To those who haven’t been keeping up with recent Maine legislative politics, the majority party in the Maine State House censured and indefinitely silenced Rep. Laurel Libby (R-Auburn) in February. Maine Policy Institute released a series of posts that went into many of the most critical factors in the court case, which can be found here. However, Speaker Fecteau has now filed his response motion, and contained within it is Attorney General Aaron Frey’s best attempt to pick apart the arguments of Laurel Libby’s lawyer. 

It is important to remember that the Maine legislature selected AG Frey by secret ballot, making Speaker of the House Ryan Fecteau one of the most important people for him to impress. It should not be surprising that A.G. Frey does his best to counter the legal arguments of Rep. Libby’s attorneys. However, Frey’s best is still full of holes. Additionally, this case is a steeply uphill battle, and only a few federal cases tear his arguments to shreds.

For those unfamiliar with legal processes, the most important factor for courts when interpreting laws is legal precedent, which is, “What have other courts ruled on this in the past?” Thus, about 90% of an attorney’s job is to convince the judge that previous rulings agree with their side more than their opponents. Therefore, when approaching the filing by A.G. Frey, I would like to prepare us all with three previous court cases that Rhode Island District Judge Melissa R. DuBose will consider in her ruling.

The Major Precedents Supporting Rep. Libby

The first relevant case is a 2022 case out of Oregon, Boquist v. Courtney. In this case, the minority Republican Party staged a walkout of a floor meeting to deny Democrats a quorum to pass bills. Several verbal arguments erupted, and in retaliation, one Republican was told he could no longer enter the state Capitol without giving 12 hours of notice. The Ninth Circuit Court ruled that this was an unfair denial of his rights as a legislator, because even a right delayed is a right denied. The court quoted N.A.A.C.P. v. Richmond, stating “[A]ll advance notice requirements tend to inhibit speech. The simple knowledge that one must inform the government of his desire to speak… discourages citizens from speaking freely.” Thus, by forcing the state Senator to jump through hoops before using his speech rights, the Oregon Senate was found to be violating his speech rights.

The second is a 1966 Supreme Court case, Bond v. Floyd. In this case, the Georgia House of Representatives refused to seat a duly elected member of the House for his opposition to the Vietnam War. In its ruling, the Supreme Court held that while legislatures may impose requirements for serving as legislators, they may not limit their capacity to express views on local, national, or controversial policies. Additionally, they ruled that First Amendment standards for legislators may not be stricter than those applicable to private citizens.

The last of the three relevant cases is another Supreme Court case, the 1977 case Wooley v. Maynard. Here, New Hampshire required all its citizens to display license plates with the motto “Live Free or Die.” The plaintiffs in this case were Jehovah’s witnesses who objected to being forced to display a political message, as their opinion was that life was more important than freedom. The court here ruled that New Hampshire could not force its citizens to display the state motto on their license plates, and Chief Justice Burger wrote that the First Amendment included “the right of individuals to hold a point of view different from the majority and to refuse to foster … an idea they find morally objectionable.”

Legislative Immunity

Now that these three cases have been addressed, we can examine what AG Frey argued in his brief and how these cases undermine his arguments.

The first issue he raises is “legislative immunity.” This is quite similar to the qualified immunity that police sometimes use. Some think this type of immunity means “we’re the Legislature and we can do whatever we want,” but they’re wrong. As the Legal Information Institute at Cornell noted, legislative immunity is entirely a creation of the federal and state constitutions’ “Speech and Debate” clauses. Of course, the idea that the “Speech and Debate” clause empowers the Legislature to silence speech and debate is silly. Still, the cases cited above have something to say about the limits of legislative immunity, too.

In the case Bond v. Floyd, the Supreme Court ruled on a case of the Georgia legislature refusing to accept a fellow member, clearly an issue that would be traditionally an internal legislative act. However, when constitutional rights are on the line, in both Bond v. Floyd and this case, federal courts are known to traditionally step in due to the Supremacy Clause of the US Constitution trumping the internal rules of mere state legislatures. This is how federal courts often interpret Floyd, which would likely lead to the Rhode Island District Court ruling against Frey, saying that legislative immunity doesn’t protect the defendants (Speaker Ryan Fecteau) here.

First Amendment

The second and most crucial issue is the First Amendment rights of Rep. Libby and her constituents. AG Frey cites cases like Houston Community College System v. Wilson, where the Supreme Court ruled that Community College board member censures didn’t violate the freedom of speech. He did conveniently leave out of his response the quote from that case that the court only ruled the way it did  “because the censure did not result in any hindrance of his (the member’s) ability to exercise his free speech in his capacity as an elected official and member of the public.”

AG Frey does mention Boquist, but attempts to argue that Libby’s case is different from Boquist’s, as his 12-hour waiting period restricted all of his rights, while Libby’s censure only restricted some of hers. This argument is both factually incorrect and, on its face, absurd. AG Frey  at one point argues that some of Libby’s legislative powers were not infringed, including her ability to “provide constituent services and usage of legislative staff.” 

