
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                FOR THE FIRST CIRCUIT                              _________________________          No. 95-1090                   NATIONAL ASSOCIATION OF SOCIAL WORKERS, ET AL.,                                Plaintiffs, Appellees,                                          v.                               JOHN B. HARWOOD, ET AL.,                               Defendants, Appellants.                              _________________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF RHODE ISLAND                [Hon. Raymond J. Pettine, Senior U.S. District Judge]                                          __________________________                              _________________________                                        Before                                Selya, Cyr and Lynch,                                   Circuit Judges.                                   ______________                              _________________________               John A. MacFadyen for appellants.               _________________               Jeffrey  B.  Pine,  Attorney  General, and  Alan  M.  Shoer,               _________________                           _______________          Special Assistant Attorney General,  on brief for State of  Rhode          Island, amicus curiae.               Amy  R. Tabor, with whom Hardy Wood Tabor & Chudacoff was on               _____________            ____________________________          brief, for appellees.                              _________________________                                  November 13, 1995                              _________________________                    SELYA,  Circuit Judge.    Over a  century ago,  Charles                    SELYA,  Circuit Judge.                            _____________          Dudley  Warner,  a  nineteenth-century   Connecticut  journalist,          earned a  sliver of immortality  by coining the  phrase "politics          makes  strange  bedfellows."     This  appeal,  which  forges  an          improbable alliance  among such disparate groups  as the National          Association of Social Workers,  the Rhode Island State Rifle  and          Revolver Association, the Rhode  Island Affiliate of the American          Civil Liberties  Union,  the Rhode  Island  State Right  to  Life          Committee, Inc.,  the Coalition to Preserve  Choice, the National          Education Association,  and Ocean  State Action, proves  that the          aphorism still has force.                    Here,  the improbable  allies (all  private, non-profit          organizations) banded together  with others to bring an action in          Rhode Island's  federal district  court against John  B. Harwood,          Speaker of  the Rhode Island House of Representatives (the House)          and  Guido   Petteruti,  the  House's  head   doorkeeper.1    The          plaintiffs  challenged the constitutionality of House Rule 45   a          rule  that purports to ban  both lobbyists and  lobbying from the          floor of  the House while the  House is in session    on its face          and  as  applied.   The  district court  found  for  most of  the          plaintiffs and  ordered the House  to desist from  continuing its          prevailing  practices  with  regard  to  the  interpretation  and                                        ____________________               1Other  plaintiffs in the underlying action included several          individuals registered as  lobbyists for non-profit organizations          (Kate  Coyne-McCoy, Harvey  Press, Scott  Nova,  Barbara Baldwin,          Susan  Closter-Godoy, Steven Brown,  Barbara Colt, Donn Dibiasio,          Anna Sullivan, and Marti Rosenberg), and three elected members of          the  House   (Edith  Ajello,  Barbara   Burlingame,  and  Francis          Gaschen).                                          2          enforcement of Rule 45.  See National Ass'n of Social Workers  v.                                   ___ ________________________________          Harwood,  874  F.  Supp.  530 (D.R.I.  1995)  (Social  Workers).2          _______                                        _______________          Given the benefit  of briefing  and argument on  the doctrine  of          legislative  immunity    a  benefit denied  to the  distinguished          district judge,  since the defendants  inexplicably neglected  to          raise the issue in the lower court   we reverse.          I.  BACKGROUND          I.  BACKGROUND                    We recount the  facts "in the light most  hospitable to          the verdict-winner, consistent with record support."  Cumpiano v.                                                                ________          Banco Santander P.R., 902 F.2d 148, 151 (1st Cir. 1990).          ____________________                    In January 1993, the House, under fresh leadership that          had pledged procedural reform, adopted several new rules.   Among          them was Rule  45 (the full  text of which  is reproduced in  the          appendix).  On its face, Rule 45 banishes  all lobbyists from the          floor of the  House (and the House lounge) while  the House is in          session.   Nonetheless, the rule permits members of the public to          be on  the House floor  while the House  is in  session, provided          that  "they remain seated along the sides of the chamber, refrain          from conversation, and  maintain the decorum  of the House,"  and          provided further that they do  not "directly or indirectly engage          in the practice of lobbying."  Rule 45(b).                                        ____________________               2The  district court  nonetheless  rebuffed the  legislator-          plaintiffs,  who  claimed  that  Rule  45  violated  their  First          Amendment  right to  receive  political information.   The  court          ruled that, even if the legislators had been denied some level of          access to lobbyists, the denial did not "rise[] to the level of a          constitutional  deprivation."   Social Workers,  874 F.  Supp. at                                          ______________          542.     The   legislator-plaintiffs  have   not  appealed   and,          accordingly, we confine  our discussion to the claims  brought by          the other plaintiffs.                                          3                    Although Rule  45 does not define  the term "lobbyist,"          it incorporates the statutory  definition of "lobbying" contained          in  the Rhode Island  Lobbying Act, R.I. Gen.  Laws    22-10-1 to          22-10-12 (the  Act).    The Act  defines  "lobbying"  as  "acting          directly  or  soliciting  others  to  act  for   the  purpose  of          promoting, opposing,  amending, or influencing in  any manner the          passage  by the general assembly of any legislation or the action          on that  legislation by the governor."   Id.   22-10-2.   The Act                                                   ___          requires  lobbyists for  private organizations  and interests  to          register with the Secretary of State, see id.    22-10-5 & 22-10-                                                ___ ___          6, and to wear identifying badges, see id.   22-10-8.  Government                                             ___ ___          officials  who lobby are given considerably more leeway.  The Act          grants safe passage to  many elected officials, see id.    22-10-                                                          ___ ___          3(1), and other public employees, while required to register, are          otherwise exempt from the Act's provisions.  See id.   22-10-4.1.                                                       ___ ___          Neither elected officials nor other public employees are required          to wear identification badges.                    The district court found that, prior to the adoption of          Rule 45, the House provided two galleries overlooking the chamber          which were  accessible to  all members  of the  public, lobbyists          included.   In  addition,  "representatives of  both private  and          governmental  organizations were  allowed  to be  present on  the          floor of the House."  Social Workers, 874 F. Supp. at 535.  These                                ______________          lobbyists typically occupied seats  on the periphery, in an  area          ranged alongside the  two outermost  aisles of  the House  floor.          They  communicated with legislators in a variety of ways, such as                                          4          by whispered  conversations on the perimeter of  the House floor,          written  notes, physical  gestures, and  other assorted  signals.          See id.  This buzznacking took place even  while the members were          ___ ___          debating floor amendments.                    After the adoption of Rule  45, access to the  overhead          galleries remained unchanged.   But from that point forward,  the          House  excluded  private  lobbyists (easily  recognized  by their          obligatory identification badges) from  the House floor while the          House  was in  session.    The  district  court  found  that,  in          contrast,  "agents  or employees  of  governmental  bodies [were]          allowed to be present on the floor of the House while it [was] in          session,  as  [were]  members  of  the  general  public."     Id.                                                                        ___          Moreover,   the  "defendants  permitted  agents  of  governmental          organizations to be present, to  speak, to respond to  questions,          to  provide information,  and to  confer with legislators  on the          House  floor  during  House   sessions  on  frequent  occasions,"          notwithstanding  the  apparently unconditional  text of  Rule 45.          Id. at 537.          ___                    The  plaintiffs struck back on April 27, 1993.  On that          date, they filed  a civil action  under 42 U.S.C.    1983  (1988)          against  Messrs.   Harwood  and  Petteruti  (as  the  individuals          purportedly responsible for enforcing the House's rules) charging          that   Rule  45,  on  its  face  and  as  applied,  violated  the          plaintiffs'  rights  under the  First and  Fourteenth Amendments.          The  defendants denied  the  allegations.   Following a  four-day          bench  trial, the judge found  for the plaintiffs.   See National                                                               ___ ________                                          5          Ass'n  of Social  Workers v.  Harwood, 860  F. Supp.  943 (D.R.I.          _________________________     _______          1994).   The defendants then moved to  alter the judgment.  While          that motion was under advisement, we decided AIDS Action Comm. v.                                                       _________________          Massachusetts  Bay Transp. Auth., 42 F.3d 1 (1st Cir. 1994).  The          ________________________________          judge then issued the opinion that is now before us, 874 F. Supp.          530, modifying the original rescript in certain particulars.                    In substance, the court found that  the presence of the          general public on  the perimeter of the House floor    a presence          expressly permitted  by Rule 45    constituted "communicative and          expressive activity," id. at 540; that, due to the  communicative                                ___          possibilities inherent in physical presence, the  public's access          to the perimeter  of the House floor rendered  the floor itself a          limited-purpose public forum, see  id.; and that, therefore, both                                        ___  ___          Rule  45's exclusion  of lobbyists  and its  proscription against          lobbying  on  the  House floor  constituted  impermissible  time,          place, and manner restrictions on expressive activity, see id. at                                                                 ___ ___          540-41.3   On this basis,  the court  held that Rule  45, on  its                                        ____________________               3In the court's  view, the  rule did not  "leave open  ample          alternative  means of  communication  for the  lobbyists," Social                                                                     ______          Workers, 874 F. Supp. at 541, because "representatives elected to          _______          the  Rhode   Island  House  of  Representatives   are  part  time          legislators . . .  [who] lack legislative office quarters  in the          State House or elsewhere, [and who] lack legislative  staffs, and          [who]  generally  have  full  time  jobs  in  addition  to  their          legislative duties."  Id.   This meant, the court  reasoned, that                                ___          exclusion  of  the  lobbyists  denied  them  the  opportunity  to          communicate  with  hard-to-find  legislators  by  way  of  silent          presence.  See id.                     ___ ___                In condemning the ban on lobbying on the House floor during          House sessions,  the court took a  similar tack.  It  found that,          "with regard to  floor amendments, which  are often proposed  and          voted on in the same House proceeding, the only timely and useful          communication that can  take place  is that which  occurs on  the          floor of the House, during the debate on the amendment."  Id.                                                                     ___                                          6          face, violated  the plaintiffs' First Amendment rights.   See id.                                                                    ___ ___          at 541.                    The  court  also  found  that   the  House  haphazardly          enforced Rule 45, allowing lobbying by government officials while          prohibiting others from lobbying.  See id. at 535-37.  Predicated                                             ___ ___          on  this finding,  the court  concluded that "the  application of          Rule 45 amounts to a  content based restriction on speech."   Id.                                                                        ___          at   541.    Because  the  court  could  discern  no  "compelling          government  interest" that  justified  the  exclusion of  private          lobbying  while  sparing  governmental  lobbying,   it  held  the          interpretation and enforcement of Rule 45 invalid under the First          Amendment.  Id. at 541-42.                      ___                    In constructing a remedy, the judge, presaging an issue          not  yet raised by  the parties,  voiced concerns  about judicial          interference  in  legislative  affairs.   See  id.  at  542.   He                                                    ___  ___          therefore  declined  the   plaintiffs'  invitation  to   "require          defendants  to return to  the pre-1993 practice  of admitting all          lobbyists, public and private, onto  the floor of the House  on a          first-come,  first-served  basis."   Id.   Instead,  he  opted to                                               ___          declare "the  current interpretation  and enforcement of  Rule 45          unconstitutional,"  and  to  order  the  House  to  refrain  from          "continuing  its current  practices with  regard to  this issue."          Id. at  543.4  The House leadership responded on two levels:  the          ___                                        ____________________               4For  reasons  that are  not  readily  apparent to  us,  the          plaintiffs never sued  the House  as a body  and, therefore,  the          district court  plainly lacked jurisdiction to  enjoin the House.          The plaintiffs  now  concede that,  insofar  as the  lower  court          purported  to do  so,  its  order  cannot  stand.    Withal,  the                                          7          House  itself  passed  a  new  rule  barring  all  persons except          legislators and legislative  aides from the House  floor, and the          named defendants launched this appeal.          II.  PROCEDURAL DEFAULT          II.  PROCEDURAL DEFAULT                    On appeal, the defendants, having engaged new  counsel,          advance  a  point  that,   for  some  unfathomable  reason,  they          neglected  to raise  below:  the  claim that, with  regard to the          defendants'  actions anent  Rule  45, they  are safeguarded  from          judicial interference  under the  federal common law  doctrine of          absolute  legislative  immunity.    The State  of  Rhode  Island,          through  its  Attorney  General,  as  amicus  curiae,  lends  its          support.                    It  is very late in the day  to bring a new argument to          the  fore.   Ordinarily,  an appellant  who  has not  proffered a          particular claim or defense in the district court "may not unveil          it in  the court of appeals."   United States v.  Slade, 980 F.2d                                          _____________     _____          27, 30  (1st Cir. 1992).   This  rule is deeply  embedded in  our          jurisprudence, see, e.g., Teamsters, Chauffeurs, Warehousemen and                         ___  ____  _______________________________________          Helpers  Union, Local No. 59  v. Superline Transp.  Co., 953 F.2d          ____________________________     ______________________          17,  21 (1st  Cir. 1992) ("If  any principle  is settled  in this          circuit, it is that, absent the most extraordinary circumstances,          legal theories not raised  squarely in the lower court  cannot be          broached for the first time on appeal."), and we have invoked  it                                        ____________________          plaintiffs argue that  the court's underlying ruling    that Rule          45  is  unconstitutional      may  endure,   as  the  court   had          jurisdiction  over  the  individuals   charged  with  the  rule's          enforcement.   For reasons  which more clearly  appear infra,  we                                                                 _____          need not unsnarl this tangle.                                          8          with a  near-religious fervor, see, e.g.,  McCoy v. Massachusetts                                         ___  ____   _____    _____________          Inst.  of Technology, 950 F.2d 13, 22 (1st Cir. 1991) (collecting          ____________________          cases), cert. denied, 504 U.S. 910 (1992).   Nor can this variant                  _____ ______          of the  raise-or-waive principle  be dismissed as  a pettifogging          technicality or a trap for the indolent; the rule is founded upon          important  considerations  of  fairness,  judicial  economy,  and          practical wisdom.   See, e.g., Sandstrom  v. Chemlawn Corp.,  904                              ___  ____  _________     ______________          F.2d 83,  87 (1st Cir. 1990);  United States v. Miller,  636 F.2d                                         _____________    ______          850, 853 (1st  Cir. 1980).   Thus, parties must speak  clearly in          the trial court, on pain that,  if they forget their lines,  they          will likely be bound forever to hold their peace.  This is as  it          should  be:  the rule fosters worthwhile systemic ends and courts          will be the losers if they permit it to be too easily evaded.                    But foolish consistency is  reputedly the hobgoblin  of          little  minds,  see  Ralph  Waldo Emerson,  "Self  Reliance,"  in                          ___                                            __          Essays:   First  Series (1841),  and in  the last  analysis, this          _______________________          articulation  of the raise-or-waive  principle, though important,          is a matter of discretion.   See United States v. La Guardia, 902                                       ___ _____________    __________          F.2d 1010, 1013 (1st Cir. 1990) (holding that "an appellate court          has discretion, in an exceptional case, to reach virgin issues");          accord  Singleton v.  Wulff,  428 U.S.  106,  121 (1976);  United          ______  _________     _____                                ______          States v. Mercedes-Amparo,  980 F.2d 17,  18-19 (1st Cir.  1992);          ______    _______________          United  States v. Krynicki, 689 F.2d 289, 291-92 (1st Cir. 1982).          ______________    ________          Thus,  this rule  (like  most  rules)  admits  of  an  occasional          exception.   "Occasional" is the key word.  Since exceptions must          be  few and far  between, an appellate  court's discretion should                                          9          not  be  affirmatively  exercised  unless  the  equities  heavily          preponderate in favor of such a step.                    In  the La Guardia and Krynicki  opinions, we set forth                            __________     ________          guidelines  that suggest when it may be appropriate to invoke the          exception,  and we  need not  rehearse the  litany.   