Doe v. McMillan

LOCATION: Allegheny County District Court

DOCKET NO.: 71-6356
DECIDED BY: Burger Court (1972-1975)
LOWER COURT: United States Court of Appeals for the District of Columbia Circuit

CITATION: 412 US 306 (1973)
ARGUED: Dec 13, 1972
DECIDED: May 29, 1973

Fred M. Vinson, Jr. - for Legislative respondents
David P. Sutton - for the District of Columbia respondents
Michael J. Valder -
Michael Valder - for petitioners
William C. Cramer - for Legislative respondents

Facts of the case


Media for Doe v. McMillan

Audio Transcription for Oral Argument - December 13, 1972 in Doe v. McMillan

Warren E. Burger:

Mr. Valder.

Michael J. Valder:

Thank You, Your Honor.

Mr. Chief Justice and may it please the Court.

My name is Michael Valder.

With me are Mrs. Jean Camper Cahn and Mr. Dan Bowling.

On behalf of the petitioners, we request this Court to reverse the judgment of the lower courts and to remand this cause for consideration of preliminary injunctive relief and trial on the merits.

But more important, than a reversal and remand, is our request that you declare the law which will govern this case.

The issues presented compel, we believe, several declarations by this Court.

First and perhaps, more importantly is the declaration that the federal courts are open for the business of adjudicating petitioners claims based on the Constitution and the Civil Rights Laws of the United States.

Secondly, a declaration that the Speech or Debate Clause protects no one, Congressman included from defending a suit for violation of constitutional rights to privacy.

The decision in the Gravel case we believe indicates that Speech or Debate Clause immunity extends only to valid legislative acts.

Gravel expressly --

Warren E. Burger:

But the speech on the floor of the House that was libelous per se invading the privacy or some person in a very gross way, is there any remedy for that?

Michael J. Valder:

The cases don’t indicate so, Your Honor.

We’re not faced with that here however.

Here it is --

Warren E. Burger:

[Voice Overlap] interesting on a right of privacy claim and I am assuming now the grossest kind of libel you could imagine on the floor of the House and the speech by a member.

Michael J. Valder:

I suspect that that case would be taken to Court and this Court would be asked.

Warren E. Burger:

And having to decide that some of them been taken to Court?

Michael J. Valder:

I believe so Your Honor and the speeches on the floor have been held to be immune under the Speech or Debate Clause. But here as in Gravel, we’re dealing with activity not on the floor.

We are dealing with subsidiary activity in committee by committee staff, by investigators and it seems to us that, your teaching in Gravel that invasions of citizen privacy or illegal or unconstitutional actions by legislators or their staff are not immune under the Speech or Debate Clause.

I believe the technical language in your decision in Gravel in Mr. Justice White’s decision was that the Speech or Debate Clause should not be extended to protect the illegal or unconstitutional actions beyond those which would prevent executive control of legislative speech debate or legislative activity.

Byron R. White:

Can I ask that -- let’s assume that the group of publications had gone -- been in the congressional context or just a newspaper or an author or a magazine and simply gone around pickup the same information from the same sources and had published?

Now what right of your clients would have been infringed?

Michael J. Valder:

Their constitutional right to privacy.

Byron R. White:

Now, are you claiming are there anything inaccurate about any of the statements?

Michael J. Valder:

Absolutely, Your Honor that they were inaccurate.

We never had a chance to correct those inaccuracies.

We never had noticed that this publication was --

Byron R. White:

Are you saying they were libelous?