However, they fail to note that in the Boquist case, technically, the legislator could do both of those things unimpeded despite the required 12 hours notice to enter the Senate. To provide constituent services and to use legislative staff in Oregon, one need not enter the Capitol building at all, as the building is equipped with phones. Thus, the AGs argument that the Boquist case is different from this one, as it took away all of the state Senator’s rights, is factually wrong, as both that case and this one are partial deprivations of legislative powers.

Here, the Ninth Circuit Court found that inhibiting only specific legislative powers, such as appearing on the floor or in committee without 12 hours’ notice, is an unjust First Amendment restriction. To those concerned about a Rhode Island First Circuit Judge not being impartial in this case, the fact that the San Francisco-based Ninth Circuit was willing to rule similarly should be a good sign for the plaintiffs here.

Controversial Speech

AG Frey points out that Libby could’ve reasonably “drawn a distinction between social media posts showing unnamed children in uncontroversial contexts, and Rep. Libby’s post naming and depicting a child in an inflammatory context that would foreseeably jeopardize the child’s health and safety.” By his own words, Libby’s censure was in part due to the context being controversial. 

Yet we can compare this with a quote from the Supreme Court in Bond v. Floyd “[l]egislators have an obligation to take positions on controversial political questions so that their constituents can be fully informed by them” (emphasis added). On the one hand, the Attorney General of Maine claims that legislators are responsible for avoiding controversies. On the other hand, the Supreme Court states legislators should address controversies. It takes no legal scholar to tell who trumps whom here.

Equal Protection

When addressing the equal protection claims, Aaron Frey relies heavily on a case out of New York, Monserrate v. New York State Senate, where a legislator’s expulsion was questioned due to its harm to his voters’ voting rights. He uses it to argue that constituents’ rights are not harmed by expulsions or temporary removal of legislative power. First, remember that AG Frey has consistently insisted that Libby’s censure is not an effective expulsion, but now he very comfortably compares her censure to a court case regarding expulsions. If these two things were indeed apples and oranges, it would not be necessary for him to compare them so frequently.

Additionally, the Monserrate case is distinguishable from Libby’s in several ways. One is that the legislator there was expelled, meaning the voters would be given a special election to replace him. The court specifically noted that “the Special Election will reduce any burden imposed on voting rights. It will (i) reduce the amount of time that the voters of the 13th Senatorial District are without representation, (ii) allow those voters to exercise their voting rights anew, and (iii) provide those voters an opportunity to re-elect Monserrate should they choose to do so.” 

None of these things were afforded to Laurel Libby’s voters. They can not replace her via special election, have no reduced time to the next election, and have no means to electorally express their approval or disapproval of her actions through reelection. If anything, this case helps Rep. Libby. It certainly doesn’t hurt her. AG Frey keeps citing cases undermining his argument, proving his position’s relative weakness.

Due Process

Here, Frey relies heavily on how old the censure rule of Maine is, and points out that some other states have had these rules before, a few even having them today. It’s unclear why he mentions any of these things, as something being old does not make it automatically legal. He essentially makes the argument that someone caught speeding would make: “but everyone else is doing it!” The big difference is that he could only point to two states out of fifty that have similar, largely unused, rules today.

Frey’s legal argument against due process is that Laurel Libby wasn’t effectively expelled because she was not a victim of “total and complete disenfranchisement.” This fails major legal rules against absurdity, because it implies that as long as a state legislator has only been 99% disenfranchised, she was not technically expelled. 

Frey also fails to address the genuine procedural concern, which blends speech and due process issues into one. To access her constitutional rights as a state legislator, Laurel Libby has been ordered by the speaker to apologize. This requires her to not only back away from her stance on a controversial political issue, but also forces her to effectively admit to wrongdoing. 

This is where the third case I mentioned, Wooley v. Maynard, comes in. As the court stated in that case, “We begin with the proposition that the right of freedom of thought protected by the First Amendment against state action includes both the right to speak freely and the right to refrain from speaking at all.” By establishing a legal process that requires Laurel Libby to affirmatively apologize to regain her and her constituents’ constitutional rights, she has been deprived of fair due process of law.

Frey would argue that the legislature is an exception to this rule, as they are the ones who write the laws, and they need to be independent of judicial review. An earlier quoted case in Wooley, the 1940 case Minersville School District v. Gobitis, stated when discussing mandated pledges of allegiance, “a ceremony so touching matters of opinion and political attitude may [not] be imposed upon the individual by official authority under powers committed to any political organization under our Constitution.”

Is apologizing for making a Facebook post about trans student athletes more inherently political than saluting the flag, or less? If no political organization under our constitution may dictate such a political ceremony, then the apology the House has demanded from Laurel Libby is a procedural requirement entirely at odds with our nation’s constitutional order.