Instead, we          explain  why  those  criteria are  satisfied  here,  and,  in the          process, explicate the criteria themselves.                    First,  this is not a  case in which,  by neglecting to          raise an issue  in a timely  manner, a litigant has  deprived the          court of appeals of useful factfinding.   The court below made  a          number of findings as to  the appellants' conduct in interpreting          and enforcing Rule 45, and addressing the omitted  issue requires          only that we determine whether the described conduct, giving full          deference to these factual findings, falls within the established          boundaries  of legislative immunity.  Thus, it can fairly be said          that  the  omitted issue  is purely  legal  in nature,  and lends          itself to satisfactory resolution  on the existing record without          further  development of the facts.  These attributes ease the way          for invoking  the exception.  See  La Guardia, 902 F.2d  at 1013;                                        ___  __________          Krynicki, 689 F.2d at 291-92.          ________                    Second, appellants' belated proffer "raises an issue of          constitutional   magnitude,"  a   factor   that   favors   review          notwithstanding the procedural default.  La Guardia,  902 F.2d at                                                   __________          1013.   Third,  the  omitted  argument  is  "highly  persuasive,"          Krynicki,  689 F.2d at 292, a circumstance that "often inclines a          ________          court  to  entertain a  pivotal argument  for  the first  time on                                          10          appeal,"  La  Guardia,  902   F.2d  at  1013,  particularly  when                    ___________          declining to reach the  omitted argument threatens "a miscarriage          of justice,"  Krynicki,  689 F.2d  at 292.5   Fourth,  we see  no                        ________          special prejudice  or inequity  to the  plaintiffs.  The  omitted          defense is law-based, not fact-based.   In addition, the  parties          have  joined issue; the claim of legislative immunity was made in          full  in  the  appellants'  opening  brief  in  this  court,  the          plaintiffs responded to  it in extenso, and both  sides addressed                                      __ _______          the point during oral argument.  The absence of unfairness  has a          definite  bearing  on  a  decision  to  overlook  this  type   of          procedural default.   See United  States v. Doe,  878 F.2d  1546,                                ___ ______________    ___          1554  (1st Cir. 1989); cf. Singleton, 428 U.S. at 120 (discussing                                 ___ _________          importance,  in determining  whether to  reach the  merits  of an          omitted  issue, of ensuring  that the  opposing party  "ha[s] the          opportunity to present whatever  legal arguments he may have"  to          the  court  of  appeals).   Fifth,  the  omission seems  entirely          inadvertent  rather  than  deliberate;  although  withholding the          argument had  the regrettable effect of  blindsiding the district                                        ____________________               5In this  context, "miscarriage of justice"  means more than          the  individualized  harm   that  occurs  whenever  the   failure          seasonably to raise  a claim or defense  alters the outcome  of a          case.   Rather, courts  ordinarily will relax  the raise-or-waive          principle on this basis only if a failure to do  so threatens the          frustration of some broadly important  right.  See Schlesinger v.                                                         ___ ___________          Councilman,  420  U.S.  738,   743  (1975)  (holding  that,  when          __________          "jurisdictional  and  equity  issues  . .  .  [are]  sufficiently          important," courts  may consider issues  on appeal that  were not          raised below);  Krynicki, 689  F.2d at  292 (explaining  that the                          ________          interest at stake  must be  "legitimate and  significant").   For          this reason, courts often  are more prone to make  the infrequent          exception in  cases that  involve a discernible  public interest,          and less prone to do so in disputes between private parties.                                          11          judge  and needlessly  prolonging the  litigation, it  yielded no          tactical advantage to the defendants.                    Sixth    and perhaps most  salient   the  omitted issue          implicates  matters  of great  public  moment,  and touches  upon          policies as  basic  as federalism,  comity, and  respect for  the          independence  of  democratic   institutions.    Courts   must  be          sensitive to such concerns.  See Stone v. City and  County of San                                       ___ _____    _______________________          Francisco,  968 F.2d  850, 855  (9th  Cir. 1992)  (explaining the          _________          court's  election to  address  a matter  first  raised on  appeal          because  "[i]ssues  touching  on  federalism and  comity  may  be          considered sua  sponte"), cert. denied,  113 S. Ct.  1050 (1993).                                    _____ ______          We believe that this sensitivity is appropriately expressed  by a          frank recognition  that,  when  institutional  interests  are  at          stake,  the  case  for  the  favorable  exercise   of  a  court's          discretion is  strengthened, and  waiver rules  ought  not to  be          applied  inflexibly.6  See, e.g.,  Hoover v. Wagner,  47 F.3d 845                                 ___  ____   ______    ______          (7th  Cir. 1995)  (suggesting that  "when  matters of  comity are          involved, the ordinary doctrines of  waiver give way"); Jusino v.                                                                  ______                                        ____________________               6Our belief  that the defendants should not be strictly held          to a waiver of  their absolute legislative immunity in  this case          is fortified by  our recognition  that a primary  purpose of  the          immunity is to prevent courts from intruding into  precincts that          are   constitutionally  reserved   to  the   legislative  branch.          Overlooking  a waiver  in order  to further  this policy  of non-          interference  is  analogous to  our  settled  rule that,  because          federal courts are courts of limited jurisdiction, the absence of          federal subject matter jurisdiction can be raised on appeal  even          if  the  issue  was  not  raised  below.    See,  e.g.,  American                                                      ___   ____   ________          Policyholders Ins.  Co. v.  Nyacol Prods.,  Inc., 989  F.2d 1256,          _______________________     ____________________          1258 (1st  Cir. 1993), cert. denied,  114 S. Ct. 682  (1994).  In                                 _____ ______          both situations, looking past the waiver has the  salutary effect          of  ensuring that federal courts  do not poach  on preserves that          the Constitution reserves to other forms of oversight.                                          12          Zayas, 875  F.2d 986,  993  (1st Cir.  1989) (discussing  court's          _____          reluctance to  apply waiver rules  concerning "a line  of defense          that  calls  into  play  the  Commonwealth's  Eleventh  Amendment          immunity");  cf. Granberry  v. Greer,  481 U.S.  129,  134 (1987)                       ___ _________     _____          (explaining  that, when a  state fails  to raise  a nonexhaustion          claim  in  a  federal  habeas proceeding,  the  federal  tribunal          nonetheless should consider "whether  the interests of comity and          federalism   will  be   better  served   .   .  .   by  requiring          [exhaustion]").                    Here, an important  issue of  public concern  confronts          us.  It is presented belatedly, but in a posture that permits its          proper  resolution on  the  existing record  and works  no unfair          prejudice  to the opposing parties.  Failure to address the issue          may  well result in an  unwarranted intrusion by  a federal court          into the internal operations of a state legislature.  Under these          exceptional circumstances, we follow the course of perceived duty          and  proceed, in  the exercise  of our  discretion, to  weigh the          legislative  immunity argument.7   See  La Guardia,  902 F.2d  at                                             ___  __________                                        ____________________               7The dissent's principal response to this reason seems to be          that  overlooking  the  waiver  "eliminates  any  incentive"  for          legislators to raise  the immunity  defense in  a timely  manner.          Post at 39-40.   This reasoning strikes us as  triply flawed.  In          ____          the first place, that argument can be used with equal force as to          virtually all omitted defenses; its logical extension is that all          waivers should rigorously  be enforced.   That view  has much  to          commend it as a  matter of case  management, but, as La  Guardia,                                                               ___________          Krynicki,  Mercedes-Amparo, Hoover,  and Stone illustrate,  it is          ________   _______________  ______       _____          simply not the law.                In  the  second  place,  the  argument  underestimates  the          capabilities  of appellate  courts.    There  is  no  hint  of  a          deliberate  bypass in  this  case    the  belated tender  of  the          defense is the product  of a change in counsel  (coupled with the          appearance  of  Rhode Island's  Attorney  General  as an  amicus)                                          13          1013 ("Rules of practice and procedure are devised to promote the          ends  of  justice,  not  to defeat  them.")  (quoting  Hormel  v.                                                                 ______          Helvering, 312 U.S. 552, 557 (1941)).          _________          III.  THE MERITS OF THE OMITTED DEFENSE          III.  THE MERITS OF THE OMITTED DEFENSE                    We bifurcate  our analysis of  the legislative immunity          defense,  first discussing  the general  nature and scope  of the          doctrine  and  then  addressing  the  specific  contours  of  the          appellants' claim.                        A.  Legislative Immunity:  In General.                        A.  Legislative Immunity:  In General.                            _________________________________                    The  Speech or  Debate  Clause commands  that "for  any          Speech or Debate in  either House, [Senators and Representatives]          shall not be questioned in any other place."  U.S. Const. art. I,             6, cl. 1.  The Clause is,  by its terms, limited to members of          Congress.   See Lake  County Estates  v. Tahoe  Regional Planning                      ___ ____________________     ________________________          Agency,  440   U.S.  391,   404  (1979).     Nevertheless,  state          ______          legislators and  their surrogates enjoy a  parallel immunity from          liability for their legislative acts.                    While this immunity is derived from federal common law,          it is  similar in  scope and  object to  the immunity  enjoyed by          federal  legislators under the Speech or Debate Clause.  When the          Justices  initially recognized  state legislative  immunity  as a                                        ____________________          rather  than a change in  tactics or a  reassessment of political          costs   and,  if sandbagging  were to occur,  we have  confidence          that  this court  would see it  for what  is was,  and decline to          exercise discretion in favor of the sandbagger.                Finally,  if we assume that the dissent is correct and that          our  ruling today may  encourage legislator-litigants to withhold          immunity defenses for political reasons, that is still the lesser          evil,  far preferable in our view to the unwarranted insertion of          the federal court's nose into the state legislature's tent.                                          14          component of federal  common law,  they turned to  the Speech  or          Debate Clause  for guidance anent  the contours of  the doctrine.          See Tenney v. Brandhove, 341 U.S. 367, 376-79 (1951).  Later, the          ___ ______    _________          Court  acknowledged that  the immunities  enjoyed by  federal and          state legislators are essentially coterminous.  See Supreme Court                                                          ___ _____________          of Va. v. Consumers Union of the U.S., Inc., 446 U.S. 719, 732-33          ______    _________________________________          (1980).   Hence, our  exploration of the  appellants' legislative          immunity claim begins with a distillation of principles extracted          from federal constitutional jurisprudence.                    The  Speech or Debate Clause has its roots in a similar          provision found in  the English  Bill of  Rights of  1689.8   See                                                                        ___          United States  v. Johnson, 383  U.S. 169, 177-78  (1966); Tenney,          _____________     _______                                 ______          341 U.S.  at 372.    The Clause  is modeled  to  ensure that  the          Legislative  Branch  will  be   able  to  perform  without  undue          interference the whole of the legislative function ceded to it by          the Framers.   See Eastland v.  United States Serviceman's  Fund,                         ___ ________     ________________________________          421 U.S.  491, 502 (1975).   To that end, the  Clause operates to          shelter   individual  legislators   from  the   distractions  and          hindrance  of civil  litigation, see id.  at 503,  and "immunizes                                           ___ ___          [them]  from suits  for  either prospective  relief or  damages,"          Consumers Union, 446 U.S. at 731.          _______________                    While  the  core  protection conferred  by  the  Clause          concerns speech or debate by a member of Congress on the floor of                                        ____________________               8The British version provides:  "That the Freedom of Speech,          and  Debates  or  Proceedings  in  Parliament,  ought  not to  be          impeached or questioned in any Court or Place out of Parliament."          1 Wm. & Mary, Sess. 2, ch. II (1689).                                          15          either the Senate or the House, see Gravel v. United States,  408                                          ___ ______    _____________          U.S. 606, 625  (1972), the  penumbra of the  Clause sprawls  more          broadly.   This breadth of  application, which draws  its essence          from the Supreme Court's  espousal of a "practical rather  than a          strictly literal reading" of  the Clause, Hutchinson v. Proxmire,                                                    __________    ________          443 U.S.  111, 124 (1979), is made manifest in two ways.  For one          thing,  the Clause's  prophylaxis extends  to any  act "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 (1880).   So  read, the Clause  protects not only  speech and          debate  per  se,  but  also   voting,  see  id.,  circulation  of                                                 ___  ___          information  to other legislators, see Doe  v. McMillan, 412 U.S.                                             ___ ___     ________          306,  312  (1973),  participation  in  the  work  of  legislative          committees, see Gravel, 408 U.S. at 624; Tenney, 341 U.S. at 378-                      ___ ______                   ______          79, and a host of kindred activities.                    For  another thing,  because the  applicability of  the          Speech or Debate Clause necessarily focuses on particular acts or          functions,  not  on  particular  actors  or   functionaries,  the          prophylaxis  of  the  Clause  also extends  to  legislative  acts          performed  by non-legislators.   See  Eastland, 421  U.S. at  507                                           ___  ________          (refusing  to  draw  a  distinction  between  the  members  of  a          congressional  subcommittee and  the subcommittee's  counsel when          the  latter's  actions  were  within  the  sphere  of  legitimate          legislative activity); Gravel, 408 U.S. at 618 (holding that "the                                 ______          Speech or Debate Clause applies not only to a Member  but also to          his aides  insofar  as  the conduct  of  the latter  would  be  a                                          16          protected legislative  act if performed by  the Member himself").          This extension evinces a recognition that, as a practical matter,          legislators cannot be expected to  perform their constitutionally          allocated tasks without staff support.                    This is not to say that the protections afforded by the          Speech  or Debate  Clause  are limitless.    They are  not.   See                                                                        ___          Gravel, 408 U.S. at 625.  Although the Court has  read the Clause          ______          generously,  its  protections  must  match  its  purposes.    See                                                                        ___          Eastland, 421  U.S. at 501-02.   When all  is said and  done, the          ________          absolute immunity conferred by the Clause is not afforded "simply          for the personal or  private benefit of Members of  Congress, but          to  protect the integrity of the  legislative process by insuring          the independence  of individual  legislators."  United  States v.                                                          ______________          Brewster, 408 U.S. 501, 507 (1972).          ________                    The key limitation    which applies both to members  of          Congress  and  to congressional  staffers    is  that  the Clause          protects "only purely legislative activities."  Id. at 512.  If a                                                          ___          legislator (or  his surrogate)  undertakes actions that  are only          "casually or incidentally related to legislative affairs," id. at                                                                     ___          528, or  which fall outside the  "legitimate legislative sphere,"          Eastland,  421  U.S.  at  503  (citation  omitted),  no  immunity          ________          inheres.  By the same token, the mere fact that a legislator or a          legislative  aide performs an  act in his  official capacity does          not automatically  confer protection  under the Speech  or Debate          Clause.  See Gravel, 408 U.S. at 625.  For example, when a member                   ___ ______          of Congress disseminates press releases to the public, the Clause                                          17          does not attach  because such documents  are "primarily means  of          informing those outside the  legislative forum."  Hutchinson, 443                                                            __________          U.S.  at 133.   So, too, activities that  are more political than          legislative in nature  do not come within the legislative sphere,          and, hence,  do not implicate the  Speech or Debate Clause.   See                                                                        ___          Brewster,  408 U.S.  at  512.    These  activities  include  such          ________          familiar    fare   as   "legitimate   `errands'   performed   for          constituents,   the  making   of  appointments   with  Government          agencies,  [and] assistance  in  securing Government  contracts."          Id.          ___                      B.  Legislative Immunity:  In Particular.                      B.  Legislative Immunity:  In Particular.                          ____________________________________                    We  now turn  to  the merits  of appellants'  assertion          that, under federal  common law, the  instant action founders  on          the  shoals of  absolute  legislative immunity.   The  plaintiffs          brought  suit, as  we have  said,  under 42  U.S.C.    1983.   In          actions invoking  federal civil  rights statutes,  federal courts          customarily  "equate[]  the legislative  immunity to  which state          legislators are entitled . . . to that accorded Congressmen under          the Constitution."   Consumers Union,  446 U.S. at  733.   