Why It is Pointless to Sue a Member of Congress for Defamation

        The D.C. Circuit just threw out the defamation suit filed by U.S. Marine Sergeant Frank Wuterich against Congressman John Murtha.  Wuterich alleged that Murtha, in a series of interviews with the media, made false and defamatory comments regarding the conduct of the squad led by Wuterich in Haditha, Iraq, in 2005.  Specifically, Murtha, according to the complaint, suggested that Wuterich and his squad were responsible for the “cold-blooded massacre” of Iraqi civilians.  

            Those familiar with a Supreme Court case called Hutchinson v. Proxmire, 442 U.S. 111 (1979), might assume that Wuterich would be entitled to his day in court.  In Hutchinson, the Court considered whether Senator Proxmire enjoyed constitutional immunity from a tort action brought by a research scientist who alleged that Proxmire had injured his reputation by disparaging, through a speech and press release, the scientist’s federally-funded research (into certain animal behaviors) as a waste of taxpayer money.

            The Court concluded that the Speech or Debate Clause did not protect Proxmire from the lawsuit.  The protections of the Clause are limited to “legislative activities,” and the Court found that “[w]hatever imprecision there may be in the term ‘legislative activities,’ it is clear that nothing in history or in the explicit language of the Clause suggests any intention to create an absolute privilege from liability or suit for defamatory statements made outside the Chamber.”   In reaching this conclusion, the Court relied heavily on the fact that Members of the British Parliament, at the time the Constitution was drafted, were privileged for remarks made in Parliament, but not for the republication of those same remarks elsewhere.

            The Court also quoted the following from Justice Story’s Commentaries on the Constitution:  “No man ought to have a right to defame others under the colour of a performance of the duties of his office.  And if he does so in the actual discharge of his duties in congress, that furnishes no reason why he should be enabled, through the medium of the press, to destroy the reputation, and invade the repose of other citizens.  It is neither within the scope of his duty nor in furtherance of public rights or public policy.  Every citizen has as good a right to be protected by the laws from malignant scandal, and false charges, and defamatory imputations, as a member of congress has to utter them in his seat.” 

            After Hutchinson, a Member of Congress was entitled to immunity for statements made “in his seat,” i.e., on the floor or in committee proceedings, but was liable as other citizens for defamatory remarks in the press or elsewhere outside of the legislative body.  This state of affairs changed, however, in 1989 when Congress passed the Westfall Act, which among other things extended existing tort protection for executive branch officials to “officers and employees” of the “the judicial and legislative branches.” 

           As a result of this legislative change (apparently made without much notice or discussion), Members of Congress were made immune from liability for torts committed within the scope of their office or employment.  The key question becomes whether an alleged tort was within the scope.  The initial decision on this question is made by the Attorney General (which presents some interesting separation of powers questions).  The Attorney General’s certification that the Member was acting within the scope constitutes prima facie, but not conclusive, evidence in a judicial proceeding.  If the court finds in accordance with the certification, the Member is dismissed as a defendant and the United States is substituted.  For defamation and similar torts, this is fatal to the plaintiff’s case because such torts cannot be prosecuted against the United States. 

            One might think, per Justice Story, that a Member of Congress is not acting within the scope of his or her office when making “false charges” or “defamatory imputations” to the press.  The courts, however, have found otherwise, finding that a Member’s communications with the press are generally within the scope of employment.  See, e.g. Operation Rescue Nat’l v. United States, 147 F.3d 68 (1^st Cir. 1998) (Senator’s  remarks to a group of reporters following a campaign fundraiser); Williams v. United States, 71 F.3d 502 (5^th Cir. 1995) (Representative’s interview on a local television station); Chapman v. Rahall, 399 F.Supp.2d 711 (W.D. Va. 2005) (same). 

            It is very difficult to define the outer boundaries of the “job” of a Member of Congress.  Almost anything the Member does may have an impact on his relationship with his constituents.  Even matters which are indisputably personal, if they become a matter of media inquiry, can impact the Member’s image and thus affect his ability to effectively represent his constituents.  This, at least, was the reasoning of Council on Am Islamic Relations v. Ballenger, 444 F.3d 659 (D.C. Cir. 2006), where the court stated: “A Member’s ability to do his job as a legislator effectively is tied, as in this case, to the Member’s relationship with the public and in particular his constituents in the Congress.  In other words, there was a clear nexus between the congressman answering a reporter’s question about the congressman’s personal life and the congressman’s ability to carry out his representative responsibilities effectively.” 

            Given this precedent, there was never a realistic possibility that Wuterich would be able to maintain his lawsuit against Murtha.  Although the public may be surprised to learn that Members of Congress have, in effect, a license to defame private individuals, such is the current state of the law.  There are, moreover, good reasons why.  If Members of Congress feared constant lawsuits from individuals whom they criticized, there would be a significant chilling effect on their communications with constituents and the general public. 

            On the other hand, there ought to be some mechanism by which individuals who have truly been defamed can obtain a measure of redress and restore their reputations.  The House, for example, should allow plaintiffs who are unable to pursue defamation lawsuits against Members of Congress because of the operation of federal tort immunity to file complaints with the Office of Congressional Ethics.  This would be an appropriate forum for the plaintiff to prove the falsity of alleged defamatory statements and to obtain redress for the reputational injury.