Ousted Trans Lawmaker Follows Disney With Free Speech Suit (1)

In a concerning threat to our democracy, more state legislatures are trying to silence outvoted minority members. But lawmakers who employ these coercive tactics could face retaliation lawsuits like the one Disney filed against Florida Governor Ron DeSantis.

We’ve seen the stifling of free speech play out in Tennessee where two black legislators were ousted for supposedly overstepping rules of decorum.

The universal condemnation of that hasty action and legislators’ subsequent reinstatement by their districts should have discouraged similar tactics in other states. It didn’t, as we saw in Montana April 26.

The Montana House of Representatives removed transgender representative Zooey Zephyr from their presence and silenced her, even while allowing her to participate in legislative affairs by voting remotely, which is still a significant impairment of her elected office. Though the legislature stopped short of ousting Zephyr from office, the government impeded her rights.

Zephyr, who filed a lawsuit in state district court on May 1 to return to the House floor, allegedly stirred up her colleagues by arguing passionately that a rise in suicides was the likely consequence if the body passed legislation prohibiting gender-affirming care for minors.

At first, the House Republican leadership responded by refusing to recognize her so she couldn’t participate further in the debate. It also demanded an apology that was not forthcoming. Banishment from the chambers and a gag rule followed.

In the view of the Republican majority, Zephyr violated rules of decorum by telling legislators that passage of the bill would result in “blood on your hands” and the prohibition on care would be “tantamount to torture.”

As characterized by a group of 21 conservative legislators that ironically go by the name the Montana Freedom Caucus, Zephyr’s statements constituted “hateful rhetoric” and that her action in holding a microphone up to capture the chants of “let her speak” by her supporters constituted encouragement of insurrection.

These Montana legislators abridged Zephyr’s freedom of speech, deprived her constituents of full representation, and violated both the US and Montana constitutions.

Freedom of speech, as enshrined in the First Amendment, represents a “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.”

Apparently, Zephyr’s rhetoric, objectively mild by any measure, was deemed so tough that it sent the legislative majority into a tizzy, suggesting that they are but fragile snowflakes, an image inconsistent with Montana’s rugged reputation.

Instead of censoring Zephyr, the principle behind the First Amendment requires that however “pernicious an opinion may seem, we depend for its correction … on the competition of other ideas.”

But the Montana House shied away from that competition. That is why free speech, rather than the “decorum” excuse the majority asserted, must prevail. And, if her supporters’ chants against censoring Zephyr were too disruptive of House proceedings, the galleries could have been cleared without banishing and silencing an elected representative.

Another problem with Montana’s action is that its Constitution (Article V, Section 8) protects the legislative debate Zephyr attempted. It renders legislators immune from any sanction for statements made during debate.

As the Montana Supreme Court said, constitutional grants of legislative immunity, historically, were a response to the “British Crown us[ing] criminal and civil law to suppress and intimidate critical legislators.” The use of government’s coercive power to silence a dissident legislator can’t be justified.

Zephyr has a few causes of action available to her, including First Amendment retaliation to win restoration of her full privileges as a state representative. It is the same claim at the center of Disney’s new lawsuit against DeSantis for retaliating against it for criticizing the “Don’t Say Gay” legislation.

That Montana’s legislators are as thin-skinned as DeSantis provides no right to shelve fundamental constitutional rights. The retaliation claim’s elements consist of engaging in a protected activity, receiving a response with an adverse effect on the continuation of that protected activity, and identifying a causal connection between the response and the activity.

In 1966, the US Supreme Court restored Julian Bond to his seat in the Georgia House of Representatives after the legislature refused to let the newly elected representative take the oath of office because of his expressed opposition to the war in Vietnam. The legislature deemed his opposition as a refusal to support the Constitution, which he denied was true.

In its ruling, the court stated that 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.” Certainly, Zephyr’s views were well within that broad range.

Zephyr’s lawsuit makes these arguments to seek reinstatement in time for this week’s budget debate. The Montana House leadership may not have wanted to see Zephyr in their chambers, but now they’ll have to face her in court—and possibly again on the House floor.

(Updates headline, 5th, and last paragraphs that Zephyr filed a lawsuit to restore rights to appear on the House floor.)

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

Author Information

Robert S. Peck is a constitutional lawyer with the Center for Constitutional Litigation and has argued cases in the U.S. Supreme Court and appellate courts throughout the country.

Write for Us: Author Guidelines