Viewed                               _______________          against  this backdrop,  it is  unsurprising that  the courts  of          appeals  historically  have relied  on  Speech  or Debate  Clause          precedents   to  define   the  doctrinal   boundaries  of   state          legislative  immunity under the  federal common law.   See, e.g.,                                                                 ___  ____          Schlitz  v. Commonwealth  of Va.,  854 F.2d  43, 45-46  (4th Cir.          _______     ____________________          1988); Agromayor v. Colberg, 738 F.2d 55, 58-59 (1st Cir.), cert.                 _________    _______                                 _____          denied,  469 U.S. 1037 (1984); Colon Berrios v. Hernandez Agosto,          ______                         _____________    ________________                                          18          716 F.2d 85, 89-90 (1st Cir. 1983) (per curiam); Green v. DeCamp,                                                           _____    ______          612 F.2d 368, 371-72 (8th Cir. 1980).  Thus, our mode of analysis          dovetails with the Speech or Debate Clause cases.                    At the  heart  of  our inquiry  lies  the  question  of          whether  appellants' acts  in respect  to Rule  45 are  "part and          parcel of the legislative process."  Gravel, 408 U.S. at 626.  If                                               ______          so, appellants  are protected.  See id.  To answer this question,                                          ___ ___          we must understand the nature of the acts.9   We can look at them          in one of two ways.                    In a general  sense, the defendants    the Speaker  and          the head doorkeeper   did nothing more  or less than to interpret          and enforce Rule 45.  Where, as here, a legislative body adopts a          rule,  not invidiously discriminatory on  its face, see infra pp.                                                              ___ _____          26-28,  that  bears  upon  its  conduct  of  frankly  legislative          business, we think that the doctrine of legislative immunity must          protect legislators and  legislative aides  who do  no more  than          carry out the will of the body by enforcing the rule as a part of                                        ____________________               9In   certain  types  of  cases,  the  legislative  immunity          analysis centers on function,  attempting to ascertain whether an          action  by   one  or   more  legislators  is   administrative  or          legislative   in  nature.     See,  e.g.,   Negron-Gaztambide  v.                                        ___   ____    _________________          Hernandez-Torres, 35 F.3d 25, 27-28 (1st Cir. 1994) (holding that          ________________          legislators' decision  to discharge librarian  was administrative          in nature, and did not give rise to legislative immunity).  Here,          however, we are dealing with a procedural rule adopted by a house          of  the legislature  as a  whole for  the management  of  its own          business.   Hence, we are not concerned with whether the adoption          of the rule comprises  a legislative act   that  is transparently          clear   but, rather, with whether that act is more than "casually          or  incidentally   related"   to  core   legislative   functions.          Brewster, 408 U.S. at 528.          ________                                          19          their  official duties.10   See  Consumers Union  of the  U.S. v.                                      ___  _____________________________          Periodical Correspondents'  Ass'n, 515  F.2d 1341,  1348-50 (D.C.          _________________________________          Cir. 1975) (holding congressional employees' actions in enforcing          Congress's  internal seating regulations  immune under  Speech or          Debate Clause),  cert.  denied, 423  U.S. 1051  (1976); see  also                           _____  ______                          ___  ____          Davids  v. Akers, 549 F.2d  120, 123 (9th  Cir. 1977) (dismissing          ______     _____          action  challenging  internal  rules  for  committee  assignments          brought  by  members  of  the Arizona  House  of  Representatives          against the Speaker);  cf. R.I.  Const. art. VI,    7  (expressly                                 ___          authorizing the  House to  "determine its rules  of proceeding").          The short of  it is  that the doctrine  of legislative  immunity,          like  the Speech or Debate Clause,  attaches when solons' actions          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  [committed to their jurisdiction]."  Gravel, 408 U.S. at                                                        ______          625.                    In a more  specific sense,  it might be  said that  the                                        ____________________               10We  reject  the plaintiffs'  attempt to  differentiate the          Speaker from the doorkeeper, based on the fact that the latter is          not  a legislator.   The  case law  teaches that,  as long  as an          aide's conduct would  be covered by legislative immunity were the          same conduct performed by the legislator himself, the aide shares          the immunity.  See Eastland, 421 U.S. at 507; Gravel, 408 U.S. at                         ___ ________                   ______          616; Consumers  Union of  the U.S. v.  Periodical Correspondents'               _____________________________     __________________________          Ass'n, 515 F.2d 1341, 1348-50 (D.C. Cir. 1975), cert. denied, 123          _____                                           _____ ______          U.S. 1051 (1976).  Petteruti's actions in keeping the House floor          unsullied were performed  by virtue of  an express delegation  of          authority  to him as part of the House's staff support apparatus,          under the auspices of  the Speaker and the legislative  body as a          whole.  No more is exigible.                                          20          district  court granted  relief because  it found  Rule 45  to be          fatally deficient in three particulars:  (1) on its face, Rule 45          transgressed the First Amendment by banning lobbying on the floor          of the House while the House is in session; (2) on its face, Rule          45 transgressed  the First  Amendment by banishing  all lobbyists          from  the   perimeter  of  the  House;  and  (3)  the  appellants          interpreted, applied, and enforced  Rule 45 to allow governmental          lobbyists onto the House floor while denying comparable access to          private  lobbyists.    Assuming  for argument's  sake  that  this          narrower  perspective is  relevant, the  question of  whether the          appellants are entitled to  legislative immunity would be reduced          to a question of whether the acts which the district court  found          problematic  fell within  or without "the  legitimate legislative          sphere."  Eastland, 421 U.S. at 503.                    ________                    The  first   area  of   inquiry  can   celeritously  be          dispatched.  We think it is beyond serious dispute that enforcing          a duly enacted  legislative rule which prohibits lobbying  on the          House floor during House sessions  is well within the legislative          sphere.   Such  a restriction necessarily  affects the  manner in          which  the  House conducts  its  most characteristic  legislative          functions, e.g., debating  and voting.   A rule  that colors  the                     ____          very conditions  under which legislators engage  in formal debate          is  indubitably part and  parcel of the  legislative process, and          the acts of House  officials (whether or not elected  members) in          enforcing  it  are  therefore  fully  protected against  judicial          interference by the  doctrine of legislative immunity.   See id.;                                                                   ___ ___                                          21          see also Doe, 412 U.S. at 312-13; Tenney, 341 U.S. at 378-79.          ___ ____ ___                      ______                    At  first blush, the next area of inquiry   whether the          exclusion of all  lobbyists from  the perimeter of  the House  is          within  the legislative  sphere    appears more  murky.   Seating          arrangements for  non-legislators arguably are  less integral  to          the legislative  process than  the regulation of  lobbying during          House  sessions.   As  the trial  testimony  in this  case  amply          demonstrates, however,  when lobbyists  are present on  the House          floor (even on the perimeter), they often become embroiled in the          legislative  process either through self-initiated or legislator-          initiated  contacts.  And, even if lobbyists are able to maintain          stoic  silence on the perimeter, their  mere presence affects the          legislative   environment.11     We  conclude,   therefore,  that          regulation of admission to the House floor comprises "an integral          part  of the  deliberative and  communicative processes  by which          Members  participate in . .  . House proceedings  with respect to          the   consideration   and  passage   or  rejection   of  proposed          legislation."    Gravel, 408  U.S.  at  625.   Consequently,  the                           ______          doctrine of legislative immunity pertains.                    We are not alone  in our view of a  legislature's House                                        ____________________               11The plaintiffs  themselves have argued, in  the context of          their First Amendment claim,  that they should at least  be given          the opportunity to  sit silently  on the perimeter  of the  House          floor  so  that  they  may  communicate  through  their  physical          presence.  The district court accepted this argument, and made it          a  cornerstone of  the  ensuing First  Amendment  analysis.   See                                                                        ___          Social Workers, 874 F. Supp. at 539-41.   The importance that the          ______________          plaintiffs attach to admittance  to the perimeter indicates their          own  recognition  that,  by  mere  physical  presence,  they  can          influence ongoing legislative business.                                          22          as its castle.  In Periodical Correspondents', the court  reached                             __________________________          a  similar conclusion.    There,  the Periodical  Correspondents'          Association, which  issues credentials to the  press galleries of          Congress,   denied  accreditation  to  a  particular  periodical,          Consumer Reports, on  the ground that it had ties  to an advocacy          organization.  Consumers Union  sued the sergeants-at-arms of the          House  and  Senate, among  other  defendants,  alleging that  the          exclusion  violated the First Amendment.  The court held that the          sergeants-at-arms were  immune under the Speech  or Debate Clause          because  arrangements  for seating  the  press in  the  House and          Senate galleries were "integral" to "the  legislative machinery."          515 F.2d  at 1350.   In  a later case,  the court  elaborated its          rationale,  explaining  that the  seating  "immediately concerned          House   consideration  of   proposed  legislation"   because  the          arrangements "were  intended to  shield members of  Congress from          press members' use of  their House access to  lobby legislators."          Walker  v.  Jones, 733  F.2d  923,  930  (D.C. Cir.)  (discussing          ______      _____          Periodical Correspondents'), cert. denied, 469 U.S. 1036 (1984).          __________________________   _____ ______                    Like the  seating arrangements at  issue in  Periodical                                                                 __________          Correspondents', the  seating arrangements  dictated  by Rule  45          _______________          involve the "regulation of the very atmosphere in which lawmaking          deliberations occur."   Walker, 733  F.2d at 930.   Moreover,  if                                  ______          there is a distinction between Periodical Correspondents' and the                                         __________________________          instant case, it does  not advantage the present plaintiffs;  the          Rhode  Island  House is  seeking to  regulate  access to  its own          floor, rather than to galleries located above the floor.                                          23                    We come now to the third area of inquiry, involving the          significance,  if   any,  of  the  plaintiffs'   claim  that  the          appellants  interpreted and  enforced  Rule 45  in a  manner that          allowed  lobbying on  the House  floor by  governmental,  but not          private,  lobbyists.    This  as-applied  exclusion  of   private          lobbyists, at  its most primitive level,  involves regulating the          legislative environment  by controlling access to  the seating on          the perimeter of  the House  floor.  Because  such regulation  is          "done in a session of the House by one of its members in relation          to  the business  before it,"  Kilbourn, 103  U.S. at 204,  it is                                         ________          within the legislative sphere.                    To  be  sure, both  our  dissenting  colleague and  the          plaintiffs  protest  that  the  House  treats  private  lobbyists          differently (and less hospitably) than public lobbyists, and that          this differential  treatment offends the First  Amendment.  These          charges  lack  sufficient  force  to  strip away  the  shield  of          absolute legislative immunity.                    We  believe that  the  body of  our opinion  adequately          rebuts the  dissent's views, and we decline  to repastinate well-          ploughed ground.  We do add, however, our belief that the dissent          seriously  misconstrues  the  Court's  Speech  or  Debate  Clause          jurisprudence beyond all  recognition.  To the extent that Powell                                                                     ______          can be read to hold that legislative immunity does not extend  to          legislative  employees, the  Court in  later cases  has routinely          confined it to its unique facts.  See, e.g., Gravel,  408 U.S. at                                            ___  ____  ______          621 (specifically identifying Kilbourn, Powell, and Dombrowski v.                                        ________  ______      __________                                          24          Eastland, 387 U.S.  82 (1967),  and stating that  none "of  these          ________          cases   adopted  the   simple  proposition   that  immunity   was          unavailable to congressional or committee  employees because they          were not  Representatives or  Senators").   Rather, the case  law          "reflect[s]  a decidedly  jaundiced  view towards  extending  the          Clause  so as  to privilege  illegal or  unconstitutional conduct          beyond  that   essential  to   foreclose  executive  control   of          legislative  speech  or debate  and  associated  matters such  as          voting and committee  reports and proceedings."   Id.  We  see no                                                            ___          reason why judicial  control of legislative  speech or debate  is          any  less  pernicious  than  executive control.    Moreover,  the          decision  not to  extend  legislative immunity  to  congressional          employees in cases such as Powell turned on whether "relief could                                     ______          be afforded without proof of a legislative act  or the motives or          purposes underlying such an  act," thereby avoiding impermissible          encroachment on "legislative independence."   Id. at 620.   Under                                                        ___          that standard, judicial review of House Rule 45   as the tortured          course  of  the  proceedings  below  graphically   illustrates             unquestionably required a substantial judicial intrusion into the          legislative domain.  Finally, we recognize, as the dissent points          out,  that the  Court  has remarked  an exception  to legislative          immunity for the exercise  by legislators of punitive enforcement                                                       ________          authority outside  the ambit  of purely  legislative proceedings.          See Consumers  Union, 446 U.S. at  736.  But the  Court has never          ___ ________________          suggested, much less held, that the enforcement of a rule adopted          by an entire legislative  body designed to govern the  conduct of                                          25          legislative  proceedings falls  within that  exception.   If that          were the rule, legislative  immunity would be little more  than a          rumor, and the Speech or Debate Clause would be easily skirted.                    Similarly, the plaintiffs'  "as-applied" arguments  are          unavailing.   In  Eastland  v. United  States Servicemen's  Fund,                            ________     _________________________________          supra, the plaintiffs asseverated  that "once it is alleged  that          _____          First Amendment  rights may be infringed  by congressional action          the Judiciary may intervene to protect [First Amendment] rights."          421  U.S. at 509.   The Court flatly  rejected this asseveration,          warning that the effort  to carve out such an  exception "ignores          the  absolute nature of the speech or debate protection and [the]          cases which have broadly construed that protection."  Id. at 509-                                                                ___          10.  The Court added:  "Where we are presented with an attempt to          interfere with an ongoing activity by Congress, and that activity          is found to be  within the legitimate legislative sphere,  [First          Amendment] balancing plays no part."  Id. at 510 n.16.  The Ninth                                                ___          Circuit put matters  even more bluntly, writing that  "nothing in          the First  or Fourteenth Amendments or in 42  U.S.C.   1983 . . .          can justify [an] attempt to inject the Federal Judiciary into the          internal  procedures of a House of a state legislature."  Davids,                                                                    ______          549 F.2d at 123.                    The  plaintiffs'  also  assert  that  the  differential          treatment  of public  and  private lobbyists  violates the  Equal          Protection  Clause.  This assertion does not derail the engine of          legislative immunity.   Activities that comprise  part and parcel          of the legislative process are protected by legislative immunity;                                          26          that immunity is not forfeited simply because the activities,  if          unprotected,  might violate a  plaintiff's constitutional rights.          See Doe, 412 U.S. at 312-13;  see also Colon Berrios, 716 F.2d at          ___ ___                       ___ ____ _____________          91.  Thus,  in Doe, the  Supreme Court ruled  that the Speech  or                         ___          Debate   Clause   shields   legislators'   actions   "within  the          legislative sphere,  even though  [the] conduct, if  performed in          other   than   legislative   contexts,   would   in   itself   be          unconstitutional."   412  U.S. at  312-13 (internal  citation and          quotation marks omitted).                    For obvious reasons, the  plaintiffs chafe at the broad          sweep of the doctrine of legislative immunity, and, in struggling          to make their point, they marshal a parade of horribles.  To cite          a  typical  example, they  raise  the specter  of  a hypothetical          legislature that votes to allow access to its chambers to members          of only one race or to adherents of only one religion.                    The  plaintiffs  have the  right  to  march, but  their          parade  is  on  the  wrong  route.    The  Court  has  explicitly          recognized  that  there may  be  some  conduct, even  within  the          legislative   sphere,  that   is   so  flagrantly   violative  of          fundamental constitutional protections  that traditional  notions          of legislative  immunity would  not deter judicial  intervention.          