Below is today’s column on the aftermath of the Joe Wilson controversy. The threat of the Democrats to punish members using certain words to criticize the President raises some novel and unresolved constitutional questions.
When Does Disrespect Become Disorder?
This month, Rep. Joe Wilson (R-S.C.) achieved unique ignobility as the first Member of Congress to be formally admonished for an outburst during a presidential address. Indeed, Wilson’s most memorable words in his entire career will likely be his two-word rebuttal to President Barack Obama: “You lie!”
Wilson’s lack of personal control and proper decorum, however, may have a more lasting impact on the speech of his colleagues. House Rules Chairwoman Louise Slaughter (D-N.Y.) is warning Members that they will face punishment if they engage in improper forms of speech. Specifically outlawed are references to any president as a “liar,” “hypocrite,” “intellectually dishonest,” or to conduct by a president as “cowardly,” “giving aid and comfort to the enemy,” or involving “sexual misconduct on the president’s part.”
The House rules pit the inherent authority of Congress over its own affairs against the inherent rights of individual Members, particularly their rights of free speech and full representation.
The framers had few illusions of the type of people who often seek power and public acclaim. James Madison stated in The Federalist Papers No. 57: “The aim of every political constitution is, or ought to be, first to obtain for rulers men who possess most wisdom to discern, and most virtue to pursue, the common good of society; and in the next place, to take the most effectual precautions for keeping them virtuous whilst they continue to hold their public trust.”
The desire for a virtuous Congress has long since yielded to the more practical objective of maintaining an orderly Congress. The Constitution expressly leaves it to Congress to determine the rules governing the conduct and qualifications of Members. Section 5 of Article 1 states that each house of Congress “shall be the Judge of the Elections, Returns, and Qualifications of its own Members” and specifically allows each to “punish its Members for disorderly Behavior.” This included the power “with the Concurrence of two-thirds, [to] expel a Member.”
The use of the word “disorderly” captures the proper emphasis of rules restricting Members. The need to prevent disorder is different from preventing disrespect. Yelling during a presidential address causes disorder and is thusly a proper focus of discipline. However, like many matters of protected speech, the right to regulate depends on the time, place and manner of the restrictions. Under the First Amendment, words at one time or in one place may not be protected while the same words at a different time or place are protected. That should be the case with the words “you lie.”
Ironically, Wilson was not subject to the speech rules since the House was in joint session. However, the House reserves the right to enforce a particular rule: “a lawmaker shall conduct himself at all times in a manner which shall reflect creditably on the House of Representatives.”
In most prior cases, this rule has been used for the noncontroversial purpose of punishing Members who have been convicted or accused of criminal acts. Yet, the language is equally applicable to otherwise protected speech. The House rules go beyond bad conduct and encompass bad manners. While courts have overwhelmingly deferred to Congress in such matters, a challenge to a restriction on the content of legislative remarks could force an exception to this principle.
Wilson was properly sanctioned for screaming out during a presidential address. It was a rude and uncivil act that demeaned the entire Congress. However, he has a right to say that a president is lying. Indeed, presidents have lied throughout history on matters great and small. One of the most important functions of a Member of Congress in our system of checks and balances is to call a president to account for falsehoods.
If the president’s party can prevent a Member from referring to him as “intellectually dishonest” or “giving aid and comfort to the enemy,” the majority can effectively script Members’ speech through a process of elimination. The framers never envisioned such a level of choreographed or controlled speech. To the contrary, “sexual misconduct on the president’s part” can be — and has been — a basis for impeachment when such conduct leads to such high crimes or misdemeanors as lying under oath. If a president traded federal positions for sexual favors, it could also be the subject of impeachment. Yet, a Member revealing such misconduct could not refer to the “sexual misconduct” directly.
Some Members in the majority after the Wilson scandal have cited the rules of Parliament. The rules of the House incorporate Section 370 of Jefferson’s Manual, which states that members in Parliament are prohibited from “speak(ing) irreverently or seditiously against the King.” While there are many parliamentary traditions that would be worthy of duplication, this is not one of them. Members should be able to speak irreverently about the head of their government. Indeed, Parliament shows the utter lunacy of these rules by prohibiting certain forms of language like calling the prime minister a “liar,” but members routinely engage in rude outbursts and shout at the prime minister during question sessions. Parliament has it reversed: It should prohibit the outbursts while allowing members to speaking truthfully of their views of a prime minister. The former causes disorder while the latter is merely disrespectful. It is the shouting and catcalling that is out of place — not the frank expression of a member’s view.
None of this means that rules should not discourage the use of such words. Calling a president or another Member a liar is a juvenile habit. However, the House rules suggest that a Member can be punished for using these words, which may accurately describe the view of the Member. The fact is that a president can be a liar or a sexual deviant or both. In such cases, Representatives have not only a right but a duty to confront the executive and his party.
Securing judicial review of such rules may not be easy absent an actual enforcement against a Member. Of course, Members could trigger the rule by marching to the floor to proclaim, “The president is a lying, hypocritical, intellectually dishonest man who is giving aid and comfort to the enemy” — or some variation of that theme. None of that is true, of course, but sometimes a constitutional claim can only be found on the other side of calculated rudeness.
