412 U.S. 306 (1973), 71-6356, Doe v. McMillan

Docket Nº:No. 71-6356
Citation:412 U.S. 306, 93 S.Ct. 2018, 36 L.Ed.2d 912
Party Name:Doe v. McMillan
Case Date:May 29, 1973
Court:United States Supreme Court

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412 U.S. 306 (1973)

93 S.Ct. 2018, 36 L.Ed.2d 912




No. 71-6356

United States Supreme Court

May 29, 1973

Argued December 13, 1972




Petitioners, parents of District of Columbia (D.C.) school children, brought this action seeking damages and declaratory and injunctive relief for invasion of privacy that they claimed resulted from the dissemination of a congressional report on the D.C. school system that included identification of students in derogatory contexts. The named defendants included members of a House committee, Committee employees, a Committee investigator, and a consultant; the Public Printer and the Superintendent of Documents; and officials and employees connected with the school system. The Court of Appeals affirmed the District Court's dismissal of the complaint on the grounds that the first two categories of defendants were immune by reason of the Speech or Debate Clause, and that the D.C. officials and the legislative employees were protected by the official immunity doctrine recognized in Barr v. Matteo, 360 U.S. 564.


1. The congressional committee members, members of their staff, the consultant, and the investigator are absolutely immune under the Speech or Debate Clause insofar as they engaged in the legislative acts of compiling the report, referring it to the House, or voting for its publication. Pp. 311-313.

2. The Clause does not afford absolute immunity from private suit to persons who, with authorization from Congress, perform the function, which is not part of the legislative process, of publicly distributing materials that allegedly infringe upon the rights of individuals. The Court of Appeals, therefore, erred in holding that respondents who (except for the Committee members [93 S.Ct. 2022] and personnel) were charged with such public distribution were protected by the Clause. Pp. 313-318.

3. The Public Printer and the Superintendent of Documents are protected by the doctrine of official immunity enunciated in Barr v. Matteo, supra, for publishing and distributing the report only to the extent that they served legitimate legislative functions in doing so, and the Court of Appeals erred in holding that their immunity extended beyond that limit. Pp. 318-324.

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WHITE, J., delivered the opinion of the Court, in which DOUGLAS, BRENNAN, MARSHALL, and POWELL, JJ., joined. DOUGLAS, J., filed a concurring opinion, in which BRENNAN and MARSHALL, JJ., joined, post, p. 325. BURGER, C.J., filed an opinion concurring in part and dissenting in part, post, p. 331. BLACKMUN, J., filed an opinion concurring in part and dissenting in part, in which BURGER, C.J., joined, post, p. 332. REHNQUIST, J., filed an opinion concurring in part and dissenting in part, in which BURGER, C.J., and BLACKMUN, J., joined, and in Part I of which STEWART, J., joined, post, p. 338.

WHITE, J., lead opinion

MR. JUSTICE WHITE delivered the opinion of the Court.

This case concerns the scope of congressional immunity under the Speech or Debate Clause of the United States Constitution, Art. I, § 6, cl. 1, as well as the reach of official immunity in the legislative context. See Barr v. Matteo, 360 U.S. 564 (1959); Tenney v. Brandhove, 341 U.S. 367 (1951).

By resolution adopted February 5, 1969, H.Res. 76, 91st Cong., 1st Sess., 115 Cong.Rec. 2784, the House of Representatives authorized the Committee on the District of Columbia or its subcommittee

to conduct a full and complete investigation and study of . . . the organization,

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management, operation, and administration

of any department or agency of the government of the District of Columbia or of any independent agency or instrumentality of government operating solely within the District of Columbia. The Committee was given subpoena power, and was directed to "report to the House as soon as practicable . . . the results of its investigation and study, together with such recommendations as it deems advisable." On December 8, 1970, a Special Select Subcommittee of the Committee on the District of Columbia submitted to the Speaker of the House a report, H.R.Rep. No. 91-1681 (1970), represented to be a summary of the Subcommittee's investigation and hearings devoted to the public school system of the District of Columbia. On the same day, the report was referred to the Committee of the Whole House on the State of the Union, and was ordered printed. 116 Cong.Rec. 40311 (1970). Thereafter, the report was printed and distributed by the Government Printing Office pursuant to 44 U.S.C. §§ 501 and 701.

