'Actions have consequences': 3-judge appeals panel shoots down GOP’s First Amendment walkout defense

01 March 2024

In 2022, Oregon voters approved Ballot Measure 113, agreeing that state lawmakers with ten or more unexcused absences should be barred from seeking reelection.

The measure was designed to deter members of the Oregon State Legislature from walking off the job as a way of protesting policies they didn't like. Oregon Democrats who supported Measure 113 argued that Republican lawmakers were welcome to debate them or disagree with them, but that walking off the job was unfair to taxpayers.

Opponents of Measure 113, including State Senators Dennis Linthicum (a Republican) and Brian Boquist (an independent), have been fighting the case in court and attacking 113 as a violation of their First Amendment rights. But a three-judge panel on the 9th U.S. Circuit Court of Appeals has rejected their argument.

Nigel Jaquiss, a reporter for Willamette Week in Oregon, explains, "Linthicum and Boquist…. claimed that walking out was simply an exercise of their personal right of free speech. U.S. District Judge Ann Aiken found against the senators late last year, so they appealed to the 9th Circuit Court of Appeals. The three-judge appellate panel, which included two noted conservatives — Judge Jay Bybee, who as a U.S. assistant attorney general wrote a 2002 memo justifying torture for President George W. Bush, and Judge Daniel Bress, who clerked for U.S. Supreme Court Justice Antonin Scalia — didn't buy that justification."

The panel also included Judge Ronald Gould, appointed by President Bill Clinton.

The three judges wrote, "Actions have consequences. When those actions might be described as expressive in nature, the First Amendment sometimes protects us from the repercussions that follow. This is not one of those instances."

Read Willamette Week's full article at this link.

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