Wilson picked the wrong time and place to cry “You lie!” and was worthy of admonishment. However, when given in the course of legislative debate, punishment for such speech puts the lie to the free speech guarantees in our Constitution. Congress should focus on disorder and let voters focus on decency among its Members.
Jonathan Turley is the Shapiro professor of public interest law at George Washington University.
Roll Call Column — September 24, 2009
i want to be jonathan turley when i grow up. seriously. you’re brilliant.
“If men were angels…. If angels were to govern”
“[The great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others. The provision for defense must in this, as in all other cases, be made commensurate to the danger of attack. Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place. It may be a reflection on human nature, that such devices should be necessary to control the abuses of government. But what is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.” Federalist 51
And if Obama was anything resembling an angel, he wouldn’t be embracing the policies (laws?) put in place by the previous Executive who pissed on the separation of powers doctrine (i.e. Article IV) to put said policies in place.
Oh wait, if you’re a Republican, said urination did not take place; and if you’re a Democrat it’s far better to ‘move on’ than to engage in any confrontational behavior about said urination on said constitution.
Tell me I’m wrong.
dS = dQ/T
I’m sorry. Was there something offensive about that last post I made that’s now missing? It was 100% invective free. I was simply asking for charles to clarify his position.
I don’t understand this post. Wilson broke no law and was not convicted or even accused of doing so. The First Amendment is not in play if what he did was legal. He was “admonished”, whatever that is worth. He broke a club rule. If people can sign up for clubs, organizations, places of business, etc. and agree to the rules of those organizations, and then break those rules, but then claim 1A privilege, chaos will ensue.
You even say he was admonished for how he did his speech, not what he said. This is not a 1A issue.
charles:
I am not a lawyer so forgive me. I think the Supreme Court opened Amendment I to “contemplation” when they approved the McCain-Feingold bill. Definitely a limitation on free speech.
I worked for an association at one time and they actually wrote laws that helped their members. Somehow I cant see Jefferson or Madison viewing this with approbation. What has happened is that an elite few, K St. lobbyists, have a huge bearing on the direction of our nation. While they do have the right to lobby they don’t necessarily have the best interests of the United States or it’s citizens in mind. There is entirely too much money brought to bear on congress for the purpose of private gain. And at the expense of a truly competitive market.
I point you to a movie titled Tycoon with Clark Gable about the oil field and one mans rise to prosperity. Basically other companies tried to take him down using the full force of the federal government. I am sure there are many other examples of K St. trying to protect their clients turf by restrictions to entry through the use of campaign contributions and other enticements.
I believe that K St is an impediment to market forces and as such not in the best interest of the United States or her citizens. Free speech is one thing but paying for economic protection is quite another.
http://www.nybooks.com/articles/23110?email
In a country that has little interest in such things there is an important issue here that has caused me to make my first comment which is not primarily sarcastic in this section of this blog. The US President is both Chief Executive and Head of State. To call the Chief Executive a liar is most certainly a valid political exercise and entirely apropriate in our system if a member of Congress thinks he is a liar. As Head of State the President’s right to courtesy in the chamber of a JSoC may be substantial. Thus the British Commons are not comparable in their free discussion. But this is just one of the many signs that we don’t have what it takes to govern anymore. One has to care about these things and would not allow for the cable studio of empty chairs Congress has become if one did care.
“While there are many parliamentary traditions that would be worthy of duplication, this is not one of them. Members should be able to speak irreverently about the head of their government. Indeed, Parliament shows the utter lunacy of these rules by prohibiting certain forms of language like calling the prime minister a “liar,” but members routinely engage in rude outbursts and shout at the prime minister during question sessions. Parliament has it reversed: It should prohibit the outbursts while allowing members to speaking truthfully of their views of a prime minister. The former causes disorder while the latter is merely disrespectful. It is the shouting and catcalling that is out of place — not the frank expression of a member’s view.”
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One of the things I learned on my visits to London was the exact dimensions between the opposing parties benches in the House of Commons. Though a cramped space for such an auspicious body, the architect, Charles Barry, had the good sense to design the bottom facing benches exactly two sword lengths from each other and to insert a large table between them to hold the ceremonial Mace. The Speaker sits at the head of the chamber between the opposing sides, the imposing Mace ever at hand. The reasons seem obvious enough; may we never reach that point.
“Buddha:
Isn’t the solution to eliminate K St?”
Byron,
That is an excellent solution, but also would require massive changes in our campaign laws and more than a few other things. I fear at times that the country has passed the point of no return regarding corporate control, but even so we can never give up the fight to take it back.
Amendment I
Amendment I
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.
I think this says it all
PS. Really nice piece, Professor. I was particularly saddened by this does of reality, though:
“The desire for a virtuous Congress has long since yielded to the more practical objective of maintaining an orderly Congress.”
Sad, but true.
How about banning the word “Patriot” from legislative title language?