The 450-page report included among its supporting data some 45 pages that are the gravamen of petitioners' suit. Included in the pertinent pages were copies of absence sheets, lists of absentees, copies of test papers, and documents relating to disciplinary problems of certain specifically named students.1 The report stated that these materials were included to "give a realistic view" of a troubled school and "the lack of administrative

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efforts to rectify the multitudinous problems there," to show the level of reading ability of seventh graders who were given a fifth-grade history [93 S.Ct. 2023] test, and to illustrate suspension and disciplinary problems.2

On January 8, 1971, petitioners, under pseudonyms, brought an action in the United States District Court for the District of Columbia on behalf of themselves, their children, and all other children and parents similarly situated. The named defendants were (1) the Chairman and members of the House Committee on the District of Columbia; (2) the Clerk, Staff Director, and Counsel of the Committee; (3) a consultant and an investigator for the Committee; (4) the Superintendent of Documents and the Public Printer; (5) the President and members of the Board of Education of the District of Columbia; (6) the Superintendent of Public Schools of the District of Columbia; (7) the principal of Jefferson Junior High School and one of the teachers at that school; and (8) the United States of America.

Petitioners alleged that, by disclosing, disseminating, and publishing the information contained in the report, the defendants had violated the petitioners' and their children's statutory, constitutional, and common law rights to privacy, and that such publication had caused and would cause grave damage to the children's mental and physical health and to their reputations, good names, and future careers. Petitioners also alleged various violations of local law. Petitioners further charged that, "unless restrained, defendants will continue to distribute and publish information concerning plaintiffs, their children and other students." The complaint prayed for an order enjoining the defendants from further publication, dissemination, and distribution of any report containing

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the objectionable material, and for an order recalling the reports to the extent practicable and deleting the objectionable material from the reports already in circulation. Petitioners also asked for compensatory and punitive damages.3

The District Court, after a hearing on motions for a temporary restraining order and for an order against further distribution of the report, dismissed the action against the individual defendants on the ground that the conduct complained of was absolutely privileged.4 A divided panel of the United States Court of Appeals for the District of Columbia Circuit affirmed. Without determining whether the complaint stated a cause of action under the Constitution or any applicable law, the majority held that the Members of Congress, the Committee staff employees, and the Public Printer and Superintendent of Documents were immune from the liability asserted against them because of the Speech or Debate Clause and that the official immunity doctrine recognized in Barr v. Matteo, supra, barred any liability on the part of the District of Columbia officials as well as the legislative employees.5 We granted certiorari, 408 U.S. 922.

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To "prevent intimidation of legislators by the Executive and accountability before a possibly hostile judiciary," Gravel v. United States, 408 U.S. 606, 617 (1972), Art. I, § 6, cl. 1, of the Constitution provides that "for any Speech or Debate in either House, they [Members of Congress] shall not be questioned in any other Place."

The Speech or Debate Clause was designed to assure a co-equal branch of the government wide freedom of speech, debate, and deliberation without intimidation or threats from the Executive Branch. It thus protects Members against prosecutions that directly impinge upon or threaten the legislative process.

Id. at 616.6 The Speech or Debate Clause has been read "broadly to effectuate its purposes," United States v. Johnson, 383 U.S. 169, 180 (1966); Gravel v. United States, supra, at 624, and includes within its protections anything "generally done in a session of the House by one of its members in relation to the business before it." Kilbourn v. Thompson, 103 U.S. 168, 204 (1881); United States v. Johnson, supra, at 179; Gravel v. United States, supra, at 624; Powell v. McCormack, 395 U.S. 486, 502 (1969); United States v. Brewster, 408 U.S. 501, 509, 512-513 (1972). Thus, "voting by Members and committee reports are protected," and

a Member's conduct at legislative committee hearings, although subject to judicial review in various circumstances, as is legislation itself,

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may not be made the basis for a civil or criminal judgment against a Member because that conduct is within the "sphere of legitimate legislative activity."

Gravel v. United States, supra, at 624.

Without belaboring the matter further, it is plain to us that the complaint in this case was barred by the Speech or Debate Clause insofar as it sought relief from the...

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