Will Congressional Tweets Be Privileged?

Ruth Marcus has an interesting piece in the Washington Post about changes to rule changes in the House of Representatives. The rules have recently been changed from an absolutely ban on the use of wireless telephone or personal computer on the House floor to a ban only if the use “impairs decorum.” As Marcus points out, decorum is frequently impaired on the House floor. One could argue that John Boehner’s tan in itself impairs decorum. So a beeping cell phone may be the least of anyone’s worries. But the more interesting question, I think, is whether House members will tweet and post messages on social media during House sessions. And if so, will those tweets and posts be covered by the “Speech or Debate” clause in Article I, Section 6 of the Constitution? That clause provides: “for any Speech or Debate in either House, [senators and representatives] shall not be questioned in any other place.” And it essentially provides total immunity for what is said. The Supreme Court hasn’t had too much to say on the topic, other than a 1979 case where it found that Senator William Proxmire could not use the clause to defend against a libel claim arising from his conferring the “Golden Fleece” award on a research scientist. Proxmire gave the award to folks who, in his judgment, wasted government funds. Proxmire conferred the award in a newsletter to his constituents (like that wasn’t a waste of government funds). The Supreme Court ruled that since the newsletter was produced outside of the senate chamber, the Speech or Debate clause didn’t apply. It will be interesting to see if issue reemerges based on a congressional tweet. But I’m not sure giving members of Congress the technology and the legal impunity for anything they say is a great idea. Stay tuned.