U.S. District Court fails to seize opportunity in Boquist case to define limits of political speech
The only win in state Sen. Brian Boquist’s lawsuit was his $1 award
Sen. Brian Boquist, I-Dallas, sits on the Senate floor in December 2022. (Connor Radnovich/Oregon Capital Chronicle)
When performance politics goes to court, seldom do we get many helpful answers, and no one wins, in a practical sense.
Unless you consider a $1 award to be a win.
The recently settled legal squabble between state Sen. Brian Boquist, I-Dalles, and the state Senate leadership was an opportunity for a federal court to set useful guidelines about what is and isn’t acceptable political speech. But that didn’t happen.
No one got much out of the lawsuit that has bounced around courtrooms for four years, reaching what may have been a final decision on July 17.
The core of it stems from a couple of viral quotes from Boquist, spawned from an incident that resembled performance politics: During a walkout of Republican senators in 2019, Boquist warned then-Senate President Peter Courtney not to try to arrest absent lawmakers: “Mr. President, and if you send that state police to get me, Hell’s coming to visit you personally.”
Soon after that he told a reporter: “This is what I told the (state police) superintendent: ‘Send bachelors and come heavily armed. I’m not going to be a political prisoner in the state of Oregon. It’s just that simple.’”
Eventually, he and the other senators returned, but before he did a Senate committee on conduct said it would require him to give 12 hours notice before he showed up at the statehouse, on grounds that … he was dangerous? That seemed to be the implication.
Boquist sued Senate Democratic leaders over the requirement, arguing accurately that it impinged on his ability to do his work in the Senate. The legal wrangling lasted three years.
U.S. District Court Judge Michael McShane on Jan. 20, 2020 dismissed Boquist’s suit, saying “while both sides can point fingers and complain that the other is overreacting to a political situation, (Boquist’s) chosen words on the Senate floor were those of a bully on the playground. As such, they are unprotected fighting words.” Quoting a 1942 New Hampshire case, he said such words “by their very utterance inflict injury or tend to incite an immediate breach of the peace.”
And he added, “remarkably, (Boquist) argues that his statement to defendant Courtney – ‘if you send the state police to get me, Hell’s going to visit you personally’ – was a statement of religious expression.” The Senate, he said, did not violate Boquist’s speech rights.
In April 2022 the Ninth Circuit Court of Appeals reinstated the case, however, saying Boquist had “adequately alleged that he, in fact, had engaged in constitutionally protected speech and was subject to a retaliatory adverse action on account of that speech. The Senate majority members, however, will have an opportunity to raise affirmative defenses, including that their actions were motivated by legitimate security concerns.”
The case went back to McShane, who ruled under the terms of the higher court’s decision in Boquist’s favor, but awarded him just one dollar.
In all, this river of court activity seems to have reached a nebulous conclusion.
The courts could have gone further and should have.
“Political speech” has been stretched in recent years to sometimes absurd points. The violent Jan. 6, 2021 riot at the U.S. Capitol, for example, has been described by the national Republican Party as “legitimate political discourse.”
Political speech traditionally has been given more judicial leeway than most other forms, but how does our current overheated political speech fit into that framework? What are unprotected fighting words or panic words in today’s environment? A serious answer coming from the courts would be useful.
But courts have placed limits on speech in the past. Famously, Justice Oliver Windell Holmes in 1919, writing for a unanimous U.S. Supreme Court, said, “The most stringent protection of free speech would not protect a man falsely shouting fire in a theatre and causing a panic… The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.”
Fighting words and direct threats have been limited, too.
This becomes salient in a day when emotions can get out of hand in political situations. Decisions in cases like the Boquist suit could help in drawing the lines between what we should find acceptable and what we shouldn’t.
That said, our best approach would be to cool ourselves down instead of letting it get that far.
Here’s something pointing to a positive answer. In an email to with the Capital Chronicle in April 2022, just after the appellate court reversal, Boquist said, “I will ask if Peter Courtney wants to sit down to mediate with the goal of setting in place a method to ensure this never happens again. That was my original goal.”
Maybe they should have taken him up on it.
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