In the first installment of this series, we explored the background and political context surrounding Rep. Laurel Libby’s censure by the Maine House of Representatives. Now, we turn to the heart of her federal lawsuit: her legal claims under the U.S. and Maine Constitutions. In her lawsuit, she alleges Speaker Ryan Fecteau violated several of her constitutional rights by censuring her and removing her ability to speak or vote in the Maine House of Representatives.
This post examines the free speech implications, due process violations, and the unprecedented requirement for an apology as a condition for reinstating her legislative privileges. While Speaker Fecteau has previously asserted the long tradition of this censure policy’s usage, a state House rule, even a very old one, does not circumvent or overrule the core constitutional rights of members of the Legislature.
Free Speech and the First Amendment + State Constitutional Rights
A foundational claim in Rep. Libby’s lawsuit is that her censure—and its subsequent consequences—violated her First Amendment rights. The right to free speech extends to elected officials, mainly when they engage in political discourse on matters of public concern.
The right to free speech is confirmed in the U.S. Constitution’s First Amendment and the Maine State Constitution’s Article I Declaration of Rights. Additionally, in Maine Constitution Article IV, Part 3, Section 8, the freedom of debate for state legislators is protected: “..no member shall be liable to answer for anything spoken in debate in either House, in any court or place elsewhere.” Considering that many members of the public engage in political debates on Facebook and Gov. Mills’ statement that these issues are, in fact, “worthy of a debate,” Rep. Libby’s post here may directly fall under Maine Constitutional speech protections.
Furthermore, Rep. Libby’s Facebook post regarding a trans athlete falls squarely within the realm of political speech, as it addressed gender identity in athletics, a contentious and policy-relevant issue.
Unlike traditional censures, which serve as formal statements of disapproval, the Maine House’s version actively punishes the speech by stripping the legislator of their ability to participate in legislative debate and voting if they do not apologize. This is tantamount to government retaliation against protected speech.
Courts have repeatedly ruled that government bodies may not silence elected officials merely because their views are unpopular or controversial. The precedent set by Bond v. Floyd (1966) supports this argument, wherein the U.S. Supreme Court held that a state legislature could not exclude a duly elected member based on his political views. In that case, an elected member of the Georgia House of Representatives was petitioned for removal due to his opposition to the Vietnam War. The Supreme Court of the United States ruled that “Just as erroneous statements must be protected to give freedom of expression the breathing space it needs to survive, so statements criticizing public policy and the implementation of it must be similarly protected.”
Additionally, the doctrine against viewpoint discrimination strengthens Libby’s case. The Maine House has not enforced similar penalties on Democratic legislators who have made posts identifying or showing specific minors, which shows it is specifically what she said, rather than how she said it, that led the House to censure her.
Due Process Violations under the Maine and U.S. Constitutions
The due process clause of the Fourteenth Amendment protects individuals from government actions that deprive them of fundamental rights without fair procedures. Maine’s Constitution provides similar protections under its due process provisions.
Libby argues that she was effectively expelled from the Legislature since her censure results in the loss of voting and debating on the House floor, and this process violates her due process rights. This is because the Maine Constitution clarifies in Article IV, Part Three, Section 4 that each House of the Legislature may “with the concurrence of 2/3, expel a member.” The argument is that since she was indefinitely denied her core powers as a legislator, she was effectively expelled from the House without the requisite two-thirds vote.
This is a very powerful claim, as both the Maine constitution and the U.S. Constitution establish the right to the due process of law. In effect, if someone wants to take away your rights or find you guilty of a crime, they must follow the established legal process to do so. Since there is no other time in Maine history that this mechanism has been used to remove a legislator’s ability to vote or speak indefinitely, the due process of expulsion was not followed when doing this to Rep. Libby.
There are several ways she might proceed with this claim, as there are multiple kinds of due process claims. One is a procedural due process claim, which argues that the established procedure to do a certain thing was not followed. Typically, this is invoked during criminal trials, when someone isn’t given a fair trial or impartial jury, but she could argue that the proper procedure to expel her was not followed. If a court agrees that she was effectively expelled from the chamber, she would have a very powerful case, especially considering her inability to defend herself, call witnesses, or issue a rebuttal.
Another way to pursue this is with a substantive due process claim. This usually does not challenge a specific application of the process but the established procedure being used. If instead of arguing that the censure rule was unfairly applied to her, Rep. Libby argued that the censure rule on its face is unfair, she could make a substantive due process claim. These are often used against government agencies when their proceedings fail to meet typical legal requirements. Since censures appear to almost universally be simply a slap on the wrist, she might have a strong claim as well that the censure rule in the Maine Legislature violates substantive due process.
The Role of an Apology: Compelled Speech or Punishment?
Perhaps the most legally novel aspect of Libby’s case is the role of the mandated apology. The Maine House’s rules state that a censured member loses the ability to vote or speak on the House floor until they issue a formal apology. On one hand, this gives Speak Fecteau some defense, as he could argue that Rep. Libby can technically apologize at any time and regain her rights. However, compelled apologies as a precondition for reinstatement of constitutional rights are virtually unheard of in American legal practice.
Under First Amendment jurisprudence, compelled speech is just as unconstitutional as suppressed speech, sometimes being treated as even more flagrantly violating the First Amendment. In West Virginia State Board of Education v. Barnette (1943), the Supreme Court ruled that the government cannot force individuals to express beliefs they do not hold, famously stating: “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion.”
In that case, the West Virginia Board of Education attempted to force public schools to include mandatory salutes to the flag, and a family of Jehovah’s Witnesses sued. The similarities between this case and Libby’s case regarding compelling her speech give her case a lot of viability in court.
Libby’s refusal to apologize is not merely a political stance but a constitutional objection to compelled speech. If the courts side with her, they may find that the Maine House’s policy violates the First Amendment by forcing legislators to adopt viewpoints they do not endorse as a condition of performing their elected duties. Apologizing for her statements could potentially be seen as an admission of guilt, which potentially violates the Fifth Amendment right against self-incrimination as well. Lastly, an apology may be seen as her backing down from the political positions she took in her post, which would directly force her to take a speaker-mandated political position.
Implications for the Lawsuit and Future Legal Precedents
Libby’s case has the potential to set a significant precedent. If a court finds that her censure violates constitutional protections, it could clarify legislative bodies’ limits for punishing members for speech. It could also affirm the rights of elected officials to express controversial viewpoints without fear of indefinite political exile.
Additionally, the outcome of this case may influence how other state legislatures handle censures and legislative discipline. A ruling in Libby’s favor could prompt reforms ensuring that censures remain symbolic rather than punitive, reinforcing that lawmakers should be accountable to their constituents, not silenced by their colleagues.
Conclusion
Rep. Libby’s legal battle is not just about her political fate; it is about fundamental constitutional principles of free speech, due process, and the limits of government power. By bringing her case to federal court, she challenges an unprecedented use of censure as a means of exclusion and forced compliance. As the case progresses, it will test the robustness of First Amendment protections for elected officials and the due process rights guaranteed under state and federal law.
The next installment in this series will delve into the injuries that the other plaintiffs in her case allege. Several of Rep. Libby’s constituents have alleged injuries related to representation in state government and democratic rights violations, which are arguably entirely separable from Rep. Libby’s injuries related to her constitutional rights.