See, e.g., Kilbourn, 103  U.S. at 204 (leaving open  the question          ___  ____  ________          of whether "there may not be things done, in the one House or the          other, of an extraordinary  character, for which the members  who          take part in the act may be held  legally responsible"); see also                                                                   ___ ____          Tenney, 341 U.S. at 379 (Black, J., concurring) (recognizing that          ______                                          27          the  Court's jurisprudence  "indicates that there  is a  point at          which  a  legislator's  conduct  so far  exceeds  the  bounds  of          legislative power that he may be held personally liable in a suit          brought  under the Civil Rights Act").  Whatever may be the outer          limits  of the doctrine  of legislative immunity,  however, it is          clear that  the instant case  is not so  extreme as to  cross (or          even closely approach) the border.                    Taking the  district court's  factual findings  at face          value, Rule 45, as applied, may  arguably be wrong as a matter of          policy  and as  a matter of  constitutional law    but  it is not          invidiously discriminatory.  To the contrary, the differentiation          between private and public  lobbyists appears to be based  on two          factors  that  bear  some  rational  relationship  to  legitimate                               ____          legislative  purposes.    First, the  House  leadership explained          that,  in its view, the  exclusion of private  lobbyists from the          floor  was  a  useful  tool  to   bolster  public  confidence  in          legislative   independence   and   integrity.12      Second,  the                                        ____________________               12In  a  debate over  a motion  to  reconsider Rule  45, the          Majority Leader, Representative George Caruolo, stated:                    This  isn't trying  to retard  lobbyists from                    pursuing their vocation  . . .   It's a  rule                    that says, quite simply, this is the people's                    chamber, the  public  is invited.    But  the                    business of the people should be conducted by                    the people's representatives.   It should not                    be  in any  way  affected by  people who  are                    registered to  advocate particular positions,                    whether they are paid or unpaid . . . .                    Later,  Representative Caruolo explained why he thought          that  governmental lobbyists  on the  floor of  the House  do not          trigger the same public perceptions as private lobbyists:                                          28          defendants consistently  have taken the position  that government          lobbyists  act in  effect  as support  staff  for legislators  by          giving them neutral statistical and  factual information relevant          to pending  legislation.  These justifications  for the continued          presence of government lobbyists, found by the  district court to          be authentic (if asthenic),  see Social Workers, 874 F.  Supp. at                                       ___ ______________          541-42, afford a sufficiently rational basis  to persuade us that          this case  does not  give rise  to the  question reserved  by the          Kilbourn Court.13          ________                    Thus,  we  conclude  that,  insofar as  the  appellants          enforced  Rule 45's prohibitions  against private  lobbyists, but          spared governmental  lobbyists from exclusion,  they acted within          the  legislative   sphere  and   are   protected  from   judicial                                        ____________________                    [A]ny  general  officer  or   any  government                    employee  who   is  here,  working   in  this                    building  [the  State  House]  on  government                    policy   they're paid  by the government.  We                    are the government.  That's the distinction .                    . .   Let's not have private groups  out here                    trying to  manipulate this floor while we are                    taking votes.          In  the  same  vein,  Edward  Clement,  the  House's  legislative          coordinator,  testified  that  he  did  not  consider  government          lobbyists to be lobbyists per se, but, rather, "people called [to          the floor] by members  of the House for  informational purposes."          Speaker Harwood echoed the  same themes, describing the principal          spokesman  for the  state Budget  Office as  "a dollars-and-cents          guy.  . . .  a resource  factual guy," in contradistinction to "a          lobbying, influence guy."               13This  conclusion is  not undermined  by the  lower court's          determination that these reasons  were insufficient to warrant an          infringement on the First  Amendment rights of private lobbyists.          See  Social Workers,  874  F. Supp.  at  541-42.   Such  rigorous          ___  ______________          testing, appropriate  in the First  Amendment context, is  out of          place  in the context of legislative immunity.  See Eastland, 421                                                          ___ ________          U.S. at 509 n.16.                                          29          interference by the doctrine of absolute legislative immunity.          IV.  CONCLUSION          IV.  CONCLUSION                    We  need go  no further.14   In our  republican system,          different  institutions of  government occupy  different spheres.          Within  its  own  domain,  the  legislative  branch  of  a  state          government is entitled to a reasonable measure of independence in          conducting its  internal affairs.    As a  rule, a  legislature's          regulation  of  the atmosphere  in  which  it conducts  its  core          legislative activities    debating, voting,  passing legislation,          and  the like    is part and  parcel of  the legislative process,          and,  hence, not subject to  a judicial veto.   See Eastland, 421                                                          ___ ________          U.S. at  509.  Because  Rule 45,  and the defendants'  actions in          interpreting  and  enforcing it,  fit  within the  sweep  of this          generality,   the  doctrine  of   absolute  legislative  immunity          requires that the federal courts refuse to entertain the suit.          Reversed.  No costs.          Reversed.  No costs.          ________   ________                Appendix follows; Dissenting opinion follows appendix                  Appendix follows; Dissenting opinion follows appendix                                          ____________________               14We  do not reach and, accordingly,  express no opinion on,          the soundness  of the  district court's First  Amendment analyses          and rulings.                                          30                                       APPENDIX                                       APPENDIX                                   Text of Rule 45                                   Text of Rule 45                                   _______________                         SIXTHLY - OF ADMISSION TO THE FLOOR                    45(a) The following persons shall be entitled                    to admission to the floor of the House during                    the  session  thereof:   The  Governor,   the                    Lieutenant Governor, the Secretary  of State,                    the Attorney General, the  General Treasurer,                    the  state  controller,  and members  of  the                    Senate,  judges and  ex-judges of  the United                    States  court and  of  the state  courts, ex-                    governors,  ex-Speakers  of  the  House,  ex-                    members    of     the    General    Assembly,                    representatives  of the  legislative council,                    legislative staff, director of the department                    of   administration,   the  budget   officer,                    assistant  in charge  of  law  revision,  and                    clerks  of the  Senate and  House committees,                    superintendent  of  public  buildings,  state                    librarian, and the authorized representatives                    of the  press, as  provided in the  rule next                    following, and such other persons as shall be                    admitted to the floor by the Speaker.  At the                    discretion  of the  Speaker,  members of  the                    public may  be admitted to  the House  floor,                    provided,  however, that all such persons may                    not stay  in the  House  chamber unless  they                    remain seated along the sides of the chamber,                    refrain from conversation,  and maintain  the                    decorum of  the House.   All persons  who are                    unable  to  access  the  House  galleries  by                    reason of physical handicap shall be entitled                    to admission to the House floor.                    (b)   Lobbyists    including   former   state                    legislators  who are  lobbyists shall  not be                    entitled to  admission  to the  floor of  the                    House during the session  thereof.  No person                    entitled  to admission  to  the floor  of the                    House  during  the  session   thereof,  shall                    either directly or  indirectly engage in  the                    practice  of  lobbying  as defined  in  Rhode                    Island General Laws (22-10-2).                    (c) Admission to the  House Lounge is limited                    to  House  members  and  persons  invited and                    accompanied  by a  House member  who will  be                                          31                    responsible  for  them while  in  the lounge.                    Such  persons when  no longer  accompanied by                    the  House  member  with  whom  they entered,                    shall leave the  lounge.  No  lobbyists shall                    be admitted to  the House  lounge during  the                    House session.                                          32                      LYNCH,  Circuit  Judge,   dissenting.    When   the                      LYNCH,  Circuit  Judge,   dissenting.                              ____________________________            government chooses to  listen only  to its own  voice in  the            political  process   by  excluding  the   voices  of  private            citizens, core  First Amendment values are violated.   At the            heart of  this case  is not the  ability of the  Rhode Island            House  to  promulgate  rules  for  the  conduct  of  its  own            business,  but  the  defendants'  actual  practice,  directly            contrary to  the  Rule adopted  by  the House,  of  excluding            speakers  unless  they  represent  the  government  and  thus            express the government's own  viewpoint.  While, in  my view,            the House  could have  legitimately closed the  floor of  its            Chamber to all  who sought to influence  its work, defendants            may  not permit  government lobbyists to  lobby on  the House            floor   while  prohibiting   private  citizens   and  private            lobbyists  from doing the same.  The First Amendment does not            permit the government to put its  thumb on the scale in  this            way and favor itself in the arena  of political speech.  With            respect, I dissent.                      Unlike  the   majority,  I   would  not  take   the            extraordinary   step   of   affording   defendants   absolute            legislative immunity, thus preventing the court from reaching            the First Amendment issue.  The  majority does so in the name            of federalism and comity,  important values to be sure.   But            naming  those values  may obscure  the issues  involved here.            This  case   does  not   implicate   traditional  issues   of                                         -33-                                          33            "federalism"  at  all,  such  as  the  limits  on  enumerated            congressional  powers, see United States v. Lopez, 115 S. Ct.                                   ___ _____________    _____            1624 (1995), or the  relative allocation of legislative power            between state and federal  governments, see U.S. Term Limits,                                                    ___ _________________            Inc. v. Thornton,  115 S. Ct. 1842 (1995).  Rather, this case            ____    ________            raises  thorny issues  of  the  constitutional allocation  of            powers  between the  people  and those  elected to  represent            them,  and  of  the  appropriate role  of  federal  courts in            resolving such issues.                                         Facts                                        _____                      Rule  45 on its face does not permit any lobbyists,            government or private, to be on the House floor and prohibits            lobbying  on  the  floor  by  anyone,  private  citizen15  or            professional  lobbyist, while the House is in session.  It is            that Rule which reflects the decision of the House as  to the            running of  its affairs.  Permitting  government lobbyists to            lobby on the floor of the House violates the House Rule.                        The defendants  claimed that  such  were not  their            practices.  But the district court, after trial, found to the            contrary  and  the defendants  have  not  appealed from  that            factual determination.   The  record amply  demonstrates that            government lobbyists were regularly plying their trade on the                                            ____________________            15.  Under the terms of Rule 45, certain government officials            including  the  Governor, the  Secretary  of  State, and  the            Attorney  General  have  access  to  the  floor.    The  Rule            nonetheless prohibits anyone from lobbying.                                         -34-                                          34            floor after adoption of the House  Rule which ostensibly kept            them out.    And, as  the  district court  found,  defendants            "flagrantly permitted" such activities.                      The Rhode Island  House presents a  factual setting            perhaps unique in this country.  Unlike    many   legislative            bodies,  including the  United  States  Congress, most  Rhode            Island legislators are part-time and have neither offices nor            staff.  The House meets for six months or less in a year, and            then only for three  or four afternoons and evenings  a week.            Once  the  session  starts,  it  rarely breaks  until  it  is            concluded.  Legislators typically arrive just in time for the            session and leave immediately on its conclusion.  Legislators            have no  desks other  than their  desks on the  floor of  the            Chamber.   Often there is no  other place  but  the floor for            direct  communication   with  the  legislators,   apart  from            disturbing  legislators  in   their  capacities  as   private            citizens where they live or work.                      Amendments  to bills  are often introduced  for the            first  time on the floor.  They  are often unavailable to the            public  before being introduced and are available only in the            House Chamber after being introduced.  Frequently, especially            toward the close  of the session, the House votes  on such an            amendment on the  same day, and sometimes  within minutes, of            the amendment being introduced.                                           -35-                                          35                      Around  the perimeter  of  the floor  of the  House            Chamber  are approximately  eighteen chairs.   Some  of those            chairs  have  been filled  on  a  daily basis  by  government            lobbyists  since  Rule 45  was  enacted.   The  remainder are            filled  by members  of  the public.    Private lobbyists  are            relegated to balcony seating.                      Government officials sitting in the perimeter seats            have  and  use  a  decided advantage  in  communicating  with            legislators and in  collecting and disseminating information.            Individual legislators frequently walk over to the  perimeter            to speak with the government lobbyists.  These lobbyists send            notes to legislators indicating that they would like to speak            and  they  get the  attention  of  individual legislators  by            signalling them.   People seated  along the perimeter  of the            floor receive more  information than others concerning  floor            amendments, which  are  distributed to  the legislators  only            when they are introduced.  Thus, government lobbyists who are            sitting on the floor  can see copies of floor  amendments and            have the  opportunity to  communicate their views,  including            pertinent information,  to the legislators.   It is virtually            impossible  for those who are not permitted onto the floor to            learn the exact language of an offered amendment because  the            text of  floor amendments is  not distributed outside  of the            Chamber.                                         -36-                                          36                      Government  lobbyists  have  actively  lobbied  for            their  positions both from  the perimeter seats  and from the            floor  itself.  They have  done so on  bills which government            officials  have  supported  and  which  private  groups  have            opposed.  Those bills often concerned matters of great public            debate.  For example, the topic of public funding of abortion            was  taken up by the  legislature.  Agents  of the Governor's            office,  which supported such  funding, sat on  the floor and            talked  to  legislators while  the  lobbyist  from the  Rhode            Island  State Right  to Life  Committee, Inc.,  which opposed            such funding, was  relegated to the balcony.   Similarly, the            Attorney  General  of  Rhode  Island  introduced  a  bill  to            reinstate the  death penalty and he and his staff were on the            floor during debates on  the bill, speaking with legislators.            Private group lobbyists opposed  to the bill, including those            from  the  Rhode  Island  Affiliate  of  the  American  Civil            Liberties Union, could only watch  from the balcony and  were            precluded from the floor and from lobbying.                      The same duality  characterized the influencing  of            bills  on  welfare reform.    Government  lobbyists from  the            Department of  Human Services were present  for floor debates            on  an  amendment  which   would  restore  a  General  Public            Assistance  program  cut from  the  Governor's  budget.   The            Department  favored elimination  of  the program.   Lobbyists            from the National Association of Social Workers (NASW), which                                         -37-                                          37            opposed eliminating the program, were excluded.  There was no            break in  the  session between  the  time the  amendment  was            introduced and it was voted upon.  Similarly, in  debate over            an amendment to an AFDC program, lobbyists for the Department            in the perimeter seats attempted to influence the vote, while            a NASW lobbyist in the balcony ineffectively tried  to convey            the NASW's  position by  waving hands.   Prison-related bills            received  the  same  treatment.   Department  of  Corrections            officials were  on the  floor with legislators  during debate            while ACLU  lobbyists who opposed  the Department's  position            watched ineffectively from the  balcony.  There were numerous            other  instances  where  the  Governor's  Office,  the  State            Police, the  Department of Economic Development,  the Banking            and  Insurance  Department,  the Fire  Marshal,  the  General            Treasurer's Office and the Department  of Business Regulation            lobbyists  spoke  directly  with  legislators  on  the  floor            regarding pending legislation.16                      Nor  were   the  advantages  given   to  government            lobbyists   limited  to   lobbyists  from   state  government            agencies.   The lobbyist for  the Mayor of  Providence was on            the floor of the House  every day, frequently conversing with            legislators.  She spoke with legislators on issues as  varied                                            ____________________            16.  The ability  of government employees  to sit in  the few            perimeter seats may have been used  to advance their personal            interests as well.  