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Culture War Roundup for the week of May 19, 2025

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Back in February, Maine state representative Laurel Libby got censured by the states House of Representatives for posting a tweet featuring state track-and-field champions photos with the same kid that won the recent women's pole vault also placing fifth in men's poll vault two years prior. (Tweet on page 9 of this pdf.)

The censure (passed narrowly along party lines) is based on the notion that Libby is endangering the minor athlete with all this publicity, and that she must apologize. She refused to do so. The rules of the House of Representatives say that "is guilty of a breach of any of the rules and orders of the House … may not be allowed to vote or speak, unless by way of excuse for the breach, until the member has made satisfaction." So until Libby apologizes, she is barred from speaking on the floor, and barred from voting.

Libby sued in federal court for 1st Amendment violation. Meanwhile, she has been seeking emergency relief to restore her voting rights (and thus also the representation rights of her constituents). Both the district court and the First Circuit court of appeals have declined to grant her the emergency relief:

finding that legislative immunity precluded it because her sanction by Maine's House speaker was a legislative act, and the disenfranchisement of her district's voters could not overcome that immunity.

Today, the US Supreme Court granted the emergency relief.

The tweet in question is on an important current political topic made by an elected representative, is inline with her platform (which is likely why she got elected in the first place), and has only publicly available information. The censure bases its rationale on possible harm to the minor athlete, based on indirect evidence that harm could happen (but didn't): tweets by others about this kid, and some study finding that trans kids are four times more likely to be bullied. So it seems to me that this is a clear-cut case of clearly protected political speech by someone whose job it is to speak it.

I am therefore trying to wrap my head around the "legislative immunity" argument that both the district court and first circuit found persuasive. In Maine House of Representatives, some things require a super-majority (2/3 votes), e.g.: overriding the governor's veto. What is to stop the slim majority of one political party of censuring enough members of the opposing party based on similar fig-leaf reasons, depriving them of the ability to vote, and thus gaining the super-majority?

I continue to believe that the stable equilibrium for a democracy is absolute parliamentary immunity. Occasional legislative brawls are normal and healthy, mudslinging is just how politics works, and if you buy a politician’s shitcoin you deserve what you get. In contrast, excluding duly elected representatives from voting is, well, not a democracy.

and has only publicly available information

I don't find this compelling. A vast majority of behavior that falls under "doxxing" involves the collation and signal-boosting of information that is technically 'publicly available' to a motivated sleuth, but not widely distributed. The most familiar example round these parts would be Scott's real name, which was always trivial to find through the Internet Archive if you knew to look for it. That wasn't a good reason for the NYT to publicize it against his express wishes, and I think the same goes here.

(Of course, that only proves Libby's behavior was either knowingly dickish, or irresponsible. There's still a leap from that to arguing it's so beyond the pale that it's worth barring her from fulfilling her duties as an elected representative. But as a matter of common decency, all else being equal, Libby should apologize.)

Champion athletes are different- anyone paying attention to the sport knows who they are.

It's a tough question. Normally you'd expect to anonymise the student but in this case, in order to avoid "how do you know that's the same person?" or "this is all fake", she did have to show evidence that it was who she said it was.

The timeline does sound skewed to me, though; I note by the PDF the update was that in 2024 John was still competing with the boys which is where he tied for fifth place, then in 2025 Katie won first place with the girls.

So 2023 or 2024 - ties for fifth, 2025 - first place. I think looking at that leap in performance, it's hard to argue "trans girls in sports don't have any advantage over cis girls" at this stage. I've no idea if the kid is on hormones and we'll have to wait a couple of years into the transition to see any real changes, but that is the crux of the argument: while we're waiting those years, Katie formerly John is now beating girls for places on state teams, college sports scholarships, and possibly Olympic places.

(The irony would be if the reason John only made fifth place competing with the boys is because they were secretly transitioning all along for a couple of years, but now they're fully out as Katie).

Oh, I make no claims as to the merits of the argument. I think publicizing and politicizing a teen's name like this would have been bad form even if we were talking about an unambiguous, garden-variety cheater (say, a kid who'd taken prohibited steroids). It's just not a responsible politician's place to name-and-shame a random minor like this, whether the kid did something actually wrong or not.

This is preposterous. Libby posted an athlete's record. Their literal public performance. Not their phone number, address, social media accounts, criminal record, or any other information that might be publicly available but threatening in the wrong context. Conflating that with doxing is just rank bad faith.

What's next, is a Ellen Page's IMDB page doxing? Is Bruce Jenner's Olympic record doxing?

