The Speech or Debate Clause of the U.S. Constitution: Definition & Purpose

Instructor: Christopher Muscato

Chris has a master's degree in history and teaches at the University of Northern Colorado.

How do we protect legislators who voice an unpopular opinion? How far does this protection go? In this lesson, we'll check out the Speech or Debate Clause and see what the Constitution says about this issue.

The Speech or Debate Clause

The freedom of speech is upheld as one of the most sacred liberties in the United States. However, as anyone who even remotely pays attention to our society knows, defining that is not always as easy as it seems. How far do protections like this go?

This was a question that the framers of the Constitution debated, and they came up with some interesting ideas. One of the first places that we see mention of any sort of free speech is not in the First Amendment, but much earlier in Article 1 of the U.S. Constitution, the section relegating the legislative powers of Congress. Article 1, Section 6, Clause 1 states, in part, that ''for any Speech or Debate in either House, they shall not be questioned in any other Place.'' In essence, legislators in both the House of Representatives and the Senate have a right to free and unrestricted speech. This is known as the Speech or Debate Clause.

The US Capitol, where both houses of Congress meet

Purpose of the Speech or Debate Clause

So, what's the whole idea with this Speech or Debate Clause? Why does it matter? We could tell you, or we could just let James Wilson (a major framer of the Constitution) explain it in his own words:

''In order to enable and encourage a representative of the public to discharge his public trust with firmness and success, it is indispensably necessary, that he should enjoy the fullest liberty of speech, and that he should be protected from the resentment of every one, however powerful, to whom the exercise of that liberty may occasion offense.'' (James Wilson, 1791)

Don't you wish people still talked like that? Of course, while it sounds impressive it's also a bit confusing. So, what's Wilson saying? Basically, the Speech or Debate Clause is there to ensure that congressional representatives cannot be arrested or prosecuted just because of their political views. Theoretically, without this clause an unpopular senator could end up imprisoned just because the other members of the Senate don't like that person or a piece of legislation they support. This protection extends to clerk and secretaries working for a legislator as well.

Supreme Court Justice James Wilson

It's important for legislators to freely be able to support unpopular ideas so that the democracy can function like it's supposed to. We have to remember that ideas like freeing the slaves or giving women the right to vote were once unpopular. The Speech or Debate Clause let abolitionists and suffrage-supporters fight for their causes against major opposition. They legally could not be silenced for their opinions.

Defining and Redefining the Clause

Of course, nothing in politics is quite that simple. While the basic idea of the Speech and Debate Clause is pretty clear, various courts have spent decades debating what it looks like in practice. Just how far does this immunity for congressional representatives extend? Some would argue that anything a congressman or woman does is protected under the Speech or Debate Clause, which would mean it would be literally impossible to arrest them for anything as long as they held office.

Obviously that's a bit extreme, and a number of American courts have used their power of judicial review to refine that idea. As early as 1808, the Massachusetts Supreme Court found, in the spookily named case Coffin v Coffin, that congressional immunity only extended to actions necessary for the functions of the office. Basically, the Speech or Debate Clause only protected legislators when they were doing something directly relevant to the job of creating laws. This was followed in 1880 by the case of Kilbourn v Thompson, in which the US Supreme Court formally declared that legislators were immune for prosecution only for ''legislative acts'' and were not immune from all prosecution. If they committed a crime, they could still be arrested. A case in 1972, United States v Brewster, reaffirmed that decision.

Legislative act are those that directly impact the ability of legislators to do their jobs, like giving a speech in support of a bill

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