Maine’s Shocking Assault on Democracy and Free Speech

A series of controversies in recent years have tested the line between two fundamental American values: the right of the people to elect their own representatives, and the power and duty of legislative bodies to police the conduct of their own members. In none of those controversies, however, was a legislator disciplined solely for speech — until now. The Democratic majority in the Maine House of Representatives, on a party-line vote, has stripped Representative Laurel Libby not only of her right to speak on the floor, but of her right to vote in the chamber, leaving her constituents effectively unrepresented. It did this solely to punish Libby, a Republican, for dissenting from the Democratic Party line on transgender athletes in women’s and girls’ sports. This is an outrage, and it should be treated as an outrage by the people who were screaming from the rafters at far less egregious steps taken in 2023 by the Republican majorities in Tennessee and Montana.

The Supreme Court has been asked to step in to Libby’s case, but thus far Justice Ketanji Brown Jackson has slow-walked the emergency application, sitting on it for three days and then yesterday asking for a response to be filed by next Thursday, May 8 — after the Maine house reconvenes for a floor session on Tuesday to consider measures such as the state budget and a proposed amendment to the state constitution. Jackson is thus running interference for the Maine Democrats to hold votes before the full Court can even consider Libby’s application.

This is no way to run a constitutional representative democracy.

Libby’s Case

The Libby case is only the latest in a series of escalating battles over transgenderism that have shattered the typically cordial world of Maine politics. In 2024, the progressives tried to pass a bill that would strip parents of the custody of their children if they stood in the way of “gender-affirming care” but were thwarted when Libby raised a public alarm. In February of this year, Democratic Governor Janet Mills notified Donald Trump that Maine would refuse to comply with a presidential executive order on transgender athletes. In March, the Trump administration warned Maine that it was in violation of Title IX. Legal battles have followed, with the Justice Department suing Maine under Title IX and Maine suing and obtaining an injunction over the administration suspending U.S. Department of Agriculture funds.

Caroline Downey has traced in depth how this fight has poisoned Maine’s political culture. In the midst of all that, Libby posted on Facebook in February: “This is outrageous, and unfair to the many female athletes who work every day to succeed in their respective sports. . . . I will continue to vigorously oppose all efforts to allow male athletes to compete in female athletic competitions and to demand that President Trump’s Executive Order be enforced in Maine to ensure fairness for all female athletes.” That’s pretty standard stuff of politics, complete with her insistence that she would stand with the president of the United States in demanding that federal law be upheld against state nullification.

Democrats responded with a party-line vote censuring Libby, then stripping her voting rights when she refused to apologize. Libby filed suit in March.

The sanction is unprecedented. Maine had never before stripped a legislator of the vote, nor had it ever before punished a legislator for conduct outside the statehouse. In fact, as Libby’s brief to the Supreme Court contends, her lawyers are “unaware of any decision since [1969] in which a duly elected legislator has been stripped of her vote—and her constituents stripped of their representation—for the duration of her term because of the views she holds,” and “No legislature has tried to disenfranchise a colleague’s constituents in retaliation for her speech since this Court rejected similar attempts more than a half-century ago.”

Legislative Discipline

A brief review of recent controversies in this area shows how egregious the actions of the Maine House have been:

• In 2023, two members of the Tennessee House, Justin Pearson and Justin Jones, were expelled for leading with bullhorns a protest inside the chamber that ground the statehouse to a halt. Both were swiftly returned to their seats by their constituents. This made them, unlike Libby, a front-page-news cause célèbres to the media, and to Chuck Schumer, who demanded a federal investigation into Tennessee by the Department of Justice. Of course, Pearson and Jones were punished not for their opinions but for inciting a crowd to stop the legislature from doing business — the very thing that had been the crux of many January 6 prosecutions. As I detailed at length at the time, while state legislatures have undoubted power to discipline and expel members, they typically do so over similar obstruction or over corruption or abusive behavior (including one Missouri legislator who was “an alcoholic who had engaged in physical and sexual abuse of his children and had drowned puppies”).
• Also in 2023, transgender Montana legislator Zooey Zephyr was censured for similar conduct of inciting protesters to disrupt proceedings on the Montana house floor after not being recognized to speak. Zephyr, however, was barred only from speaking and not from voting, and swiftly lost in court.
• In January 2021, Nancy Pelosi refused to seat Jim Jordan and now-Senator Jim Banks on the House January 6 committee, and Democrats voted on a party-line basis to deny any committee assignments to Marjorie Taylor Greene. In January 2023, Republicans retaliated by barring now-Senator Adam Schiff and Eric Swalwell from the House Intelligence Committee and Ilhan Omar from the House Foreign Affairs Committee. While these steps denied these representatives the power to vote in particular committees — and in Greene’s case, any committee — they did not affect their power to vote on the House floor.
• In December 2023, the House expelled George Santos, leaving his district unrepresented for over two months. This was a break with precedent because all prior expulsions from Congress had followed either a criminal conviction or treason (usually by means of joining the Confederacy). Santos, however, was at least expelled over criminal charges for which he was subsequently convicted. Bob Menendez, by contrast, was only removed as chairman of the Senate Foreign Relations Committee when he was indicted; Menendez resigned when convicted.
• In Minnesota, Democrats holding a one-seat majority have repeatedly beaten back efforts to expel or otherwise discipline Nicole Mitchell, a Democratic member under felony indictment for burglary. The chamber stopped short of what would have been a bipartisan vote to expel Justin Eichhorn, a Republican member arrested for allegedly soliciting an undercover cop posing as an underage prostitute, after Eichhorn resigned.
• In 2024, an Oregon ballot initiative disqualified nearly the entire Republican caucus in the Oregon senate from running for reelection over walkouts designed to prevent the state senate from reaching a quorum. The initiative, however, imposed no sanction to prevent either those senators or their elected successors from voting.

