Where elected officials have been excluded or suspended from legislative bodies for the exercise of their right of free speech, the federal courts have not hesitated to enjoin such conduct as violative of the first amendment. In Bond v. Floyd, supra, the United States Supreme Court enjoined the Georgia House from excluding Julian Bond, a duly elected representative, on the ground that his public statements in opposition to the war in Vietnam barred him from taking the oath of office. The Court found this violated Bond's right of free expression under the first amendment.
Similarly, in Kucinich v. Forbes, supra, the district court issued an injunction against a two-week suspension of Councilman Gary Kucinich by a vote of the Cleveland City Council. Kucinich was disciplined pursuant to a council rule of order, on the charge that he had slandered the council president in a statement on the floor of that body. The court found that Kucinich had been punished for the exercise of his right to free speech and not merely for parliamentary failure to yield the floor, and in reliance on Bond, inter alia, determined that this constituted a first amendment violation.
A final example comes from our own district. In Ammond v. McGahn, supra, Judge Mitchell H. Cohen issued an injunction against the exclusion of New Jersey State Senator Alene Ammond from the Democratic Caucus, in part because the exclusion was based on her exercise of the right of expression. While the Third Circuit Court of Appeals reversed the result, reasoning that the controversy had been mooted when the Democratic Caucus reinstated Senator Ammond, this holding does not disturb the basic constitutional principle that a legislator cannot be punished for the exercise of his first amendment rights.
Defendants contend that the three cited cases are fundamentally distinguishable from the instant one, because each legislator was completely barred from the legislative body in question. In this case, they argue, plaintiff is excluded only from membership on a standing reference committee and retains his right to represent fully his constituents in the full Assembly as well as through the access that any assemblyperson enjoys to committees of which he is not a member. In closing argument, counsel for defendants contended that unless there is a "clear showing of exclusion" from the legislative process, the court should not act. To the extent that defendants mean that a federal court should not entertain a suit in which a legislator raises the issue of his first amendment rights where the asserted deprivation is less than full exclusion, we do not agree.
The very same argument might have been made against Senator Ammond, since she was excluded only from the Democratic Caucus, and not from the full Assembly. Such line-drawing may also have been applied in Kucinich on the ground that the plaintiff was only suspended for a two-week period and not expelled. Distinctions on the basis of the type of sanction, once it has reached beyond the De minimis level, are not appropriate when first amendment rights are raised. The threat of removal from a powerful committee position can be every bit as chilling to the exercise of free speech as total exclusion from the Assembly.
The argument advanced by defendants that the nature of the sanction determines whether there is any constitutional right at all resurrects the discredited "right-privilege" distinction. See Elrod v. Burns, supra, 427 U.S. at 360-61, 96 S. Ct. 2673. Furthermore, we perceive nothing in the holdings or language of Bond, Kucinich and Ammond to support defendants' contention that the first amendment principle applied there is limited to the particular facts of those cases. The type of deprivation, whether it be denial of an aisle seat, a telephone or non-appointment to a committee at the beginning of a legislative session, does not dictate whether the court may make a constitutional inquiry. Rather, the defendant's action is weighed when the court, in making the proper legal analysis, balances the importance of the governmental interest against the burden on the individual's rights. E.g., Elrod v. Burns, supra at 362, 96 S. Ct. 2673; Kucinich, supra at 1111, 1115. Recognizing the political realities of the legislative process, it may well be that a court will be more deferential to the interest advanced by defendant legislators than to those of other defendants in applying the balancing test. See Village of Arlington Hts. v. Metropolitan Housing Dev. Corp., 429 U.S. 252, 268 n.18, 97 S. Ct. 555, 50 L. Ed. 2d 450 (1977); L. Tribe, American Constitutional Law 592-93 (1978).
Defendants point to Davids v. Akers, supra, as support for their argument that total exclusion of a legislator from any meaningful participation in the legislative process is a prerequisite to judicial scrutiny of the legislator's first amendment claims. The Davids Court affirmed dismissal on the merits of a complaint by minority party members of the Arizona House of Representatives, finding no first amendment violation in the system of committee appointment because each of the plaintiffs retained "the usual right of a member to speak and to vote upon matters that come before the House. . . ." 549 F.2d at 124. Stating that resort to the judicial process was an inappropriate manner of challenging a state legislature's internal practices, the court was plainly troubled by the breadth of the remedy plaintiffs sought.