Guarantee Clause

Laurel Libby’s counsel claims that her censure violated not just the above clauses, but also the clause of the US Constitution that guarantees a “republican form of government.” In his rebuttal, A.G. Frey claimed that the Supreme Court has previously ruled in Rucho v. Common Cause (2019) that the guarantee clause is entirely outside of the courts’ purview, claiming the clause is “non-justiciable.” While Frey’s argument holds water with this claim, this may be the shakiest legal argument Rep. Libby makes and Frey overexaggerates the weakness of her arguments.

In his rebuttal, Frey quotes the Supreme Court in Rucho: “The Court has several times concluded that the Guarantee Clause does not provide the basis for a justiciable claim.” However, he failed to include the following line in the ruling: the court specifically did not “consider whether any claim under the Guarantee Clause might be justiciable.” Thus, he was utterly wrong to claim that this case was a ruling by the Supreme Court that the guarantee clause was non-justiciable, and the 1992 case of New York v. United States provides a more balanced view of the guarantee clause. 

In New York, Justice O’Connor wrote for the majority, “We doubt that courts will ever be able to develop judicially manageable standards for deciding whether a state’s republican character has been diminished. But we need not resolve that question today. Even if we assume that [the Guarantee Clause] provides a judicially enforceable limit on federal action, we conclude that Congress has not crossed the line.” Thus, while the court here doubted the ability of judges to create an exact test, the fact that it could determine if Congress’s conduct was in violation implies that one can tell when behavior does or doesn’t violate the clause. 

Furthermore, while other federal courts have always viewed this clause as quite limited in its application, they have still considered some hypotheticals to violate the clause’s language. One such case is Democratic Party of Wisconsin v. Vos, where the Seventh Circuit ruled that “existential threats to republican government” would be considered a violation of the clause. 

Other judges and legal scholars have argued that the clause should be extended further. In a law review article in the South California Law Review, Assistant Director and Director of Research Stephen Menendian at UC Berkeley wrote that: 

“The problem here is that Supreme Court precedent does not allow federal courts to entertain claims brought under the Guarantee Clause, thus far. In 1849, and again in 1946, the Supreme Court ruled that claims under this clause are non-justiciable. Prominent and notable jurists, however, would have held otherwise. In his courageous and lonely dissent in Plessy v. Ferguson, the first Justice Harlan would not only have held that the segregative railway statute adopted by the state of Louisiana and reviewed in that case violated the Thirteenth and Fourteenth Amendments to the Constitution, but also the Guarantee Clause.”

Claiming others are violating the core principles of republican government should, of course, be limited. There are, of course, cases where it is necessary to do so. It is also clear that we have widely respected sources to appeal to define and determine where those principles, and their violations, lie. In the same article, Menendian writes that:

“Federalist No. 9 explains that the “principles” of republican governance are “now well understood,” and in addition to the fundamental majoritarian principle, they include: (1) “[t]he regular distribution of power into distinct departments”; (2) “the introduction of legislative balances and checks”; (3) “the institution of courts composed of judges holding their offices during good behavior”; and (4) “the representation of the people in the legislature by deputies of their own election.”

Arguably, Speaker Fecteau’s behavior and the majority party in the Maine House have violated several of the republican principles. They have removed legislative checks and balances by effectively expelling Rep. Libby without the requisite supermajorities, and they have removed the people of Auburn’s ability to be represented by deputies of their election. The people of Auburn do not currently have a full Maine House of Representatives member, and they did properly elect Rep. Libby. 

Even if you disagree with the idea that Rep. Libby’s censure violated republican principles, I am sure you can see that a test arguably does exist. Thus, it is concerning that Frey’s rebuttal did not fully address the possibility that the US Constitution guarantees a fair and representative form of government in some capacity that courts can enforce, mainly due to his role as the official legal representative of the entire state of Maine.

Conclusion

AG Frey’s rebuttal in defense of Speaker Fecteau may be polished, but it ultimately crumbles under the weight of precedent, principle, and constitutional clarity. From Boquist and Bond, to Wooley and beyond, the legal groundwork Rep. Libby’s attorneys have laid is well-founded and compelling in its challenge to the erosion of representative democracy. Frey’s strategy—to stretch strained comparisons, selectively quote rulings, and dismiss constitutional guarantees as unenforceable—fails to reckon with the larger truth: You cannot silence a legislator without silencing her voters, and you cannot demand an apology for political speech without compelling ideological conformity.

This is not just a legal dispute over decorum or punishment—it is a case about whether legislative leaders can override the electoral will of Mainers without consequence, and whether our Constitution offers any remedy when they do. Frey’s arguments hinge on abstractions and technicalities, while Libby’s attorneys ground theirs in history, precedent, and the very first principles of American governance.

Ultimately, this case presents the court with a stark question: Does a legislator serve at the pleasure of party leadership, or at the will of the people who elect them? The answer must be the latter if the Constitution means what it says. And if the courts are still guardians of those constitutional guarantees, then Rep. Libby’s rights—and those of her constituents—deserve their complete protection.