For example, during debates  on incentive            pay  for  court clerks,  two court  clerks  sat in  the aisle            seats.                                         -38-                                          38            as a proposed  gun court,  the Providence  water supply,  and            funding for the city.                      Lobbying  by  government  lobbyists at  times  took            place  among  the seats  of  the legislators,  even  with the            knowledge of the Speaker.  For example, when the House was in            session, the Providence lobbyist  was on a cellular telephone            and walked  in between  the rows  of the legislators'  seats,            passing  the telephone to  certain members of  the House, who            listened  and spoke  into the  telephone.  The  telephone was            eventually passed  to the  Speaker, who also  listened, spoke            and chuckled.   Only  when a  member of  the House  raised an            objection  did  the Providence  lobbyist  move  to the  outer            aisles.  But she was not asked to leave the floor and was not            asked to refrain from speaking to the legislators.                                       Immunity                                       ________                      I  respectfully disagree  with the  decision of  my            very able colleagues to  afford absolute legislative immunity            to both  of the defendants.  Not only was the defense waived,            but  even if  it had  been properly  raised, the  doctrine of            legislative  immunity  does  not,  in my  view,  foreclose  a            judicial  determination  of  the  constitutionality   of  the            defendants'  practices.   The  challenged  practices  do  not            constitute the  kind of "purely legislative  activities" that            have  traditionally   triggered   the  protections   of   the            legislative immunity bar.   Raising that bar in this  case is                                         -39-                                          39            not  necessary  to vindicate  the  vital  interests that  the            doctrine was  intended  to safeguard,  and  indeed  undercuts            those interests.                      This case does not  present the kind of exceptional            circumstances  that would  even permit  consideration  of the            defendants'  legislative  immunity  arguments, because  those            arguments  were  not raised  in  the  district  court.    Cf.                                                                      ___            Eastland v.  United States  Servicemen's Fund, 421  U.S. 491,            ________     ________________________________            510  n.17 (1975)  ("[T]he Speech  or Debate Clause  has never            been read so  broadly that legislators  are 'absolved of  the            responsibility of  filing a  motion  to dismiss.'"  (citation            omitted));  Powell  v.  McCormack,  395 U.S.  486,  505  n.25                        ______      _________            (1969).   Here,  the immunity doctrine  -- hardly  an obscure            legal  concept -- was never raised as a defense to liability,            even when the distinguished  trial court was solicitous about            minimizing   the  intrusion  of   the  litigation   into  the            functioning of  the state legislature.   Defendant Harwood is            himself an attorney and both defendants were ably represented            in  the district  court.   I see  no reason  not to  hold the            defendants to  their waivers.   See Singleton  v. Wulff,  428                                            ___ _________     _____            U.S. 106, 121 (1976)  (reversing court of appeals in  a civil            case for deciding issues not argued in the district court).                      In  reaching the immunity  issue, the majority sets            up   a  virtually   no-lose   proposition  for   legislators.            Legislators  are certainly cognizant of the public perception                                         -40-                                          40            that  raising an immunity defense is tantamount to a claim of            being above  the Constitution.   Thus, raising  a defense  of            legislative  immunity  at the  outset  of  litigation is  not            without its political costs.   The majority's approach, which            permits  the  defense to  be  raised  after trial,  virtually                                                  _____            eliminates  any incentive to raise  it sooner.   If the trial            were  to  produce  an unfavorable  outcome,  the  legislator-            defendant could simply  assert immunity  on appeal,  claiming            that  the  failure  to raise  the  defense  earlier  had been            inadvertent.  Because there rarely will be direct evidence to            counter such a claim of inadvertence, and because the defense            of absolute  legislative immunity will always  present a law-            based,  potentially  dispositive  question of  constitutional            magnitude,  a  court  of   appeals  applying  the  majority's            approach would almost  inevitably consider the defense,  even            though raised for the first time on appeal.                      Moreover, to the extent  that one of the rationales            underlying  legislative  immunity  is  to  prevent  vexatious            litigation  against legislators, that rationale is undermined            where  (as here)  the legislator-defendant  goes through  the            entire trial and  raises the  defense only on  appeal.   "The            purpose  of the  protection  afforded legislators  is not  to            forestall judicial review of legislative action but to insure            that  legislators are not distracted from  or hindered in the            performance of  their legislative tasks by  being called into                                         -41-                                         -41-            court to defend  their actions."   Powell, 395  U.S. at  505.                                               ______            Denials  of legislative  immunity are  immediately appealable            because the immunity is not simply a defense to liability but            is also an immunity from suit.  Helstoski v. Meanor, 442 U.S.                                            _________    ______            500, 508  (1979).  Appellate  courts are unable  to vindicate            that  interest where  defendants  wait until  after trial  to            raise the immunity  defense.  See  id.  There  thus may be  a                                          ___  ___            greater systemic  interest in  ensuring that the  interest is            raised early.                      Much  of  what  the  immunity  protects  cannot  be            remedied  here.   Because  the  defendants  never asserted  a            defense of  immunity, the action  was fully tried  before the            question  was ever  put to the  district court.   Legislators            have  already   testified.    Deciding  the   merits  of  the            constitutional  question  entails  no  additional  burden  or            inconvenience upon the  defendants.  The  need to ignore  the            defendants' waiver in order to  reach the immunity issue  is,            as a result, greatly reduced.17                                            ____________________            17.  Even if one could  overlook defendants' waiver, we could            not  reach the immunity issue absent a showing of plain error            by the  district court.  Cf.  United States v. Olano,  113 S.                                     ___  _____________    _____            Ct. 1770, 1776-78 (1993); United States v. Saccoccia, 58 F.3d                                      _____________    _________            754, 790 (1st Cir. 1995).  Plain error analysis does apply in            the civil context.   See,  e.g., Consolo v.  George, 58  F.3d                                 ___   ____  _______     ______            791,  793  (1st Cir.  1995)  (jury instructions  to  which no            objection lodged  subject only to plain  error review); Lewis                                                                    _____            v.  Kendrick, 944  F.2d 949,  953 (1st  Cir. 1991)  (district                ________            court's  failure to grant  qualified immunity reviewable only            for plain error where defense was not timely raised); Javelin                                                                  _______            Investment, S.A. v. Municipality of Ponce, 645 F.2d 92, 94-95            ________________    _____________________            (1st Cir. 1981) (same,  for a sufficiency-of-evidence claim).                                         -42-                                         -42-                      Even overlooking the defendants' waiver, however, I            believe that  their  claim of  absolute legislative  immunity            fails.  The  Supreme Court's case law  demonstrates that even            if a suit asserting individual rights could not be brought to            challenge  a  legislative act  per se,  it  is not  barred by                                           ___ __            legislative immunity  if it  merely seeks  prospective relief            against  a legislative employee for  his role in carrying out            or  enforcing the  directives of  that same  legislative act.            That is precisely what the plaintiffs seek here.                      There  is no  immunity  for practices  that  simply            relate to legislative  activities.  See Doe v.  McMillan, 412                                                ___ ___     ________            U.S.  306, 313  (1973)  ("Our cases  make perfectly  apparent            . . . that everything a [legislator] may regularly do is  not            a  legislative act  within the  protection of  the Speech  or            Debate Clause.");  United States  v. Brewster, 408  U.S. 501,                               _____________     ________            515  (1972)  ("In no  case has  this  Court ever  treated the            Clause as protecting all  conduct relating to the legislative                                              ________            process." (emphasis in  original; footnote omitted)); Powell,                                                                  ______            395 U.S. at 503  ("Legislative immunity does not,  of course,            bar all  judicial review  of legislative acts.").   Moreover,            "[t]hat [legislators] generally perform certain acts in their                                            ____________________            Whatever  difference of  opinion the question  of legislative            immunity  might  allow,  the  district court's  "failure"  to            afford such immunity to defendants sua sponte was not clearly                                               ___ ______            in error, and certainly  did not produce a  gross miscarriage            of  justice or  seriously affect  the fairness,  integrity or            public reputation  of the  judicial proceedings.   See Olano,                                                               ___ _____            113 S. Ct. at 1779.  There was no plain error.                                         -43-                                         -43-            official capacity as [legislators] does  not necessarily make            all such  acts  legislative in  nature."   Gravel  v.  United                                                       ______      ______            States,  408 U.S. 606, 625  (1972).  Rather,  as the majority            ______            agrees, the doctrine  of legislative immunity  protects "only            purely legislative  activities."  Brewster, 408  U.S. at 512;                                              ________            Chastain v.  Sundquist, 833 F.2d  311, 314  (D.C. Cir.  1987)            ________     _________            (quoting Brewster), cert. denied, 487 U.S. 1240 (1988).                     ________   ____________                      The basic protection of the doctrine of legislative            immunity  attaches   to   actual  "speech   or   debate"   by            legislators.  Gravel, 408 U.S. at 625.  The Supreme Court has                          ______            made clear that                      [i]nsofar  as  [legislative  immunity]  is                      construed to  reach  other  matters,  they                                                            ____                      must   be   an  integral   part   of   the                      __________________________________________                      deliberative  and  communicative processes                      __________________________________________                      by  which   [legislators]  participate  in                                                              __                      committee   and  House   proceedings  with                      ____________________________________                      respect to the  consideration and  passage                      or rejection  of proposed  legislation  or                      with  respect to other matters [within the                      legislature's               constitutional                      jurisdiction].            Hutchinson v. Proxmire, 443 U.S. 111, 126 (1979) (emphases in            __________    ________            original) (quoting Gravel,  408 U.S. at  625).  The  majority                               ______            does  not dispute this definition of the scope of legislative            immunity.                      It is important  to recognize  that the  plaintiffs            here seek only to enjoin Rule 45's enforcement.   In my view,                                               ___________            legislative immunity does not  reach enforcement of the House            Rule because such enforcement is not "an integral part of the                                         -44-                                         -44-            deliberative   and  communicative  processes"  of  the  state            legislature.                      Of course,  the regulation of the  admission of the            public  to the House's floor  has an important  impact on the                                                            ______            legislative process  -- that is  what this lawsuit  is about.            But  it belies  common  usage, I  believe,  to say  that  the            defendants' practices relating to  the admission or exclusion            of  classes of persons  from the  House floor  constitute "an            integral   part  of   the   deliberative  and   communicative            processes" of the legislature.  Certainly, such practices are            not  part and parcel of  the legislative process  in the same            fashion as are  the kinds  of legislative acts  to which  the            Supreme Court has  previously extended legislative  immunity:            e.g., voting for a resolution, Kilbourn v. Thompson, 103 U.S.            ____                           ________    ________            168,  204 (1881), making a speech on the floor, United States                                                            _____________            v. Johnson,  383 U.S. 169, 180  (1966), circulating documents               _______            to other  legislators,  McMillan, 412  U.S.  at 312,  or  the                                    ________            gathering  of information for a committee hearing, Dombrowski                                                               __________            v.  Eastland, 387  U.S. 82,  84 (1967)  (per curiam).18   See                ________                                              ___                                            ____________________            18.  An action challenging any  of these immunized activities            would  have required  proof, as  this case  does not,  of the            substance of a legislator's act  -- e.g., how the  legislator                                                ____            voted,  or  the  content  of  a  speech  or  the  content  of            communications to other legislators.  See Gravel, 408 U.S. at                                                  ___ ______            618-21  (drawing this  distinction); see  also  Brewster, 408                                                 ___  ____  ________            U.S. at 526 (holding that act of bribery  was not immune from            prosecution  if  government  did   not  need  to  prove  "how            [defendant]  spoke, how he debated, how he voted, or anything            he did in the chamber or in committee").                                         -45-                                         -45-            Brewster, 408 U.S.  at 516  ("In every case  thus far  before            ________            this Court, the Speech  or Debate Clause has been  limited to            an  act which was clearly a part of the legislative process."                              _________________________________________            (emphasis added)).                      It is  not enough,  as the majority  suggests, that            the   practice  challenged   here  "affects"   the  way   the            legislature  conducts   its  affairs  or  "colors   the  very            conditions  under  which  legislators"  do their  work.    In            Hutchinson  v. Proxmire,  the Supreme  Court, in  refusing to            __________     ________            extend legislative  immunity to certain statements  made by a            senator  in a  press release,  acknowledged that  a senator's            ability to  make such  statements was arguably  "essential to            the  functioning  of  the  Senate"  and  conceded  that  such            statements affected the legislative environment.  443 U.S. at            130, 131 ("We may assume that a Member's published statements            exert  some  influence on  other  votes in  the  Congress and            therefore  have   a  relationship  to   the  legislative  and            deliberative process.").   Yet,  the Court concluded  that no            legislative  immunity attached  to  such  statements.19    In            doing  so, it observed that  it had, in  the past, "carefully            distinguished  between  what  is  only 'related  to  the  due                                                    _____________________                                            ____________________            19.  Similarly, in Bond  v. Floyd, 385  U.S. 116 (1966),  the                               ____     _____            Supreme  Court allowed  a suit  to go forward  challenging on            First  Amendment  grounds  the  constitutionality  of certain            legislative resolutions preventing the seating of Julian Bond            in  the Georgia legislature that had  been passed in response            to  political   statements  by  Bond   that  had   apparently            displeased his fellow legislators.                                         -46-                                         -46-            functioning of the legislative process,' and what constitutes            ___________                                       ___________            the  legislative  process  entitled  to  immunity  under  the            _________________________            [Speech  or Debate]  Clause."   Id. at  131 (emphases  added;                                            ___            citation   omitted).     Here,  the   defendants'  challenged            practices, while  perhaps "related to the  due functioning of            the  legislative process,"  simply do  not "constitute[]  the            legislative  process"  in  the  sense  necessary  to  trigger            absolute legislative immunity.   Cf. United States v. McDade,                                             ___ _____________    ______            28  F.3d  283,  299  (3d  Cir.  1994)  (declining  to  extend            legislative   immunity  for   acts  which,   "although  [they            comprised]  a necessary  precondition for the  performance of            [legislative] acts,"  could not  be said  to be  "an integral            part   of   Congress's    deliberative   and    communicative            processes"), cert. denied, 115 S. Ct. 1312 (1995).                         ____________                      That the  defendants' challenged practices  are not            "legislative" in the sense  necessary to trigger immunity and            that  the  plaintiffs' claim  for  injunctive  relief is  not            barred -- most clearly as it names the House doorkeeper -- is            established by  a venerable line of  Supreme Court authority.            In Kilbourn v. Thompson, 103 U.S. 168 (1881), the Court found               ________    ________            that  members  of  the  U.S. House  of  Representatives  were            entitled to legislative immunity in a lawsuit arising from an            unconstitutional House  resolution  that had  authorized  the            arrest of  the plaintiff.   