Maine Representative Laurel Libby was hardly a household name before this month. But the avowedly conservative Republican has become something of a national cause celebre, after the Democratic-run Maine House of Representatives took the drastic step of stripping her of her vote and forbidding her from speaking on the House floor — all because of an ill-advised but First Amendment-protected social media post.
There is no need to continue making a free speech martyr of Libby. A basic respect for democracy argues for letting the voters in her district, not the House leadership, be the ones to decide whether her actions disqualify her.
The controversy stems from Libby’s decision to post a picture of a transgender high school athlete standing on a podium after winning a recent girl’s track event. Libby, who opposes allowing transgender athletes to compete in girls’ sports, posted it to bolster a political argument.
It was unnecessary for Libby to make that argument by singling out an individual — especially when that individual is a minor who had no role in making the rules that Libby opposes. But it was completely legitimate for her to express a view on what is inarguably a controversial political question.
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On Feb. 25 in a party-line, 75-70, vote led by Speaker Ryan Fecteau, the House voted to censure Libby for the post. But this wasn’t just a slap on the wrist: They also took away her ability to speak, vote, and represent her constituents, demanding she apologize before her voting rights would be restored. Last week, Libby and a handful of her constituents sued Fecteau and the clerk, Robert Hunt, seeking reinstatement.
But Libby said she’s willing to drop the suit if Fecteau drops the punishment. He should take her up on the deal.
A censure is one thing when it’s just a symbolic statement of disapproval. But preventing an elected representative from voting should be a last resort for very serious misbehavior, and no legislature should make that decision lightly. Representative Al Green, the Texas Democrat who heckled President Trump at the State of the Union address, was recently censured for violating the decorum of the House. Imagine how Democrats would react if the House Republican leadership tried to prevent him from voting, too.
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The Maine House resolution to censure Libby stated that she had violated the Legislature’s code of ethics. But those rules are not a model of clarity, calling for legislators to promote the “security, safety, health, prosperity, respect and general well-being” of their constituents and to be “ever mindful of the ordinary citizen who might otherwise be unrepresented.”
Such broad language can too easily be used to justify punishing a lawmaker in the minority party for saying almost anything that the majority party dislikes, even if that speech is protected by the First Amendment. In our polarized times, Democrats should be concerned that a Republican majority could apply similar sanctions to them.
If it’s left to the courts to decide Libby’s fate, Supreme Court precedent would seem to be on her side. In Bond v. Floyd, the Supreme Court ruled that even though a state can “impose all oath requirements on legislators, it cannot limit their capacity to express views on local or national policy.” The court also found that the state can’t apply a First Amendment standard “stricter than that applicable to a private citizen” — and nothing Libby did in her post is remotely close to a crime that would get a private citizen in trouble.
Moreover, requiring her to apologize for expressing a political view in a way the majority found offensive is compelling her to speak, something courts also tend to frown on.
If Democrats really want to hold Libby accountable without appearing hostile to free speech, they should forcefully challenge her in next year’s election and let voters decide if someone with her archly conservative views is fit to represent their district. They could argue that Libby’s decision to post the picture of the minor was so harmful that she’s not fit to serve in the Legislature. And voters might agree.
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But for now, Libby’s giving Democrats an out. They should take it.
Editorials represent the views of the Boston Globe Editorial Board. Follow us @GlobeOpinion.