I am not saying Libby's actions were doxxing, or even that they were particularly blameworthy (though I do think they were dickish, a much lesser charge). I am saying that "the information was publicly available" doesn't prove it wasn't doxxing.

The whole legal concept of publicly available information needs to be radically reimagined.

I can get a copy of the deed to someone's house in minutes in most cases, for $2.50 online.

That info being publicly available if I went to courthouse, dug through a pile of books in the basement for hours; versus that information being publicly available via app on my phone. I'm not even sure those are the same concept.

That info being publicly available if I went to courthouse, dug through a pile of books in the basement for hours; versus that information being publicly available via app on my phone.

Or, as Hitchhiker's Guide to the Galaxy put it,

"But the plans were on display…” “On display? I eventually had to go down to the cellar to find them.” “That’s the display department.” “With a flashlight.” “Ah, well, the lights had probably gone.” “So had the stairs.” “But look, you found the notice, didn’t you?” “Yes,” said Arthur, “yes I did. It was on display in the bottom of a locked filing cabinet stuck in a disused lavatory with a sign on the door saying ‘Beware of the Leopard."

I think theres something to be said for a concept of a "Friction Threshold", where everything above a certain level of difficulty/cost isn't considered "publically available" for certain purposes. Now, what exactly that threshold is depends very much on the information and medium, I'll grant. But it is very much one thing to be able to access the information, vs sharing/making it easier to find, vs publically broadcasting it. Or, to put it light-heartedly, my mother's age may have been easily findable/public record, but that doesn't mean she was happy when her nieces plastered the telephone poles up and down the block with "Happy 40th birthday!" messages.

I think Maine's in the right here. The first Amendment does not mean politicians cannot retaliate against other politicians for their speech. A Speaker of the House who pisses off too many people will not be Speaker anymore. Can this retaliation go so far as preventing a legislator from voting? The constitution states:

Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member.

This is a reference to the federal House and Senate. Nevertheless, it supports the notion that the framers did not think the First Amendment, which they passed shortly after this, which initially applied only to the federal government, limited Congress's right to regulate the speech of Congressmen. The right to expel a member appears absolute, courts have no say. Incorporation means that what initially applied to the federal government now applies to the states. Given that the First Amendment did not limit the actions of the federal legislature in regulating its members' speech, it stands to reason that the same should be true for the state legislators. It's not a matter of "legislative immunity" so much as the parameters of the First Amendment.

The constitutional problem is effectively disenfranchising a representative's constituents, by preventing the representative from voting. Even if a recall and replacement election could be held and a new representative seated, prior to the following legislative vote, you'd be allowing the majority to choose their own opposition. (This is also true of expulsion, but, as the quote shows, a higher threshold was chosen for that.)

Still, the 2/3 requirement for expulsion means the majority cannot use its power to determine rules to expel. That at least implies that it cannot do things that are tantamount to expulsion by a bare majority.

What is to stop the slim majority of one political party of censuring enough members of the opposing party based on similar fig-leaf reasons, depriving them of the ability to vote, and thus gaining the super-majority?

The Maine Constitution requires a 2/3rds vote of both Houses to override a veto, not 2/3rds vote of all those voting.

2/3 of that House shall agree to pass it, it shall be sent together with the objections, to the other House, by which it shall be reconsidered, and, if approved by 2/3 of that House

Hence reducing the number of voting legislators doesn't change the supermajority threshold.

Interestingly, the US Senate when it last changed the cloture rule converged on the same logic -- they changed the threshold from 2/3rds of Senators voting to 3/5ths of Senators sworn.

What is to stop the slim majority of one political party of censuring enough members of the opposing party based on similar fig-leaf reasons, depriving them of the ability to vote, and thus gaining the super-majority?

I don't know anything about the Maine constitution, but it's interesting to consider the US constitution. Article 1 Section 5:

"Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members [...] Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member."

Technically, yeah, any majority could sieze housewide legislative power for itself by changing the rules. The real reason they don't do this is that political legitimacy does not stem from the plain text of the constitution alone. There are the written rules, and there are the real rules. Sometimes, they even overlap.

What is to stop the slim majority of one political party of censuring enough members of the opposing party based on similar fig-leaf reasons, depriving them of the ability to vote, and thus gaining the super-majority?

That sounds like a Second Amendment sort of question.

More realistically, they lose legitimacy, people defy them, and they stop going down that path before reaching that point. That's hardly the only open road to tyranny.

It would also become a federal constitutional issue. The Constitution requires that the states each have a republican form of government. While that is pretty loosely enforced as to form, it would be hard to argue that Maine is if it became a one-party state and 45 percent of the people’s elected legislators were barred from voting.

This would probably run into unfixable quorum issues first.