by Esther van Mourik and Pierce Lively
Editor’s note: This article was originally published on January 17, 2019.
It is a prized American privilege to speak one’s mind, although not always with perfect good taste, on all public institutions.” – Supreme Court Justice Hugo Black
He has the backbone of a chocolate éclair.” – President Theodore Roosevelt on President William McKinley.
You’ve just been sworn in to serve as a legislative member of the Colorado General Assembly and you are now a public official. Congratulations! If you would like to know your rights as a legislator when you’re being criticized by the public, when you’re making speeches, or when you’re being threatened, read on!
It is a foundational principle that the success of a democracy is built on the back of free political discussion. This discussion is a fundamental right protected by the First Amendment of the United States Constitution and article II, section 10 of the Colorado Constitution. But freedom of speech is not absolute. For example, it does not protect a person who shouts “fire!” in a crowded theater and causes a panic. Over the years the judiciary has justified regulating speech when the restriction outweighs the value of the expression. So, where is the line drawn? In particular, when is speech directed toward, or made by, a legislator protected and when is it not?
Speech directed toward a public official
Let’s say that a critic has publicly said you are “ripping off taxpayers” by sponsoring a tax credit for businesses. Do you have a complaint against that critic for defamation? Probably not.
Defamation is a catch-all term for civil, not criminal, damage claims stemming from false statements that hurt someone’s reputation. Defamation laws are an important recourse for those who are harmed by false statements. However, defamation laws are in direct conflict with the constitutional right to free speech, and consequently, courts look at punishing that speech very carefully. This conflict is particularly acute in the case of public officials, such as legislators, because robust political debates and discussions are fundamental to our democratic system and should not be chilled.
In New York Times v. Sullivan, the United States Supreme Court addressed this conflict by holding that the First Amendment’s right to free speech prohibits a “public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with ‘actual malice’ — that is, with knowledge that it was false or with reckless disregard of whether it was false or not.”
What does this mean for public officials, including legislators, in Colorado? A public official can only recover damages for a statement if he or she can prove that (1) a person published or otherwise communicated the statement to a third party, (2) the statement caused the public official actual damage, and (3) that when the person made the statement, he or she either knew it was false or had a reckless disregard as to whether it was false. This “actual malice” standard imposes a high burden on public officials in a defamation case.
So, when a critic has publicly said you are “ripping off taxpayers” because you sponsored a tax credit for businesses, this may hurt your reputation, but it is probably not defamation. The critic is entitled to his or her opinion, and opinions are hard to prove true or false.
Speech made by a legislator
An “unrestricted debate of public issues” requires protecting not only a public official’s critics, but also protecting the public official. As regular readers of LegiSource will already know, this protection is achieved through “legislative immunity.”
Let’s say you make a statement during legislative debate that offends someone. Is your speech protected? Yes. The Colorado Constitution includes protections to ensure that you can do your job as a public official without interference or intimidation.
Under Article V, section 16 of the Colorado Constitution, legislators are immune from civil lawsuits and state criminal prosecution for actions that fall within the “sphere of legitimate legislative activity.” Although Colorado courts have not defined the phrase “sphere of legitimate legislative activity,” in Gravel v. United States, the United States Supreme Court held that activities that are “an integral part of the deliberative and communicative processes by which Members participate in committee and House proceedings with respect to the consideration and passage or rejection of proposed legislation or with respect to other matters which the Constitution places within the jurisdiction of either House” are within the sphere.
In general, these activities include conducting hearings, preparing and authorizing the publication of reports, delivering floor speeches, and voting but do not include meeting with or influencing executive branch or local government officials or political activities related to campaigning.
When a constituent is offended by something you said during legislative debate about a particular bill, your speech is protected, and you are immune from any liability related to that speech.
When speech turns criminal
Legislative immunity protects legislators and the high burden in defamation cases protects critics of the government, but no one is protected while threatening others. Actions that constitute criminally threatening behavior include:
- Attempting to influence legislators and other public servants through “deceit or by threat of violence or economic reprisal”;
- Threatening or using physical action to place another “in fear of imminent serious bodily injury”;
- A continuous course of conduct where one follows, approaches, contacts, places another under surveillance, or communicates with someone in a manner that causes that person to suffer serious emotional distress; and
If you feel threatened in any way while in the capitol, call state patrol (303-866-3660). If you feel threatened outside of the capitol call local law enforcement. If you think the person threatening you away from the capitol may come to the capitol, please call state patrol.
As you embark on your new careers as members of the General Assembly, it’s important to remember that open and robust discussion of public issues is a fundamental part of our democracy. Our laws strive to protect discussion both by critics of the government and the government itself. Critics of the government are protected by requiring public officials to clear a high bar before they succeed in defamation cases. Legislative immunity protects members of the government in relation to statements they make within “the sphere of legitimate legislative activity.” But expression that improperly influences, threatens, or harasses a person is illegal and unprotected. If you have any further questions about any of these issues, please contact the Office of Legislative Legal Services.
 Or maybe you’re already a legislator and you just want a refresher!
 If defamation is written, it is libel, and if it is spoken, it is slander.
 For an in-depth discussion of how this doctrine applies to subpoenas, see To Testify or Not to Testify: Responding to a Subpoena.