 (1956); W. Prosser, Torts 766-769 (4th ed.1971). See also Gravel v. United States, 408 U.S. at 622-627.

9.

In Kilbourn, the Speech or Debate Clause protected House Members who had adopted a resolution authorizing Kilbourn's arrest; that act was clearly legislative in nature. But the resolution was subject to judicial review insofar as its execution impinged on a citizen's rights as it did there. That the House could with impunity order an unconstitutional arrest afforded no protection for those who made the arrest.

Gravel v. United States, 408 U.S. at 618.

10. Although, as pointed out by my dissenting Brethren, the acts of Senator Gravel were not ordered or authorized by Congress or a congressional committee, Gravel v. United States, 408 U.S. at 408 U.S. 626"]626, the fact of congressional authorization for the questioned act is not sufficient to insulate the act from judicial scrutiny. In 626, the fact of congressional authorization for the questioned act is not sufficient to insulate the act from judicial scrutiny. In Powell v. McCormack, 395 U.S. 486 (1969), for instance, we reviewed the acts of House employees "acting pursuant to express orders of the House." Id. at 504. We concluded that,

although an action against a Congressman may be barred by the Speech or Debate Clause, legislative employees who participated in the unconstitutional activity are responsible for their acts.

Ibid. See also Kilbourn v. Thompson, 103 U.S. 168 (1881); Dombrowski v. Eastland, 387 U.S. 82 (1967).

11. We have no occasion in this case to decide whether or under what circumstances, the Speech or Debate Clause would afford immunity to distributors of allegedly actionable materials from grand jury questioning, criminal charges, or a suit by the executive to restrain distribution, where Congress has authorized the particular public distribution.

12. While an inquiry such as is involved in the present case, because it involves two coordinate branches of Government, must necessarily have separation of powers implications, the separation of powers doctrine has not previously prevented this Court from reviewing the acts of Congress, see, e.g., Kilbourn v. Thompson, supra; Dombrowski v. Eastland, supra, even when the Executive Branch is also involved, see, e.g., United States v. Brewster, supra; Gravel v. United States, supra.

13. Both before and after Barr, official immunity has been held applicable to officials of the Legislative Branch. See Tenney v. Brandhove, 341 U.S. 367 (1951); Dombrowski v. Eastland, supra.

14. For the authorization to supply sufficient copies for such distribution see 44 U.S.C. § 738. The Public Printer is also required to furnish the Department of State with 20 copies of all congressional documents and reports. § 715.

15. With respect to the District of Columbia respondents, the Court of Appeals found that they were acting within the scope of their authority under applicable law, and, as a result, were immune from suit. We do not disturb the judgment of the Court of Appeals in this respect.

16. We thus have no occasion to consider Art. I, § 5, cl. 3, which requires that

Each House shall keep a Journal of its Proceedings, and from time to time publish the same, excepting such Parts as may in their Judgment require Secrecy . . . ,


nor need we deal with publications of the Judicial Branch and the legal immunities that may be attached thereto.
Comments