Hutchinson v. Proxmire

• Decision Date: 26 July 1978
• Docket Number: Nos. 77-1677,77-1755,s. 77-1677
• Citation: 579 F.2d 1027
• Parties: 4 Media L. Rep. 1016 Ronald R. HUTCHINSON, Plaintiff-Appellant, v. William PROXMIRE and Morton Schwartz, Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1027

579 F.2d 1027

4 Media L. Rep. 1016

Ronald R. HUTCHINSON, Plaintiff-Appellant, v. William PROXMIRE and Morton Schwartz, Defendants-Appellees.

Nos. 77-1677, 77-1755.

United States Court of Appeals Seventh Circuit.

Argued Jan. 9, 1978.

Decided June 30, 1978.

Rehearing and Rehearing In Banc Denied July 26, 1978.

David E. S. Marvin, Lansing, Mich., for plaintiff-appellant.

Alan Raywid, Washington, D. C., for defendants-appellees.

Before CASTLE, Senior Circuit Judge, WOOD, Circuit Judge, and EAST, Senior District Judge. ^*

CASTLE, Senior Circuit Judge.

This civil suit against a United States Senator and his legislative aide for damages arising from one of the Senator's monthly "Golden Fleece" awards involves the interplay of the immunities provided by the Speech or Debate Clause and the first amendment. The issues on appeal are (1) whether the alleged activities of the congressional defendants were within the legitimate legislative sphere and thus absolutely immune from suit and (2) to the extent those activities are not absolutely protected by the Speech or Debate Clause, whether the statements complained of are protected by the qualified privilege of the first amendment. The district court found that the combination of the absolute and qualified immunities completely shielded the defendants and granted their motion for summary judgment. We affirm.

I.

The facts as alleged by plaintiff are fully stated in the opinion below. Hutchinson v Proxmire, 431 F.Supp. 1311 (W.D.Wis.1977), and will be briefly summarized here. Defendant William Proxmire is a United States Senator from Wisconsin who serves on the Senate Committee on Appropriations. In March, 1975, Senator Proxmire announced in a speech on the Senate floor that he was establishing his "Golden Fleece of the Month Award" the aim of which was to point out examples of wasteful government spending. Senator Proxmire's legislative aide, Morton Schwartz, was assigned to identify and investigate possible "Fleece" candidates.

After a review of agency documents and discussions with the various agencies' officials, the defendants decided they would give a Golden Fleece award to the National Science Foundation (NSF), the Office of Naval Research (ONR), and the National Aeronautics and Space Administration (NASA) for spending $500,000 to fund research by plaintiff Dr. Ronald Hutchinson into the causes of animal and human aggression. Defendants delivered a press release to the Senate Service Department on April 15, 1975 for release April 18 which, in essence, was the text of a speech scheduled to be given before the Senate by Senator Proxmire on April 18. ¹ In his speech, Senator Proxmire characterized the research as merely studying why "rats, monkeys and humans bite and clench their jaws." Also, on or about April 15, 1975, Schwartz telephoned Dr. Hutchinson to inform him of the upcoming award and to verify the information contained in the speech. In rebuttal, Dr. Hutchinson then issued his own press release also dated April 18, 1975. In May, 1975, Senator Proxmire sent approximately 100,000 newsletters to his constituents and others summarizing the Golden Fleece Award. ² Later in 1975, in addition to other interviews, Senator Proxmire appeared on a Milwaukee radio show and the Mike Douglas television show to discuss the Golden Fleece Awards including the one given to NSF, ONR, and NASA. ³ Following the April 18, 1975 announcement of the award, plaintiff alleges defendant Schwartz made several followup phone calls to NSF, ONR, and the National Institute of Drug Abuse (NIDA), and possibly other agencies, encouraging them to terminate the funding of Dr. Hutchinson's research.

Dr. Hutchinson filed this action seeking $8,000,000 in damages for injury to his reputation, for physical illness, mental distress, invasion of privacy, and loss of existing and prospective economic advantage. Defendants, claiming immunity from suit, moved for summary judgment and filed numerous supporting documents. Plaintiff opposed the motion with equally voluminous documentation. The district court, in a scholarly opinion, granted Senator Proxmire's motion for summary judgment and later dismissed the suit against Schwartz. This appeal followed. ⁴

II.

