

                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 &amp; 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 &amp; 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. &amp; 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 &amp; 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 &amp; 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 &amp; 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 &amp;  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  &amp;  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-
