17. As a matter of constitutional law, the court hearing this motion should

The federal civil servant sues the senator and the legislative assistant for defamation. Both defendants move to dismiss the complaint.

No legislation affecting the appointment or discipline of civil servants or the program of the federal agency for which the federal civil servant works was under consideration at the time the senator made her speech about him on the floor of the Senate.

A senator makes a speech on the floor of the United States Senate in which she asserts that William, a federal civil servant with minor responsibilities, was twice convicted of fraud by the courts of a particular state. In making this assertion, the senator relied wholly on research done by her chief legislative assistant. In fact, it was a different man named William and not William the civil servant, who was convicted of these crimes in the state court proceedings. This mistake was the result of carelessness on the legislative assistant's part.

Grant it as to the legislative assistant, because he is protected by the freedom of speech guarantee against defamation actions by government officials based on his mere carelessness; but deny it as to the senator, because, as an officer of the United States, she is a constituent part of the government and, therefore, has no freedom of speech rights in that capacity
Grant it as to both defendants, because the senator is immune from suit for any speech she makes in the Senate under the Speech or Debate Clause of Article I, Section 6, and the legislative assistant may assert the senator's immunity for his assistance to her in preparing the speech
Deny it as to both defendants, because any immunity of the senator under the Speech or Debate Clause does not attach to a speech that is not germane to pending legislative business, and the legislative assistant is entitled to no greater immunity than the legislator he was assisting
Deny it as to the legislative assistant, because he is not a legislator protected by the Speech or Debate Clause; but grant it as to the senator, because she is immune from suit for her speech by virtue of that clause

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Article I, Section 6 provides that «for any Speech or Debate in either House, [members of Congress] shall not be questioned in any other Place.» In general terms, this so-called Speech and Debate Clause shields members of Congress from: (i) civil or criminal suits relating to their legislative actions; and (ii) grand jury investigations relating to those actions. The immunity extends to aides who engage in acts that would be immune if performed by a legislator. Gravel v. United States, 408 U.S. 606 (1972). Conduct that occurs in the regular course of the legislative process and the motivation behind that conduct are immune from prosecution. Speeches and publications made outside Congress are not protected. The Speech and Debate Clause serves the important separation-of-powers function of assuring that members of Congress are not distracted from their duties by being called into court to defend their actions.

B is correct. The Speech and Debate Clause of Article I of the Constitution provides that anything said in the course of the federal legislative process is immune from prosecution. Thus, the senator is immune from liability for the speech she made in the Senate and her assistant would be cloaked in immunity for his assistance in preparing her speech. For those reasons, the motion to dismiss should be granted as to both defendants.

A is incorrect. This is a misstatement of the law. There is no rule that an officer of the U.S., as a constituent, has no freedom of speech rights in that capacity. The senator is immune for the speech made in the Senate under the Speech and Debate Clause of Article I, and that immunity extends to her assistant, who helped to prepare the speech.

C is incorrect. This answer also misstates the applicable law. The motion should be granted as to both defendants, not denied, because immunity under the Speech and Debate Clause does protect the senator's speech because it was made during the legislative process. No such requirement exists that the speech is germane to pending legislative business.

D is incorrect. As explained above, the senator's immunity extends to the assistant, who was performing functions that would be otherwise be protected if carried out by the Senator. See Gravel v. United States, 408 U.S. 606 (1972). As such, the motions should be granted as to both defendants, not just the Senator.

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17. As a matter of constitutional law, the court hearing this motion should

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