Several recent cases have interpreted the scope of the absolute immunity provided legislators and their aides under the Speech or Debate Clause in suits stemming from investigations. ⁵ While actual speech in either House is unquestionably protected, the Clause also protects other acts by representatives when those acts are found to be within the "legitimate legislative sphere." Eastland v. United States Servicemen's Fund, 421 U.S. 491, 503, 95 S.Ct. 1813, 44 L.Ed.2d 324 (1975); Gravel v. United States, 408 U.S. 606, 92 S.Ct. 2614, 33 L.Ed.2d 583 (1972). ⁶ The act of investigation is an "appropriate auxiliary to the legislative function" and legislators have been found to be within the legislative sphere when the subject of the investigation was one on which Congress could legislate and when the information sought from material witnesses furthered that subject. McGrain v. Daugherty, 273 U.S. 135, 174, 177, 47 S.Ct. 319, 328, 71 L.Ed. 580 (1927); Watkins v. United States, 354 U.S. 178, 187, 77 S.Ct. 1173, 1 L.Ed.2d 1273 (1957). ⁷ However, even where the investigation is within the legislative sphere, absolute immunity does not attach to the improper dissemination of actionable information outside Congress, Doe v. McMillan, 412 U.S. 306, 316, 93 S.Ct. 2018, 36 L.Ed.2d 912 (1973); Gravel v. United States, supra, 408 U.S. at 625, 92 S.Ct. 2614, nor to illegal or unconstitutional acts committed during the investigation. United States v. Brewster, 408 U.S. 501, 526, 92 S.Ct. 2531, 33 L.Ed.2d 507 (1972); Dombrowski v. Eastland, 387 U.S. 82, 87 S.Ct. 1425, 18 L.Ed.2d 577 (1967). ⁸ Equipped with these basic principles, we will now determine if absolute legislative immunity bars suit upon the acts complained of by the plaintiff. For the purposes of analysis, we divide the allegations in this case into four separate acts: (1) the follow-up phone calls to administrative agencies; (2) the press release of the speech; (3) the newsletters; and (4) the television, radio, and other interviews.

1. Follow-up Phone Calls to Agencies

Plaintiff agrees that the investigative actions by defendants in gathering information on public spending from administrative agencies is not actionable under the Speech or Debate Clause since the investigation was within the legislative sphere. McGrain v. Daugherty, supra. However, Dr. Hutchinson argues that when the defendants made the phone calls to the agencies encouraging them to terminate the research grants, they exceeded the legitimate information gathering protected by legislative immunity. The phone calls, plaintiff alleges, were made for the purpose of influencing the agencies and not for the gathering of information. In response, defendants maintain that the follow-up contact with the agencies was part of the legislature's oversight function and thus should be accorded Speech or Debate protection.

The thrust of legislative immunity is the protection of the " deliberative and communicative processes" of representatives. Gravel v. United States, supra, 408 U.S. at 625, 92 S.Ct. 2614. It can be argued that each of the nonlegislative functions of Congress, I. e., investigative, oversight, informing, assist representatives in their legislative deliberations and communications. However, the Supreme Court has specifically stated that contact with administrative agencies is normally too far removed from the legislative sphere to be absolutely protected:

Members of Congress are constantly in touch with the Executive Branch of the Government and with administrative agencies they may cajole, and exhort with respect to the administration of a federal statute but such conduct, though generally done, is not protected legislative activity. United States v. Johnson (383 U.S. 169, 86 S.Ct. 749, 15 L.Ed.2d 681 (1966)) decided at least this much.

Gravel v. United States, supra, at 625, 92 S.Ct. at 2627. See also McSurely v. McClellan, supra, note 8, 180 U.S.App.D.C. at 109-110, 553 F.2d at 1285-86. Thus, while there may be cases where the postinvestigation contact with administrative agencies is so integral to the investigation or other protected activities that application of absolute immunity would be compelled, the phone calls to NSF, NASA, and NIDA in this case cannot be accorded Speech or Debate protection. ⁹

2. Press Release, Newsletters, Television and Radio Comments

To determine whether the remaining allegations of plaintiff are actionable under the Speech or Debate Clause, we must explore the limits of permissible public dissemination of information by a representative. The Supreme Court has rejected the argument that the "informing function" of Congress requires absolute immunity for all public distribution of information. Doe v. McMillan, supra, 412 U.S. at 316, 93 S.Ct. 2018. Doe held that the Speech or Debate Clause protected representatives and their legislative aides from suit for voting to authorize the public distribution of an actionable committee report. However, the Court further held that absolute immunity was not automatically available to the Public Printer and Superintendent of Documents who actually distributed the report and remanded the case for a determination of whether the "legitimate legislative needs" of Congress had been exceeded. ¹⁰ Thus, while the Supreme Court has recognized that the informing function of Congress is sufficiently important to warrant Speech or Debate immunity for some public dissemination of information, Id. at 317, 328, 93 S.Ct. 2018 (Douglas, J., concurring), 333,93 S.Ct. 2018 (Blackmun, J., concurring and dissenting), 341, 93 S.Ct. 2018 (Rehnquist, J., concurring and dissenting), the distribution outside Congress must serve legitimate legislative needs to afford the...