However, the Court  permitted the                                                            _________            suit  to go forward against the House's Sergeant at Arms, who                                         -47-                                         -47-            had merely executed the unconstitutional arrest warrant.  See                       ________                                       ___            id.  at 202.    As the  Supreme  Court later  summarized  the            ___            holding  of Kilbourn:  "That  the House  could with  impunity                        ________            order an unconstitutional  arrest afforded no  protection for            those who  made the arrest."   Gravel, 408 U.S. at  618.  The                                           ______            unconstitutional "resolution was subject to judicial review,"            the Court explained,  "insofar as its execution impinged on a            citizen's rights."  Id.                                ___                      Some ninety  years  after Kilbourn,  in  Powell  v.                                                ________       ______            McCormack, the Court reaffirmed the principle that a suit for            _________            injunctive relief brought  against a legislative  employee in            an  enforcement-type capacity  is not  barred  by legislative                                              ___            immunity.   395 U.S. at 504-05.   There, the  Court held that            the  defendant  congressmen  were  entitled   to  legislative            immunity  for  their unconstitutional  refusal  to  seat Adam            Clayton   Powell  as   a  Member   of  the   U.S.   House  of            Representatives.  See id.  at 506.  Applying the  teaching of                              ___ ___            Kilbourn,  the Court  went on  to hold  that the  doctrine of            ________            legislative immunity did not  bar a judicial determination of                                     ___            the  merits  of  plaintiffs' constitutional  claims,  to  the            extent   that  those   claims  were   asserted  against   the            legislative  employees  who had  merely been  responsible for            enforcing the  House's  resolution, namely,  the Sergeant  at            _________            Arms, the Clerk, and the Doorkeeper.  See id. at 504-06.  The                                                  ___ ___            Court added that those officials could not assert legislative                                         -48-                                         -48-            immunity  on  the ground  that they  had simply  been "acting            pursuant  to express  orders of  the House."   Id.  at 504.20                                                           ___            The  Court  in  Powell  thus "reasserted  judicial  power  to                            ______            determine  the validity  of legislative actions  impinging on            individual  rights"  in  an  action  for  prospective  relief            brought  against the  legislative functionaries  charged with            implementing   the   allegedly   unconstitutional   activity.            Gravel, 408 U.S. at 620.            ______                      The   Court  had   applied  similar   reasoning  in            Dombrowski  v. Eastland,  387  U.S. 82  (1967) (per  curiam),            __________     ________            decided shortly before Powell.  In that case, which arose out                                   ______            of an allegedly illegal raid, the Court sustained the defense            of  legislative immunity  with respect to  the Chairman  of a            subcommittee  of  the  U.S. Senate  Judiciary  Committee  for            issuing  subpoenas  to gather  information,  but  declined to            extend  immunity  to  the  subcommittee's  counsel,  who  had            allegedly participated  in the execution of  the illegal raid            to obtain the  same information.  See id.  at 84.  Dombrowski                                              ___ ___          __________            thus supports the principle  that a legislative employee sued            for  his role  in carrying  out  or executing  an (immunized)                                            ____________________            20.  I respectfully disagree,  therefore, with the majority's            suggestion  that the  legislative immunity  doctrine protects            any  legislative officials "who do no more than carry out the            will of  the body by enforcing  [Rule 45] as a  part of their            official  duties."    To  the extent  that  the  decision  in            Consumers   Union  of  United   States,  Inc.  v.  Periodical            _____________________________________________      __________            Correspondents' Ass'n, 515 F.2d 1341 (D.C. Cir. 1975), can be            _____________________            read  for a contrary  proposition, I would  decline to follow            it.                                         -49-                                         -49-            legislative directive may be  answerable to a private citizen            whose rights have  been violated.   See Gravel,  408 U.S.  at                                                ___ ______            619-20.                      More  recently,  in Supreme  Court  of Virginia  v.                                          ___________________________            Consumers  Union of  the United  States, Inc.,  446 U.S.  719            _____________________________________________            (1980),  the  Supreme  Court  was presented  with  an  action            brought under  42 U.S.C.    1983 asserting a  First Amendment            challenge  against certain  attorney disciplinary  rules that            had  been  enacted  by  the  Virginia  Supreme  Court.    The            plaintiffs sought declaratory  and injunctive relief,  naming            the  Virginia Court and  its Chief Justice  (among others) as            defendants.   The Supreme  Court concluded that  the Virginia            Court, in propounding the disciplinary rules, had acted in  a            legislative (not judicial) capacity.   The Virginia Court was            held  entitled  to  absolute  legislative immunity  for  acts            pertaining to the enactment  of the disciplinary rules, e.g.,                                                                    ____            refusing to amend the rules to comport with the Constitution.            See  id. at  733-34.   The  Supreme  Court further  observed,            ___  ___            however,  that  the  Virginia  Court  performed  not  only  a            legislative role with respect  to the disciplinary rules, but            also had enforcement authority.   See id. at 734.   The Court                     ___________              ___ ___            concluded  that to  the extent  that the  plaintiffs' section            1983  action sought prospective  relief against  the Virginia            Court   in  its   enforcement   capacity,  the   doctrine  of                              ___________            legislative immunity did not bar the suit.  Id. at 736 ("[W]e                                                        ___                                         -50-                                         -50-            believe  that  the  Virginia  Court  and  its  chief  justice            properly  were held liable  in their  enforcement capacities.            . . . For this reason the Virginia Court and its members were            proper defendants  in a  suit for declaratory  and injunctive            relief,  just as  other  enforcement  officers  and  agencies            were.").                                            ____________________            21.  Moreover, the defendants'  actions in restricting access                      The   Supreme   Court's   decisions  in   Kilbourn,                                                                ________            to the  floor and  lobbying can be  viewed as  administrative            (rather than legislative) in nature, and thus not entitled to            Dombrowski, Powell, and  Supreme Court of Virginia  establish            __________  ______       _________________________            immunity  on that  additional  ground.   Because immunity  is            defined by the functions it  serves, Forrester v. White,  484                                                 _________    _____            that the  doctrine of  legislative immunity  does  not bar  a            U.S.  219, 227  (1988), even  legislators themselves  are not            immune for actions taken  in an administrative capacity.   In            judicial  determination of a plaintiff's constitutional claim            Forrester, a  state court judge enjoyed  no judicial immunity            _________            for  the administrative  acts  of demoting  and dismissing  a            to the extent that the claim is one for injunctive relief and            probation officer.  Even though the acts "may have been quite            important in  providing the  necessary conditions of  a sound            is  asserted  against a  defendant  simply  for his  role  in            adjudicative  system," the decisions underlying the acts were            generic in nature, not intrinsically adjudicative or peculiar            enforcing  a  legislative directive  that  affects individual            _________            to the  judicial function.   See id.  at 229.   A "judge  who                                         ___ ___            hires or  fires a probation officer  [could not] meaningfully            rights.  See  Gravel, 408  U.S. at 618-21.   The  plaintiffs'                     ___  ______            be distinguished from a district attorney who hires and fires            assistant  district  attorneys,  or  indeed  from  any  other            action  here -- most clearly as it names the House doorkeeper            Executive Branch official who  is responsible for making such            employment  decisions."   Id.; see also  Negron-Gaztambide v.                                      ___  ________  _________________            -- comprises precisely  such a claim: the doorkeeper is being            Hernandez-Torres, 35 F.3d 25, 28 (1st Cir. 1994) (legislators            ________________            not protected  by legislative immunity for administrative act            sued  solely  for  his   role  in  enforcing  the  challenged            of  dismissing  librarian), cert.  denied,  115  S. Ct.  1098                                        _____________            (1995).            exclusion of  all but  government lobbyists from  lobbying on                      Under  this  functional  analysis,   the  defendant            doorkeeper's   acts   in   determining   whether   particular            the  House floor,  and the  claim seeks  only to  enjoin such            individuals were authorized to enter the House chamber are of            an  "administrative"  nature within  the  meaning  of Negron-                                                                  _______            enforcement.  The defendant doorkeeper is not distinguishable            Gaztambide.   See id.   These acts  constitute determinations            __________    ___ ___            concerning  admission and exclusion,  no different  in nature            in  any meaningful  way from  the doorkeeper  whose claim  of            than those that might be made by an official in the executive            branch  entrusted with  controlling  access to  a  Governor's            absolute legislative  immunity was  rejected in Powell.   See                                                            ______    ___            press conference or, indeed,  a doorkeeper standing outside a            privately-owned building.    The  doorkeeper's  acts  do  not            Powell, 395 U.S. at  504.  I would conclude,  therefore, that            ______            entail any peculiarly  legislative decisionmaking -- in  this            case, those  decisions were  already embodied in  the House's            the  defendant  doorkeeper  is  not entitled  to  assert  the            adoption  of  Rule  45.    The  acts  of  the  doorkeeper  in            administering Rule 45 to particular persons seeking access to            defense of  absolute  legislative  immunity,21  and  I  would            the   House   chamber   are   thus   not   legislative,   but            administrative and not entitled to absolute immunity.                                         -51-                                         -51-            accordingly proceed to a determination of the First Amendment            question presented.22                      Reaching the merits  of plaintiffs'  constitutional            claim, importantly,  does no injury to  the classic interests            protected by  the legislative immunity doctrine.   The common            law  immunity that  state  legislators enjoy  is "similar  in            origin and  rationale to that accorded  Congressmen under the            Speech  or Debate Clause."   Supreme  Court of  Virginia, 446                                         ___________________________            U.S.  at  731.    The actions  of  members  of  the  House in            speaking,  debating, or  voting on  matters before  the Rhode            Island   House  are  not  being  challenged.    There  is  no            infringement  on the  "fullest  liberty of  speech" of  House            members, nor does this  case raise the need to  protect House            members "from the resentment  of every one, however powerful,            to  whom the exercise of that  liberty may occasion offense."            Tenney  v.  Brandhove, 341  U.S.  367,  373 (1951)  (citation            ______      _________            omitted).                      The  legislative immunity doctrine is not meant for            the protection of the legislators for their own benefit, "but            to  support  the rights  of  the  people,  by enabling  their                                            ____________________            22.  As far  as the record  shows, the defendant  Speaker did            not participate  in the  exclusion of private  lobbyists from            the legislative floor.  There  is no need to decide,  at this            time,  whether,  if  the  Speaker did  participate  in  other            aspects of  Rule 45's  enforcement, he  would be  entitled to            legislative immunity in an  action brought against him solely            for  his  role  in  such  enforcement.    Relief against  the            doorkeeper's enforcement  of the Rule  may provide plaintiffs            with all the relief necessary.                                         -52-                                         -52-            representatives  to  execute the  functions  of  their office            without fear  of prosecutions,  civil or criminal."   Id.  at                                                                  __            373-74 (citation omitted); see also Brewster, 408 U.S. at 507                                       ________ ________            ("The immunities  of the  Speech  or Debate  Clause were  not            written  into the  Constitution  simply for  the personal  or            private benefit  of Members of  Congress, but to  protect the            integrity  of   the  legislative  process  by   insuring  the            independence  of  individual  legislators.").    Reaching the            merits of the constitutional question presented here poses no            threat  to  the  independence   of  the  Rhode  Island  state            legislators.23                      Historically,  the  privileges  of  the  Speech  or            Debate Clause emerged from a need to protect the  legislature            from executive  intimidation and  harassment.  See  Robert J.                                                           ___            Reinstein & Harvey A. Silverglate,  Legislative Privilege and                                                _________________________            the  Separation of  Powers, 86  Harv. L.  Rev.  1113, 1120-44            __________________________            (1973).  Indeed, the purpose underlying the  Speech or Debate            Clause, that is, to enable speech critical of the government,            also  underlies the  First  Amendment's  protection  of  free            speech.    Cf.  Akhil  R.  Amar,  The  Bill of  Rights  as  a                       ___                    ___________________________            Constitution, 100 Yale L.J.  1131, 1151 (1991).  It  would be            ____________            ironic  indeed  to  permit  the defendants  to  invoke  those                                            ____________________            23.  Davids  v. Akers, 549 F.2d 120 (9th Cir. 1977), does not                 ______     _____            support  the proposition that  the defendants'  practices are            immune from constitutional scrutiny.  The court there in fact            reached  the merits  and  scrutinized the  plaintiffs'  First            Amendment claims, but found them wanting.                                         -53-                                         -53-            immunities  to benefit  communications between  the executive            branch (government lobbyists) and the legislative  branch, to            the  exclusion  of  communication  from  groups  of   private            citizens.   Judicial illumination  of the immunity,  as James            Madison said, must be guided by "the reason and the necessity            of  the privilege."    Letter from  James  Madison to  Philip            Doddridge  (June 6, 1832), in 4 Letters and Other Writings of                                       __   _____________________________            James Madison 221 (1884).  That reason  and necessity dictate            _____________            that  this court not credit the immunity defense on the facts            of this case.                                   First Amendment                                   _______________                      Is the First Amendment violated by  the defendants'            practice  of admitting  government  lobbyists onto  the House            floor  to  lobby while  excluding those  not employed  by the            government?   The answer,  I believe, is  that the defendants            have violated the First Amendment.                        Several   interrelated    and   fundamental   First            Amendment  interests   are   offended  by   the   defendants'            practices.   The  defendants have  excluded  the  plaintiffs'            political speech and have done so in a discriminatory manner.            The defendants'  practices have  resulted  in viewpoint-  and            content-based  discrimination,  favoring government  speakers            and  government  viewpoints   and  excluding   non-government            speakers and non-government viewpoints.   The restrictions on            speech posed  by the practices  are severe in  their effects.                                         -54-                                         -54-            Defendants'   discriminatory   practices   also  permit   the            government  unchecked  power to  act  in  its self  interest,            rather than in the  interest of the citizens.   These effects            strike  at  the heart  of  the First  Amendment,  and subject            defendants'  practices to  the highest  level of  scrutiny, a            scrutiny  defendants  cannot  withstand.24   Those  practices            are  not  narrowly  tailored   to  meet  a  compelling  state            interest, and therefore fail to pass constitutional muster.                      The  parties have framed  the First Amendment issue            in  terms of  whether the  House Chamber  floor is  a "public            forum."     But   the   "public   forum"   doctrine,   itself            problematic,25 is  particularly ill-suited to this  case.  It                                            ____________________            24.  There  are  additional   reasons  to  apply   heightened            scrutiny.   In  footnote  4  of  United  States  v.  Carolene                                             ______________      ________            Products Co., 304 U.S. 144,  152 (1938), oft-quoted for other            ____________            language, the Court noted the possibility that:                      legislation    which   restricts    those                      political processes  which can ordinarily                      be  expected  to  bring about  repeal  of                      undesirable   legislation    [might]   be                      subjected   to  more   exacting  judicial                      scrutiny  under the  general prohibitions                      of the Fourteenth Amendment than are most                      other types of legislation.            The   defendants'  practices  are   analogous  to  just  such            restrictive  legislation.   See  John H.  Ely, Democracy  and                                        ___                ______________            Distrust 76-77 (1980).            ________            25.    At best,  the public forum doctrine is  an "analytical            shorthand  for the  principles that  have guided  the Court's            decisions."  