Byron,
Short answer: Difficult but not impossible although there would be Federalist challenges, litigation based on the Supremacy and Commerce clauses with some legitimate issue in addition to the noted K St. backlash. The Constitution’s definitions of the the qualities of legislative members and their job duties are defined at a minimum by the Constitution but I can think of no reason why something like term limits imposed from the local level shouldn’t be well within the state’s right to add additional restrictions to the job as long as they are not unconstitutional per se (e.g. a religious test for office or lowering the age qualifications). The real battle would be over commerce. And in truth that’s the nature of the battle now. 1% of the population is trying to privatize 99% of the resources. Legal structures are a mechanism. Like any tool, they can be used, abused or misused. Ours has been severely misused by the bad actors hiding behind the fiction of corporations. The nature of the battle can be framed in these terms: The battle against fascism is the battle to determine whether our mechanisms work for us as a species or do we as a species work for our mechanisms.
I know which outcome I prefer.
Buddha:
how hard would it be to change the constitution through the state process to limit terms to 6 for congressional and 2 for senate as well as eliminating lobbying and corporate welfare, ie subsidies directly to corps.
Could it even be done, the K St bunch would pull out all the stops to squash anything that would eliminate their gravy train. Would it even be constitutional? Could it be construed as a limitation on free speech?
“Wilson picked the wrong time and place to cry “You lie!” and was worthy of admonishment. However, when given in the course of legislative debate, punishment for such speech puts the lie to the free speech guarantees in our Constitution. Congress should focus on disorder and let voters focus on decency among its Members.”
If I do recall correctly, “Each house shall be responsible for the qualifications of its members.” I believe that this came about after a congressman was elected from WI in the 20’s and had opposed war. He had been convicted of a misdemeanor. The house did not want to seat him for the conviction.
“HOUSE AGAIN DENIES BERGER HIS SEAT; Refuses by Vote of 328 to 6 to Admit Milwaukee Socialist to Membership. MANN OPPOSES REJECTION Berger Reiterates Opposition to War–Promptly Renominated at Milwaukee. Berger Says He Will Run Again. HOUSE AGAIN DENIES BERGER HIS SEAT Berger Is Renominated.”
http://query.nytimes.com/mem/archive-free/pdf?_r=1&res=9B03E4D9153EE433A25752C1A9679C946195D6CF
So the bottom line the party in the majority can control who sits and who does not.
For example:
http://www.huffingtonpost.com/2009/09/23/pat-roberts-pleads-for-th_n_297563.html
Byron,
Absolutely putting the brakes on K St. would fix many of our problems. As far as systemic analysis goes, corruption is the number one problem. That problem is directly and causally related to how private money is allowed to interact with the governmental processes. Ergo, if the goal is the elimination of corruption, then the Occam’s Razor solution is to eliminate the source of the corruption which in this case is K St. lobbying/graft peddling, reforming campaign finance laws uniformly and nationally, and making the Right to Petition easier to access for the natural citizen in combination with eliminating the Right to Petition for the legal fiction of corporations completely (instead of the situation today where they are essentially allowed to self-regulate).
Buddha:
Isn’t the solution to eliminate K St? Lobbying is not constitutionally protected as far as I know and doesn’t it have it’s origins during the Grant Administration when people would sit in the lobby of some hotel that President Grant frequented and they would try to collar him and talk to him for a few minuets about their concerns or issues?
We would have less laws and no corporate “oversight” of congress.
“liar,” “hypocrite,” “intellectually dishonest,” or to conduct by a president as “cowardly,” “giving aid and comfort to the enemy,” or involving “sexual misconduct on the president’s part.”
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Out of that list, only one item has no relevance to job performance and that’s sexual misconduct. That’s the only one that should be banned. The other challenges should be mandatory, not forbidden. If Bush didn’t teach Congress the lesson that sometimes you just have to call a lying, intellectually dishonest, cowardly traitor just as you see them to avoid trouble, then I’m not sure what will.
Any President worth his mettle should be able to defend against charges he’s a liar, a hypocrite and a traitor – even informally – from a Representative or a Senator. It’s that simple. Removing the ability to challenge them, especially over treason being it is the only Constitutionally defined crime, may be in fact disorderly but as we’ve all seen there can be a difference between “civil” and “effective”. I could give a damn about the breakdown of civility in Washington. If it went away completely it would only match exactly their effectiveness as leaders and that goes for the graft weasels in BOTH parties. They could be kicking each others asses in the aisles for all I care if they’d just do their damn job as described by the Constitution and quit sucking off the corporate teat. Congress is filled with greedy sociopathic narcissists and this proposal is just another shield for them to hide behind. “You can’t charge me with a crime! It’s against the rules! Waaa waaa waaa!” Well, as one of the ACTUAL employers of Congress I’d just like to sum up my feelings with a couple of questions for the members of that august body.
Guess which finger I’m holding up? Now how about a little less ass covering for your criminal graft swilling selves and a lot more work for We the People? Before you force Our collective hands, you fascist half-wits.