DOJ, free speech group fight Maine Democrats' voting ban on GOP lawmaker: 'tinpot dictatorship'

The Justice Department and a free-speech group at odds with the Trump administration's allegedly speech-chilling policies can agree on one thing: A blue state cannot disenfranchise a conservative lawmaker and her constituents just because it dislikes her speech.

The government and the Foundation for Individual Rights and Expression (FIRE) filed friend-of-the-court briefs with the 1st U.S. Circuit Court of Appeals in favor of Maine state GOP Rep. Laurel Libby and several constituents who voted in the 2024 legislative election, whose lawsuit seeks restoration of Libby's voting and speech rights in the Democrat-led chamber.

The Maine House censured Libby on a party-line vote for refusing House Speaker Ryan Fecteau's demand to remove, from her Facebook page, already public before-and-after photos of a transgender student athlete who won fifth place in male competition two years ago and first place in female competition this year. She must publicly apologize to be reinstated.

President Biden-nominated U.S. District Judge Melissa DuBose decided not to issue a preliminary injunction, finding Fecteau has legislative immunity because "he executed the will of the body" pursuant to the censure resolution for Libby breaching the code of ethics and "imposed the precise sanction" from the rule.

The Supreme Court granted an unsigned emergency injunction for the pendency of the appeal Tuesday, ordering the Maine House clerk to count Libby's votes, over the dissents of Justices Sonia Sotomayor and Ketanji Brown Jackson. Fifteen Republican attorneys general had sided with Libby in her emergency appeal.

Jackson's dissent said the plaintiffs haven't shown "any significant legislative votes scheduled" before the 1st Circuit hears oral argument in two weeks, much less that they will suffer "concrete, imminent, and significant harm" in that time period, and there's no "circuit split" for SCOTUS to resolve.

An Oregon GOP lawmaker is facing similar silencing, through a "hostile work environment" investigation, for protesting Democratic legislation against so-called book bans by reading from a sexually explicit book in his district's school library on the House floor.

Most Pine Tree State likely voters seem to agree with Libby's opposition to gender identity-based participation in school sports, at least if it costs Maine federal money, according to a new survey commissioned by parental rights group Courage Is a Habit.

When informed the Department of Health and Human Services found the Maine Department of Education, Maine Principals’ Association and Greely High School in violation of Title IX for letting males play in girls' sports, a slim majority (52.2%) supports complying with President Trump's executive order "keeping men out of women's sports."

Even more (54.7%) support Trump's order "restricting transgender chemical and surgical mutilation of people under 19" – a more incendiary but arguably more accurate description of what supporters call gender-affirming care – the survey found. The most, (58.3%), oppose teaching K-12 students "they can be born in the wrong body."

Fewer voters (51.6%) approve of Maine Democratic Gov. Janet Mills' job performance, though she's still more popular than Trump (46%). Mills made Maine the poster child for Trump defiance by refusing at a White House event to say she'd comply with his sports executive order.

Spry Strategies surveyed a random sample of 500 likely general election voters by online-to-mobile and "interactive voice response" interviews April 22-25, with a 4.4 percentage point margin of error and results "weighted to ensure accuracy," the group said.

'Little more than a glorified lobbyist'

Since the 1st Circuit refused to overturn the New Hampshire House's rejection of a virtual voting option for members at higher risk from COVID-19, Judge DuBose said Libby also cannot clear the "extraordinary character" exception to legislative immunity under an 1880 Supreme Court precedent overturning the U.S. House's imprisonment of an uncooperative witness.

The judge also emphasized Libby and her constituents weren't challenging the censure itself, and while this was the first time "a censured Representative has refused to apologize," that does not "in and of itself make the act extraordinary … because the consequence is plainly stated" in the ethics rule she was found to have violated.

While DuBuse noted Libby's remaining powers, including getting paid, having staff and participating in caucus meetings, this nuclear option "cuts District 90’s representative down to little more than a glorified lobbyist," Assistant Attorney General Harmeet Dhillon wrote. "Absent removal, District 90 cannot even hold a special election to restore its vote in the house."

"What the majority did to Rep. Libby they can do to every member of the minority," setting an example for Maine's GOP-controlled neighbor New Hampshire to follow against its Democratic minority, FIRE said.

"Does the District Court judge truly believe that if the majority of a state legislature wants to simply exclude the entire minority from speaking or voting because they disagree with the majority, that this has no remedy other than the citizens voting for a new majority in the next election?" FIRE's outside counsel Marc Randazza wrote.

The fiery First Amendment lawyer has tangled with government entities in several New England cases in recent years, most recently prevailing against a Maine school district that threatened to sue his client, the late citizen journalist Shawn McBreairty, for criticizing its alleged suppression of female student protests against a gender-identity restroom policy.

Out of step with the "history and tradition of legislative body sanctions," Libby is barred from voting or speaking through 2026 because "she will not apologize to the level of the Speaker’s arbitrary standards for her view on an intensely debated issue—the participation of male athletes in girls’ high school sports," Dhillon's DOJ brief says.

By not expelling her so Libby's 9,000 constituents can choose a new representative, "the Speaker has determined District 90 deserves no representation," an action so extraordinary that "any claim of purported legislative immunity must fail," Dhillon said. 

DuBose had said "the case law does not indicate this should be the first case to clear the high bar for applying this exception to a legislator’s conduct" in light of the 1st Circuit's refusal to deem the ban on remote voting during COVID extraordinary.

"Beyond Libby’s Facebook post, the boy’s victory was a public event and widely accessible in the media and online," the DOJ brief says. "In stark comparison to the treatment of Representative Libby, Speaker Fecteau, and other house members regularly show minors on their social media without reprisal."

Judge's ruling sets up 'permanent one-party rule'

Regardless of Democrats' hypocrisy, the "Constitution fully protects sharing politically salient images," which "follows a venerable American tradition that includes anti-war and civil rights advocates who used evocative images to change public opinion," says Randazza's brief for FIRE, which shows several such photos.

"Had she shared a post praising rather than criticizing participation in the event, the House majority would not have censored her," Randazza said. "This viewpoint-based disparity is stark and constitutionally repugnant."

He practically threw up his hands in disbelief at the message DuBose's ruling, left unchecked, would likely send to other states, letting conservative legislatures censor "statements in support of transgender students" and forcing voters "to keep the majority in power if they want a representative who can vote on their behalf."

It would create "permanent one-party rule, with compelled speeches of loyalty to whatever political or social position the majority in power deems to be orthodox," reflecting "tinpot dictatorships and kleptocracies across the globe – but until now, no jurist who swore to uphold and defend the constitution has stamped with their imprimatur."

FIRE also has a new report on colleges punishing more than 600 students and groups for their speech from 2020 through 2024, mostly related to race — especially the death of George Floyd in Minneapolis — "and the Israeli-Palestinian conflict." 

Administrators surged past students as "the main instigators of attempted speech suppression" after Hamas attacked Israeli civilians in 2023, the report found.