The Law, in Brief

While the law in this area isn’t entirely clear, Libby’s legal right to relief has serious support in Supreme Court precedent. In Bond v. Floyd (1966), the Court unanimously held that the Georgia House of Representatives could not exclude Julian Bond from being seated on the grounds that his public pacifist and anti–Vietnam War statements at least flirted with advising people to illegally resist the draft. The Court sidestepped the question of whether Bond could properly be excluded from the legislature if he refused to take a loyalty oath to the federal and state constitutions, or if his speech constituted a crime; because he was willing to take the oath and had not incited criminal activity, the First Amendment protected his right to speak without being stripped of his seat:

While the State has an interest in requiring its legislators to swear to a belief in constitutional processes of government, surely the oath gives it no interest in limiting its legislators’ capacity to discuss their views of local or national policy. The manifest function of the First Amendment in a representative government requires that legislators be given the widest latitude to express their views on issues of policy.

Three years later, in Powell v. McCormack (1969), the Court held that the U.S. House of Representatives could not prevent the seating of a duly-elected representative who met the minimum constitutional qualifications for office, notwithstanding the fact that the House is supposed to have the exclusive power under Article II to determine who meets those qualifications, and that the House nonetheless retains the power to expel members for any reason. The House was thus compelled to seat Adam Clayton Powell Jr., who was embroiled in financial scandals that ultimately ended his career soon after.

The Warren Court decisions in Powell and especially Bond were undoubtedly influenced by the fact that Bond and Powell were black legislators during the civil rights era. Race was clearly a significant factor in the Georgia legislature’s treatment of Bond. But the Court has continued in recent years to take their legal principles seriously. In Trump v. Anderson (2024), the Court took a similar tack to Powell in assessing the power of courts to bar qualified presidential candidates from the ballot. In Houston Community College System v. Wilson (2022), the Court unanimously upheld against a First Amendment challenge the actions of the board of trustees of the Houston Community College System in verbally censuring a member (David Wilson) for filing lawsuits and making accusations against the board. Even assuming that Wilson was being censured for expressive activity, the Court concluded that no right of his had been abridged by a mere verbal rebuke, even one delivered formally by the legislative body. Justice Neil Gorsuch’s opinion went out of its way to distinguish the situations in Bond and Powell:

The legislature’s action in Bond implicated not only the speech of an elected official, it also implicated the franchise of his constituents. And it involved not just counterspeech from colleagues but exclusion from office. . . . Just three years after Bond, the Court stressed the salience of these differences. In Powell . . . the Court took pains to emphasize that the power to exclude and the power to issue other, lesser forms of discipline “are not fungible” under our Constitution. . . . Mr. Wilson’s attempt to analogize his case to Bond thus conflates a distinction Powell cautioned us not to confuse. . . . Our case . . . does not involve expulsion, exclusion, or any other form of punishment.

Gorsuch thus also distinguished the case — one very familiar and objectionable to the Framers — of John Wilkes, a dissenter who was excluded from Parliament for nearly two decades beginning in 1763 for his speech criticizing the King’s ministers. But Libby’s case looks a lot more like that of Wilkes, in ways that would have alarmed the Founding generation.

The legal complication is the argument, accepted by the lower courts, that legislative immunity barred suit against the two named defendants, the speaker and clerk of the Maine house. The speaker and the clerk were named because suing the state or the Maine house themselves would raise sovereign immunity issues under the Eleventh Amendment. Notably, the lead defendant in Bond was the speaker of the Georgia house, along with other officials of the Georgia house, and the lead defendant in Powell was the speaker of the U.S. House of Representatives, sued together with the clerk of the House. If the Maine officials are immune here, that would call both Bond and Powell themselves into serious question.

When you turn on the national news, you may not hear much about Laurel Libby, or see profiles of her as a champion of free speech and democracy. And yet, she persisted.