The speech and debate clause, which appears in Article 1, section 6, of the U.S. Constitution, was written before the First Amendment and has a more limited scope.

The clause, whose inclusion reflected the development in England of an independent Parliament, states that “for any Speech or Debate in either House, they [members] shall not be questioned in any other Place.” It follows a provision, now largely moot, that prevents the arrest, for civil cases, of members traveling to or from sessions of Congress.

Purpose of speech and debate clause is to protect Congress members from lawsuits over what they say

The general purpose of the speech and debate clause is to protect members of Congress from having to worry that anything they say in the course of legislative activities will implicate them in a lawsuit.

In United States v. Brewster, 408 U.S. 502 (1972), the Court distinguished between “purely legislative activities,” which the Speech and Debate Clause protected, and merely political activities, which it did not. In Gravel v. United States (1972), the Supreme Court extended the speech and debate clause to protect congressional aides, described as “alter egos,” for work in connection with such speeches, but limited the privilege to “legislative activity.”

It refused to extend the privilege to the subsequent publication of materials read into congressional debates — in this case the Pentagon Papers.

Supreme Court allowed defamation suit against senator for newsletter comments

In Hutchinson v. Proxmire (1979), the Court permitted a defamation suit against a senator for derogatory comments made in a newsletter and in forums other than the Senate floor.

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U.S. Sen. Bob Menendez argued the speech and debate shielded him from prosecution on bribery and fraud charges related to gifts and campaign donations he accepted, saying the clause offered broad protection to members of Congress for activities undertaken as lawmakers. But the lower courts did not agree with is arguments and the Supreme Court declined to review the case, leaving in place the lower court rulings. (AP Photo/Julio Cortez, used with permission from The Associated Press.)

In Office of Senator Dayton v. Hanson (2007), the Court ruled that lower courts did not have jurisdiction in a claim against a U.S. senator’s office by a former employee. The senator’s office had sought immunity under the speech and debate clause. 

U.S. Senator Robert “Bob” Menendez from New Jersey recently sought to use the speech and debate clause to shield himself from allegations of bribery and public corruption.  However, lower courts have ruled that his lobbying activities on behalf of particular clients are not protected, and the Supreme Court decided not to review the case.

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