The case at bar presents a completely different type of claim. Here an individual legislator was allegedly singled out and removed from an important committee at mid-session, contrary to past practice, because he exercised his first amendment rights. The relief he seeks, reinstatement on the committee, is far less disruptive of legislative procedure than the remedy sought in Davids, and is analogous to that granted in Bond, Kucinich, and Ammond. The safeguarding of individual citizens' constitutional rights is well within the proper function of a federal court.
These principles are underlined by the many public employee cases decided by the Supreme Court. The Court has repeatedly held that, while individuals may have no right in the first instance to their jobs, public employees may not be discharged solely for the exercise of their constitutionally guaranteed rights of free speech and association, absent a compelling state interest. See, e.g., Givhan v. Western Line Consol. School Dist., 439 U.S. 410, 99 S. Ct. 693, 58 L. Ed. 2d 619 (1979); Mt. Healthy City School Dist. v. Doyle, 429 U.S. 274, 97 S. Ct. 568, 50 L. Ed. 2d 471 (1977); Elrod v. Burns, supra; Perry v. Sindermann, 408 U.S. 593, 92 S. Ct. 2694, 33 L. Ed. 2d 570 (1972); Pickering v. Board of Education, 391 U.S. 563, 88 S. Ct. 1731, 20 L. Ed. 2d 811 (1968); Keyishian v. Board of Regents, 385 U.S. 589, 87 S. Ct. 675, 17 L. Ed. 2d 629 (1967). We cannot, consistent with our duty to protect first amendment rights, distinguish between removal from a legislative committee and a loss of a public job where both are sanctions for the exercise of first amendment rights. Bond squarely holds that legislators enjoy the same degree of first amendment protection as private citizens. 385 U.S. 116 at 136, 17 L. Ed. 2d 235, 87 S. Ct. 339.
Elrod v. Burns is particularly apposite. There, the Supreme Court struck down patronage dismissals as a violation of the employees' first amendment associational rights, notwithstanding the fact that the employees had acquired their jobs through the patronage system. Their positions were specifically categorized as patronage jobs, as opposed to other positions which were protected under the civil service. We think this supports our determination that removal of an elected official from a legislative committee on which, based on past practice, he legitimately expects to serve at least for the duration of the legislative session is a sanction which triggers constitutional scrutiny.
In the area of political expression, the first amendment affords the broadest protection. Buckley v. Valeo, 424 U.S. 1, 14, 96 S. Ct. 612, 46 L. Ed. 2d 659 (1976); New York Times v. Sullivan, 376 U.S. 254, 270, 84 S. Ct. 710, 11 L. Ed. 2d 686 (1964). See also Young v. American Mini Theatres, Inc., 427 U.S. 50, 66-67, 96 S. Ct. 2440, 49 L. Ed. 2d 310 (1976). Free and uninhibited debate on matters of public importance has been termed by the Supreme Court, "the core value of the Free Speech Clause of the First Amendment." Pickering v. Board of Education, supra, 391 U.S. at 573, 88 S. Ct. at 1737. In Bond, the Supreme Court used the strongest language to describe the importance of the first amendment in protecting a legislator's right to speak out:
"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. The central commitment of the First Amendment, as summarized in the opinion of the Court in New York Times v. Sullivan, (cit. omitted) is that "debate on public issues should be uninhibited, robust, and wide-open.' We think the rationale of the New York Times case disposes of the claim that Bond's statements fell outside the range of constitutional protection. Just as erroneous statements must be protected to give freedom of expression the breathing space it needs to survive, so statements criticizing public policy and the implementation of it must be similarly protected. . . . The interest of the public in hearing all sides of a public issue is hardly advanced by extending more protection to citizen-critics than to legislators. Legislators have an obligation to take positions on controversial political questions so that their constituents can be fully informed by them, and be better able to assess their qualifications for office; also so they may be represented in governmental debates by the person they have elected to represent them."