Cornelius v. NAACP Legal Defense and Educational                         _________    ___________________________________            Fund,  Inc., 473  U.S. 788,  820 (Blackmun,  J., dissenting).            ___________            "Beyond  confusing  the issues,  an  excessive  focus on  the            public  character of  some  forums, coupled  with  inadequate            attention  to  the precise  details  of  the restrictions  on                                         -55-                                         -55-            is peculiar  to attempt to  fit the doctrine to  the floor of            the chamber  of a legislative body at work.  Indeed, the very            language of "public forum" masks the issues at stake.                      As recognized by  the district court,  the approach            taken   by   this  Court   in   AIDS   Action  Committee   of                                            _____________________________            Massachusetts,  Inc.  v.  Massachusetts   Bay  Transportation            ____________________      ___________________________________            Authority, 42 F.3d 1  (1994), is more  apt.  This court  held            _________            that where the government was the proprietor  of the property            it was inappropriate to  analyze under the "relatively murky"            public  forum doctrine  a discriminatory  government practice            affecting First  Amendment rights.   Id. at  9.  At  issue in                                                 ___            AIDS Action Committee was the MBTA's practice of refusing, on            _____________________            the  grounds  that its  policy was  not  to run  any sexually            suggestive advertisements, to  display condom  advertisements            in its subway and trolley cars, while it was at the same time            running sexually suggestive movie advertisements.  This court            analyzed  and  rejected  the  government's  claim  that   its            practices  were  viewpoint  neutral, finding  the  government            practice  gave  rise  to   an  impermissible  appearance   of            viewpoint   discrimination.       Because   this    viewpoint            discrimination disposed  of the case,  there was no  need for                                            ____________________            expression, can leave  speech inadequately protected  in some            cases, while unduly hampering  state and local authorities in            others."  Laurence H. Tribe, American Constitutional Law 992-                                         ___________________________            93  (2d  ed. 1988)  (footnotes omitted);  see also  Daniel A.                                                      ___ ____            Farber & John E. Nowak, The Misleading Nature of Public Forum                                    _____________________________________            Analysis:     Content   and   Context  in   First   Amendment            _____________________________________________________________            Adjudication, 70 Va. L. Rev. 1219 (1984).            ____________                                         -56-                                         -56-            the  court to determine whether the cars were a public forum.            For similar reasons, I do not use conventional "public forum"            terminology.                      The  discrimination  in  speech  practiced  by  the            defendant must be understood against those interests that the            First Amendment  has repeatedly  been recognized  as serving.            The  First Amendment  reflects a  distrust of  the government            making   judgments   about   what   speech   is   worthwhile,            particularly  where  political  speech  is  involved.26     A            central commitment of the First Amendment  is that "debate on            public  issues should be uninhibited, robust, and wide-open."            New York Times  Co. v.  Sullivan, 376 U.S.  254, 270  (1964).            ___________________     ________            "The  maintenance  of  the  opportunity  for  free  political            discussion to  the end that  government may be  responsive to                       __  ___ ___ ____  __________ ___ __  __________ __            the will of  the people and  that changes may be  obtained by            ___ ____ __  ___ ______            lawful means, an opportunity essential to the security of the            Republic, is  a fundamental principle  of our  constitutional            system."  Stromberg v.  California, 283 U.S. 359, 369  (1931)                      _________     __________                                            ____________________            26.  "An insistence that government's burden  is greatest for            regulating political  speech is based  on a sensible  view of            government's  incentives.    It   is  in  this  setting  that            government is most likely to be biased or to be acting on the            basis  of  illegitimate,  venal, or  partial  considerations.            Government is rightly distrusted when it is regulating speech            that might harm  its own  interests; and when  the speech  at            issue is  political, its own  interests are almost  always at            stake.  It follows that the premise of distrust of government            is strongest when politics is at issue.  And when the premise            of  distrust is  strongest,  the burden  of justification  is            highest."   Cass R.  Sunstein, Democracy and  the Problem  of                                           ______________________________            Free Speech 134 (1993).            ___________                                         -57-                                         -57-            (emphasis  added).     "'[T]here  is  practically   universal            agreement  that a major purpose of [the First] Amendment [is]            to protect the free discussion of governmental affairs' . . .            .  'For speech  concerning public affairs is more  than self-            expression; it  is the essence of  self-government.'"  Burson                                                                   ______            v. Freeman,  504  U.S.  191,  196 (1992)  (quoting  Mills  v.               _______                                          _____            Alabama, 384 U.S.  214, 218 (1966) and Garrison v. Louisiana,            _______                                ________    _________            379 U.S. 64, 74-75  (1964)).  Political expression is  at the            center of the rights  protected by the First Amendment.   See                                                                      ___            id.;  Robert  H.  Bork,  Neutral Principles  and  Some  First            ___                      ____________________________________            Amendment  Problems,  47 Ind.  L.J.  1,  29  (1971); Cass  R.            ___________________            Sunstein,  Free Speech  Now,  59 U.  Chi.  L. Rev.  255,  301                       ________________            (1992).                       The defendants' practices in excluding the voice of            private, but  not government, lobbyists from  the House floor            imposes  a severe burden on  political speech.  Lobbying aims            at  influencing  the votes  of  legislators;  it attempts  to            affect the outcome of  the political processes.  Such  speech            is "at the heart of the First Amendment's protection."  First                                                                    _____            National  Bank  of Boston  v.  Bellotti,  435  U.S. 765,  776            _________________________      ________            (1978).  More specifically,  lobbying involves the attempt by            groups  of  citizens  to  have  their  hired  representatives            persuade legislators to legislate  in ways that are favorable                                         -58-                                         -58-            to the interests of  those citizens.27  "In  a representative            democracy such as  this, these branches of government  act on            behalf of the  people and, to a very large  extent, the whole            concept  of representation  depends upon  the ability  of the            people to make their  wishes known to their representatives."            Eastern  Railroad Presidents  Conf. v.  Noerr Motor  Freight,            ___________________________________     _____________________            Inc., 365 U.S. 127, 137 (1961); see also  Meyer v. Grant, 486            ____                            ___ ____  _____    _____            U.S.  414, 421 (1988) ("[B]oth the expression of a desire for            political  change  and  a discussion  of  the  merits  of the            proposed  change" are  "core  political speech.").   Where  a            challenged  practice, as  here,  imposes a  severe burden  on            political expression,  courts must  review the practice  with                                            ____________________            27.  Lobbying may be  protected not only as speech,  but also            as  an  exercise  of the  right  to  petition.   That  right,            explicitly  embodied in the  First Amendment, encompasses the            right  of  citizens  to communicate  with  their  legislative            representatives.   See Eastern Railroad  Presidents Conf.  v.                               ___ __________________________________            Noerr Motor  Freight, Inc., 365 U.S. 127, 137 (1961) (stating            __________________________            that  the right  of  petition protects  "the  ability of  the            people to make their wishes known to their representatives").            As lobbying constitutes an  important means by which citizens            can collectively make their  wishes known to the legislature,            lobbying  itself may fall under  the coverage of the Petition            Clause.   See id. at  137-38; United States  v. Nofziger, 878                      ___ ___             _____________     ________            F.2d 442,  453 (D.C. Cir.) (reading  Supreme Court precedents            for the proposition that lobbying, "insofar as it constitutes            self-representation,"  is protected  by  the First  Amendment            right to petition),  cert. denied, 493 U.S.  1003 (1989); see                                 ____________                         ___            generally Amar, Bill of Rights, supra, at 1155-56 (suggesting            _________       ______________  _____            that  part of  the  purpose of  the  Petition Clause  was  to            guarantee  that  citizens would  have  a  means of  informing            representatives of their needs and concerns).                                         -59-                                         -59-            strict scrutiny.  Cf.  Burdick v. Takushi, 504 U.S.  428, 434                              ___  _______    _______            (1992).28                      The  private  lobbyist  restriction is  subject  to            strict  scrutiny  not   only  because  it   severely  burdens            political speech,  but also because it  discriminates both on            the basis of viewpoint and  content.  See Burson, 504 U.S. at                                                  ___ ______            197.        The    restriction   constitutes    content-based            discrimination  because  it  targets  a  particular  kind  of            speech.  It is also viewpoint-based discrimination because it            excludes  a  particular set  of messages.    The result  is a            speaker-based  ban  and   a  content-based  bar   that  gives            advantage   to    the   government's   viewpoint.29       The            discrimination   practiced   by   defendants   thus   permits            expression  of   the  "particular  message  favored   by  the            government"  and  stifles  all  other  speech.    See  Turner                                                              ___  ______            Broadcasting  System,  Inc. v.  FCC,  114 S.  Ct.  2445, 2458            ___________________________     ___            (1994);  id. at 2477  (O'Connor, J.,  concurring in  part and                     ___                                            ____________________            28.  Lobbying  is   not  subject  to  a   lower  standard  of            protection  even  if the  hired representatives  do it  for a            profit.  See Board of Trustees  of the State Univ. of N.Y. v.                     ___ _____________________________________________            Fox, 492 U.S. 469, 482 (1989).            ___            29.  That the  non-governmental viewpoint  may in fact  be an            entire  class  of  varying   viewpoints  does  not  make  the            restriction   any  the  less  viewpoint  discrimination.  See                                                                      ___            Rosenberger v. Rector and  Visitors of the Univ. of  Va., 115            ___________    _________________________________________            S.  Ct.  2510,  2518  (1995)  (rejecting  argument  that  "no            viewpoint  discrimination  occurs  because   the  [challenged            rules] discriminate  against an entire class  of viewpoints",            and saying that the "declaration that debate is not skewed so            long as multiple voices are silenced is simply wrong").                                         -60-                                         -60-            dissenting in part) ("The First Amendment does more than just            bar government from intentionally suppressing speech of which            it disapproves.   It also generally  prohibits the government            from  excepting  certain  kinds  of  speech  from  regulation            because it thinks the speech is especially valuable.").                      The   defendants'   practices   thus    cannot   be            constitutional unless they are narrowly tailored to achieve a            compelling state interest. Id. at 2467 ("[S]peaker-based laws                                       ___            demand strict  scrutiny  when they  reflect the  Government's            preference  for the  substance of  what the  favored speakers            have to say (or aversion to what the disfavored speakers have            to  say).");  First Nat'l  Bank of  Boston,  435 U.S.  at 785                          ____________________________            (First  Amendment  forbids  government  from  "dictating  the            subjects about which  persons may speak and  the speakers who            may  address  a public  issue.").    The government  lobbyist            preference as applied here fails that test.                      The  dangers  of  the  defendants'   practices  are            plain.30  By simply  excluding all voices save the  voices of            government lobbyists, the government could easily                                            ____________________            30.  In  the franchise  cases, corollary  concerns about  the            representative nature of government  led the Supreme Court to            invalidate  laws which  resulted in  groups of  persons being            frozen  out of the decision  process.  Reynolds  v. Sims, 377                                                   ________     ____            U.S.  533 (1964);  Harper v.  Virginia Bd. of  Elections, 383                               ______     __________________________            U.S.  663 (1966);  Carrington  v. Rash,  380  U.S. 89  (1965)                               __________     ____            (invalidating Texas  statute  denying franchise  to those  in            military who  moved into the  state where Texas  attempted to            justify  the  statute  by  arguing  military  personnel might            otherwise start influencing elections).                                         -61-                                         -61-                      suppress  support for a minority party or                      an unpopular cause, or  . . . exclude the                      expression of certain points of view from                      the marketplace of ideas.            Members  of the City  Council v.  Taxpayers for  Vincent, 466            _____________________________     ______________________            U.S.  789,  804  (1984).    These  effects  are  "so  plainly            illegitimate  that  they  would  immediately  invalidate  the            rule."    Id.   "[Rhode Island]  has no  .  . .  authority to                      ___            license one  side of [the]  debate to fight  freestyle, while            requiring the  other to follow Marquis  of Queensbury Rules."            R.A.V.  v. City  of St. Paul,  Minn., 112  S. Ct.  2538, 2548            ______     _________________________            (1992).                        Nor is  this risk  hypothetical.  The  Rhode Island            House is  singular  in the  lack of  opportunity for  private            citizens  to  have   direct,  effective  communications  with            legislators.    The  ability  to communicate  directly  is  a            considerable advantage.  The situation created by the private            lobbyist ban is that akin to a monopoly over a single channel            of communication,  where the government has  discriminated in            providing  access to  that  channel and  also determined  the            content of what flows through the channel.                        Against   this   panoply  of   dangers31   must  be                                            ____________________            31.  Defendants' argument  poses yet  other dangers too.   If            the   legislature  gets  information  from  nowhere  but  the            executive   branch,   the   legislature's  ability   to   act            independently,  and thus  to be  a check  and balance  to the            executive  is  undercut.     This  corollary  danger  of  the            undercutting  of the separation of powers  at the state level            is  keenly  illustrated by  the  amicus  brief  filed by  the            executive   branch,   urging   strongly   its   interest   in                                         -62-                                         -62-            measured  the interests  attributed to  the defendants.   The            majority  finds, in the immunity analysis, that there are two            such interests32 and that the interests would pass a rational            basis  test, at least for determining whether to carve out an            exception to the immunity it  would grant.  Without accepting            the  premise  that  the   only  exceptions  to  immunity  are            irrational legislative  acts, neither  of those  interests is            sufficient  to  withstand  strict  scrutiny.33   Indeed,  the                                            ____________________            communicating  with   the  legislature  and   supporting  the            exclusion of private voices.            32.  To  the extent  that  the House  Rule  on its  face  was            justified  as an effort to maintain decorum and control noise            to a level which did not interfere with the members work, the            record shows  instances in which government  lobbyists on the                                             __________            floor were objected to  by members as causing problems.   The            defendants  accordingly   do   not  try   to  justify   their            discriminatory distinction on such grounds.            33.  Defendants'  practice  does  not   even  meet  the  less            rigorous  test   of  intermediate  scrutiny.     Intermediate            scrutiny of restrictions  has traditionally  been applied  to            commercial  speech that  concerns  unlawful  activity  or  is            misleading, see  Florida Bar v. Went For It, Inc., 115 S. Ct.                        ___  ___________    _________________            2371, 2375  (1995), and to content-neutral  restrictions that            impose   an  incidental   burden   on  speech,   see   Turner                                                             ___   ______            Broadcasting, 114 S. Ct. at 2469.  The test has three related            ____________            prongs: first,  the  government  must  assert  a  substantial            interest in support of the regulation; second, the government            must demonstrate that the restriction directly and materially            advances  that interest;  and third,  the regulation  must be            "narrowly drawn."   Florida Bar,  115 S.  Ct. at  2376.   The                                ___________            government's asserted interest in having government lobbyists            on  the floor  of  the House,  to  the exclusion  of  private            lobbyists, is  to have  them  provide information.   But  the            government has  not shown  why the  interest  in having  only            government provide  information, and  not private groups,  is            "substantial."   Relatedly, the  restriction is not "narrowly            tailored" to  meet the information provision  goal because it            is overbroad and serves  to exclude valuable information that            private lobbyists might provide.                                           -63-                                         -63-            defendants' bedrock argument is different again, and it, too,            is insufficient.                      The   majority   credits   reasons  of   bolstering            legislative independence and  of having government  lobbyists            act to provide information.  But legislative independence was            proffered as a reason for Rule 45 on its face, which excludes            all lobbyists, and not  to the distinction between government            and non-government lobbyists.34                      Defendants  argue  that allowing  only governmental            lobbyists access to the  floor of the legislature  serves the            goal of allowing legislators to receive valuable information.            Defendants,   however,   have  established   no  demonstrable            interest in receiving information  from the government to the            exclusion of private sources.  The state's purported interest            in limiting the information available to legislators to those                                            ____________________            34.  A goal  of legislative independence is quite legitimate.            But the interest distinctively served by the private lobbyist            restriction  is to  display to  the public  the legislature's            special hostility  towards the private  interest groups  that            attempt to influence their  votes. "The politicians of [Rhode            Island] are  entitled to  express that  hostility --  but not            through  the  means  of  imposing   unique  limitations  upon            speakers who (however benightedly) disagree."  R.A.V., 112 S.                                                           ______            Ct.  at 2550.   "The  point of  the First  Amendment is  that            majority preferences must be  expressed in some fashion other            than  silencing speech on the basis  of its content."  Id. at                                                                   ___            2548.  "[T]he First Amendment as we understand it today rests            on  the  premise that  it  is government  power,  rather than            private power,  that is the  main threat to  free expression;            and  as a  consequence,  the  Amendment  imposes  substantial            limitations on the Government even when it is trying to serve            concededly praiseworthy  goals." Turner Broadcasting,  114 S.                                             ___________________            Ct.  at 2480 (O'Connor, J., concurring in part and dissenting            in part).                                         -64-                                         -64-            sources  controlled   by  its  own  interests   is  hardly  a            compelling  one.35   "A State's  claim  that it  is enhancing            the  ability  of its  citizenry  to  make wise  decisions  by            restricting the flow  of information to  them must be  viewed            with some skepticism. . . . '[I]t is often true that the best            means  to that end is  to open the  channels of communication            rather than to close them.'" Anderson v. Celebrezze, 460 U.S.                                         ________    __________            780, 798 (1983) (quoting  Virginia Pharmacy Board v. Virginia                                      _______________________    ________            Consumer Council, 425 U.S. 748, 770 (1976)).            ________________                      Further,  the private  lobbyist restriction  is not            narrowly   tailored  to  serve   the  legislature's  asserted            interest in receiving information.  Simon & Schuster, Inc. v.                                                ______________________            Members of the New York  State Crime Victims Bd., 112  S. Ct.            ________________________________________________                                            ____________________            35.  Defendants  attempt  to  liken  their  private  lobbying            restriction to  the restrictions on lobbying  imposed by Rule            XXXII  of  the   United  States  House  of   Representatives.            Defendants'   analogy,  however,   works  against   them  and            demonstrates  that  there is  no  "compelling"  need to  give            government  lobbyists  access to  the  floor  to lobby  while            excluding others.  Unlike the defendants' practices, the U.S.            House  of  Representatives  Rule does  not  allow  government            lobbyists to  lobby while excluding private  lobbyists.  Rule            XXXII  is  neutral and  excludes all  lobbyists.   Even those            normally  afforded the courtesy of admission  to the floor --            former Members of the House, former  Parliamentarians, former            elected officers,  and former  elected minority  employees of            the  House  --   are  denied  admission  if   they  or  their            organizations have any interest  in matters before the House.            Similarly, staff  of a Member are not allowed to lobby on the            occasions  they are admitted to  the House.   That the United            States House of Representatives has chosen neutrality and not            to   grant  preference  to   the  government   lobbyists  and            information providers (if there is any distinction) undercuts            any argument by  defendants that they have a  compelling need            to give preference to the government.                                         -65-                                         -65-            501,  511 n.** (1991).  In this case the restriction excludes            valuable information  from the  legislative purview.   As the            majority points  out, lobbying groups  have vastly  different            interests  and  perspectives.     Access to  such  varied and            independent  sources of  information, far  from  impeding the            legislature's access to  useful information, surely functions            to  increase both the quality  and the quantity  of the total            set of information available.                         The provision of  information from executive branch            agencies to members of  the legislature is a  very legitimate            interest of  government.   The majority suggests  there is  a            distinction between mere  information providing and lobbying,            but that  distinction is  contradicted  by the  record.   The            factual findings  of the district  court leave no  doubt that            the court considered the contention that government lobbyists            were engaging in mere "information-providing" and rejected it            as a factual matter.                        Even if  the distinction were tenable  on the facts            here, as it is not, it does not provide refuge from the First            Amendment.     There  is  plainly  value  to  the  speech  by            government lobbyists, whether it  be heavy-handed lobbying or            more lightly  dexterous provision of information.   See Block                                                                ___ _____            v. Meese,  793 F.2d 1303,  1312-14 (D.C. Cir.)  (Scalia, J.),               _____            cert.  denied,  478  U.S. 1021  (1986).    But  the value  of            _____________            government speech is  not the  point.  Rather,  the point  is                                         -66-                                         -66-            that  the  government has  permitted  itself  to speak  while            prohibiting non-government speech.                        Speech  from   non-government  speakers,  including            lobbyists, is  also valuable.  Indeed, while  lobbying may be            subject to  registration and  disclosure,36 no case  has ever            suggested that lobbying, including  its information-gathering            and providing component,  could be banned entirely.  But that            issue need not be reached here, for what is clear is that the            government must keep the playing field level.37                      Moreover,  even if  there  were greater  reason  to            credit  the distinction  between "information  providing" and            "lobbying," First Amendment "due  process" type issues  would            still  preclude reliance  on the  distinction to  justify the            restriction  of  First  Amendment   rights.    See  Henry  P.                                                           ___            Monaghan,  First Amendment  "Due Process",  83 Harv.  L. Rev.                       ______________________________                                            ____________________            36.  This  case  does not  involve  any  issue of  government            subsidy, creation of a government  program, or of the taxable            status of organizations involved in  lobbying.  Cf. Regan  v.                                                            ___ _____            Taxation With Representation, 461 U.S. 540 (1983).            ____________________________            37.   It  is recognized  in the political  science literature            that  much  of  what modern  day  lobbyists  do involves  the            gathering and  provision of information to  legislators.  Cf.                                                                      ___            Edward  O. Laumann et al., Washington Lawyers and Others: The                                       __________________________________            Structure of Washington Representation, 37 Stan. L. Rev. 465,            ______________________________________            495 (1985);  James Q. Wilson,  Political Organizations xix-xx                                           _______________________            (1995); Jeffrey S. Banks &  Barry R. Weingast, The  Political                                                           ______________            Control of Bureaucracies under Asymmetric Information, 36 Am.            _____________________________________________________            J.  Pol. Sci.  509 (1992).   Political scientists  have found            that  lobbyists' primary strategy  in influencing legislators            is to  provide information to counteract  the similar efforts            of other  groups, not  to achieve influence  through pressure            tactics.     See  David   Austen-Smith  &  John   R.  Wright,                         ___            Counteractive Lobbying, 38 Am. J. Pol. Sci. 25 (1994).            ______________________                                         -67-                                         -67-            518,  519  (1970) ("If  the  Constitution  requires elaborate            procedural  safeguards in the  obscenity area,  a fortiori it            should  require  equivalent  procedural protection  when  the            speech involved - for  example, political speech - implicates            more central first amendment concerns.").  Even if there were            a  discernible distinction,  the "difference  between factual            statement and advocacy  may turn upon the debatability of the            facts described as true, or the pertinency of facts omitted."            Block, 793 F.2d at  1313.  The distinction between  providing            _____            information and acting for the purpose of "influencing in any            manner the  passage  of  legislation"  is  exceedingly  fine.            Here, legislators  testified that "information"  provided did            in  fact influence  them  on  how to  vote.   The  House  has            recognized that information may influence  votes.  Rule 45 on            its face provides that "no person . . . shall either directly                                                                 ________            or indirectly" engage in the practice of lobbying.  The House            _____________            has  thus  drawn  the  line to  preclude  any  activity, even            indirect, to influence votes.   The First Amendment puts  the            burden on the  government to finely  tailor its practices  to            permissible goals,  and no  such fine tailoring  was done  by            defendants' practices here.  See  Rubin v. Coors Brewing Co.,                                         ___  _____    _________________            115 S. Ct. 1585, 1593 (1995).                      The   real  argument   that  the   defendants  have            articulated  to justify  their  actions is  their claim  that            government   lobbyists  represent   the  people   while  non-                                         -68-                                         -68-            government lobbyists do not.  Accordingly, they say, there is            no  cause to worry.   That is an  inversion of constitutional            values.  While there may be value to the government voice, it            cannot be the only  voice.  To permit that to be  so would be            to stifle discussion.  See Buckley  v. Valeo, 424 U.S. 1,  14                                   ___ _______     _____            (1976) ("Discussion  of public issues  . . .[is]  integral to            the operation of  the system of government established by our            Constitution.    The  First  Amendment affords  the  broadest            protection to  such political expression in  order 'to assure            [the] unfettered interchange of  ideas for the bringing about            of  political and  social  changes desired  by the  people.'"            (citing Roth v. United States, 354 U.S. 476 (1957))).                    ____    _____________                      There  is  another danger,  and  that  is that  the            government's voice will not  truly represent the interests of            the  public.38    Government should  theoretically  represent                                            ____________________            38.  Defendants  express a legitimate concern that government            may  be captured by "special interests."  Apart from the fact            that  the government  itself  is frequently  its own  special            interest group,  the solution to the problem  of a government            captured by "special interests"  would hardly be to have  the            government speak only to itself.                      Moreover, many of  the plaintiff groups may  hardly            be  characterized  as  the   centers  of  wealth,  power  and            privilege.  Citizens,  who themselves may not be  affluent or            powerful, band  together in  groups to lobby  the government,            whether  the groups be, to  give but two  examples, the Rhode            Island State  Right  To Life  Committee, Inc.,  or the  local            chapter of the ACLU.  These groups may be thought to be a way            to avoid the capturing  of government by "special interests."            Defendants' practices may thus  thrust them headlong into the            dangers  they profess to wish to avoid.  Central to effecting            a system  of democratic  self-governance is  enabling private            interests to be able  to act in concert.   Without collective            action it  may be  impossible to alter  the status quo.   See                                                                      ___                                         -69-                                         -69-            the  people  and not  represent itself.   Theory  and reality            often depart.  The government  is not always a mirror  of the            people.    Government  employees  today  are  recognized   as            constituting their own interest group.  See E. Nordlinger, On                                                    ___                __            the Autonomy of the Democratic State (1981).            ____________________________________                      The  Framers  had  a  fear  that,  once  in  power,            legislators had an  obvious incentive to  use "that power  to            perpetuate  themselves or their  ilk in  office."   U.S. Term                                                                _________            Limits,  Inc. v.  Thornton, 115  S. Ct. 1842,  1911-12 (1995)            _____________     ________            (Thomas, J., dissenting) (pointing out numerous instances  of            modern day legislation and rulemaking that produce the effect            of perpetuating incumbents in office).  T h e   F r a m e r s            recognized this would happen and intended the First Amendment            to act as  a check.  James Madison identified  the problem of            government acting  in its  self-interest, in contrast  to the            interests of those it  purported to represent, as one  of the            two   fundamental  problems   of   the  republican   form  of            government.39  "It is  of great importance in a  republic not                                            ____________________            Sunstein, Democracy and the Problem of Free Speech, supra, at                      ________________________________________  _____            245-46.            39.  In a seminal immunity case, Justice Black recognized                      Unfortunately,    it    is   true    that                      legislative  assemblies,  born to  defend                      the liberty of the people,  have at times                      violated their sacred  trusts and  become                      the  instruments of  oppression.  .  .  .                      Those  who  cherish  freedom  [under  the                      First  Amendment] here  would do  well to                      remember  that  this freedom  cannot long                                         -70-                                         -70-            only  to  guard the  society  against the  oppression  of the                  _______________________________________________________            rulers,  but  to  guard  one  part  of  society  against  the            ______            injustice of the other part."   The Federalist No. 51, at 161                                            _____________________            (James  Madison) (Roy  P.  Fairfield 2d  ed. 1981)  (emphasis            added).  Madison feared that government might choose to serve            itself instead of the citizens, saying:                      In framing  a government  which is  to be                      administered by  men over men,  the great                      difficulty lies in this:   you must first                      enable  the  government  to  control  the                      governed; and in the next place oblige it                      to control  itself.  A dependence  on the                      people  is, no doubt, the primary control                      on government; but experience  has taught                      mankind   the   necessity  of   auxiliary                      precautions.            Id. at  160; see  also Amar, The  Bill of  Rights, supra,  at            ___          ___  ____       ____________________  _____            1132-33.   Central  among  those "auxiliary  precautions"  in            obliging  the government to control itself from self-interest            and self-dealing are the  protections afforded to citizens by                                            ____________________                      survive the legislative  snuffing out  of                      freedom . . . to speak.            Tenney v. Brandhove, 341 U.S.  367, 380-81 (1951) (Black, J.,            ______    _________            concurring).                      Justice Black echoed concerns voiced earlier by one            of the Framers of the Constitution and advocates for adoption            of  the  Bill of  Rights:   "No  legislative  act, therefore,            Contrary to the  Constitution, can  be valid.   To deny  this            would be  to affirm  . . .  that the  representatives of  the            people  are   superior  to  the  people   themselves."    The                                                                      ___            Federalist  No.  78,  at  228 (Alexander  Hamilton)  (Roy  P.            ___________________            Fairfield 2d ed. 1981) (reply to "Brutus").                                                      -71-                                         -71-            the  First  Amendment.    Defendants'  actions  violate  this            essential purpose of the First Amendment.                      Accordingly, I would affirm the declaration by  the            district  court  that the  practices  of  the defendants  are            unconstitutional.40   In my view, the  defendants must either            adhere to the House  Rule and exclude all from its  floor who            speak  to influence its vote  or the House  must equally open            its floor,  and  not prefer  the  government's voice.    That            choice  belongs to  the House.   Under the  Constitution, the            choice of  preferring the government voice  and excluding the            non-government voices does not.                                            ____________________            40.  The injunction entered by the District Court against the            House, which was not a party to the suit, was in error.                                         -72-                                         -72-
