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DICKEY v. CBS

January 24, 1975

SAMUEL R. DICKEY
v.
CBS, INC.



The opinion of the court was delivered by: HIGGINBOTHAM

 HIGGINBOTHAM, District Judge.

 INTRODUCTION

 Plaintiff, Samuel R. Dickey, filed this diversity action on July 23, 1974, alleging in his complaint that the defendant, CBS, Inc., through its facilities at WCAU-TV, Channel 10, Philadelphia, had on May 5 and 6, 1974, telecast certain "false, malicious, defamatory and libelous" statements about him. The complaint sought punitive damages in the amount of $2,000,000.00. On September 20, 1974, defendant answered, raising several affirmative defenses. On October 15, 1974, plaintiff gave notice that he would take the oral deposition of a non-party witness, the Honorable Lawrence G. Williams, United States Representative for the Seventh District of Pennsylvania, on November 12, 1974. *fn1" On November 8, 1974, Representative Williams moved for a protective order and to quash the subpoena served on him on November 1, 1974, claiming that any statements he may have made about the plaintiff were absolutely privileged. Counsel for both Representative Williams and plaintiff have submitted briefs in support of their respective positions, and oral argument was heard on the motion on December 20, 1974. For reasons that will hereinafter appear, I have concluded that my decision on the motion to quash is controlled in large part by the Speech or Debate Clause of the Constitution of the United States, Art. I, § 6, cl. 1, that the clause does not prohibit the deposing of Representative Williams, *fn2" and that the motion to quash should be denied.

 A. Legislative Activities Are Protected.

 The bedrock for any claim of immunity or privilege by a United States Congressman is Article I, § 6, cl. 1 of the Constitution of the United States, which provides, inter alia, that "for any Speech or Debate in either House, they [Members of Congress] shall not be questioned in any other Place." The clause was designed to protect Senators and Representatives from prosecutions which threaten the legislative process, to prevent their intimidation by the Executive Branch of Government and to shield them from accountability before a potentially hostile judiciary. Doe v. McMillan, 412 U.S. 306, 311, 93 S. Ct. 2018, 2024, 36 L. Ed. 2d 912 (1973); Gravel v. United States, 408 U.S. 606, 616, 617, 92 S. Ct. 2614, 2622, 2623, 33 L. Ed. 2d 583 (1972).

 To effectuate the purposes of the Speech or Debate Clause, the courts have often read it broadly. United States v. Johnson, 383 U.S. 169, 180, 86 S. Ct. 749, 755, 15 L. Ed. 2d 681 (1966); Doe v. McMillan, supra, at 311, 93 S. Ct. at 2024; Gravel v. United States, supra, at 624, 92 S. Ct. at 2626. Within its protections, the clause embraces everything "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, 26 L. Ed. 377 (1881); Doe v. McMillan, supra, at 311, 93 S. Ct. at 2024; Gravel v. United States, supra, at 624, 92 S. Ct. at 2626; United States v. Brewster, 408 U.S. 501, 509, 512-13, 92 S. Ct. 2531, 2536, 2537-38, 33 L. Ed. 2d 507 (1972); Powell v. McCormack, 395 U.S. 486, 502, 89 S. Ct. 1944, 1954, 23 L. Ed. 2d 491 (1969); United States v. Johnson, supra, at 179, 86 S. Ct. at 754. The conduct thus protected includes not only the remarks of Senators and Representatives in Congressional speeches and debates, but also their voting, their participation in legislative committee hearings, and their preparation of committee reports. Doe v. McMillan, supra, at 311-12, 93 S. Ct. at 2024; Gravel v. United States, supra, at 624, 92 S. Ct. at 2626. So long as Congressmen act within the "legislative sphere," they are immune from criminal and civil liability. Doe v. McMillan, supra, at 311-12, 93 S. Ct. at 2025; Gravel v. United States, supra, at 624-25, 92 S. Ct. at 2626-27.

 B. Political Activities Are Not Protected.

 Not everything that a Congressman may regularly do, however, is a legislative act. Doe v. McMillan, supra, at 313, 93 S. Ct. at 2025; United States v. Brewster, supra, at 512, 92 S. Ct. at 2537. In United States v. Brewster, supra, Chief Justice Burger discussed in some detail these non-legislative activities of Congressmen, the reasons why Congressmen perform them, and their relation to the Speech or Debate Clause.

 
"It is well known, of course, that Members of the Congress engage in many activities other than the purely legislative activities protected by the Speech and Debate Clause. These include a wide range of legitimate 'errands' performed for constituents, the making of appointments with Government agencies, assistance in securing Government contracts, preparing so-called 'news letters' to constituents, new releases, and speeches delivered outside the Congress. The range of these related activities has grown over the years. They are performed in part because they have come to be expected by constituents, and because they are a means of developing continuing support for future elections. Although these are entirely legitimate activities, they are political in nature rather than legislative, in the sense that term has been used by the Court in prior cases. But it has never been seriously contended that these political matters, however appropriate, have the protection afforded by the Speech or Debate Clause." Id. at 512, 92 S. Ct. at 2537. (Emphasis added.)

 Moreover, the doctrine of executive or official immunity, which flavors the holdings of all three of these cases, does not itself support the non-party witness' claim of privilege. Within the federal system, the doctrine is derived from the decision of the United States Supreme Court in Barr v. Matteo, 360 U.S. 564, 79 S. Ct. 1335, 3 L. Ed. 2d 1434 (1959), and the scope of inquiry under that doctrine is the same as the scope of inquiry under the Speech or Debate Clause. Doe v. McMillan, supra, at 324, 93 S. Ct. at 2030. *fn3" In other words, if the activities of a Congressman are not protected by the Speech or Debate Clause, they are not shielded by the doctrine of official immunity either.

 Precisely because the delivery of a speech by a Congressman outside the Congress is a political, not a legislative activity, it is not entitled to the protection of the Speech or Debate Clause. To be sure, some might think that this conclusion is based on an overly restrictive definition of "legislative activity." If one does not read the older cases within the mold by which they have been recast or redefined by Brewster, Gravel and Doe, one could reason that the term has a much broader coverage. *fn4" Yet, even though in Doe v. McMillan, supra, the majority said that the Speech or Debate Clause has been read broadly to effectuate its purposes, id. at 311, 93 S. Ct. at 2024, the Court has nevertheless defined "legislative activity" somewhat narrowly and "political activity" somewhat broadly. As a matter of logic, one could argue that a Congressman who reads verbatim from an official committee report is performing a "legislative" function, that is, informing his constituents. The majority of the Supreme Court, however, has held differently and negated that theory when it stated in Doe v. McMillan, supra, that "[a] Member of Congress may not with impunity publish a libel from the speaker's stand in his home district, and clearly the Speech or Debate Clause would not protect such an act even though the libel was read from an official committee report." 412 U.S. at 314, 93 S. Ct. at 2025. Liability would attach to the Congressman because "republishing a libel in such circumstances is not an essential part of the legislative process and is not part of that deliberative process 'by which members participate in committee and House proceedings.' Gravel v. United States, supra, at 625, at 2627 of 92 S. Ct." Doe v. McMillan, supra, at 314-15, 93 S. Ct. at 2026. The Speech or Debate Clause does not "immunize those who publish and distribute otherwise actionable materials beyond ...


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