Why Rep. Zooey Zephyr’s Free Speech Lawsuit is Unprecedented

Montana State Rep. Zooey Zephyr filed a lawsuit on Monday after lawmakers voted to censure her last week, marking what experts call an “unusual” legal suit to protect her right to free speech.

The lawsuit, which was filed with the American Civil Liberties Union, argues that barring Zephyr from debate on the House floor is a violation of the rights of the representative and her 11,000 constituents. Two constituents from Montana House District 100, which Zephyr represents, were named as plaintiffs in the suit.

“When the speaker refused to recognize me, he took away not only my right as a legislator to partake in speech and debate on the floor, but also the voice of the people who elected me,” Zephyr said in an interview with TIME on Tuesday. “And that is an attack on the very first principles of our country.”

Efforts to silence Zephyr reflect similar efforts seen across Republican-led legislatures. These actions are just the latest in a “trend” of using “extraordinary procedural maneuvers to attempt to win arguments that they can’t win on the merits,” Northeastern Law Professor Jeremy Paul tells TIME. “Using decorum rules as a way of shutting down debate, it’s not American.”

Attempts to expel the Tennessee Three—representatives who were accused of breaking House rules for leading protests against gun violence—occurred in April, though two of those legislators were later reappointed, and the measure to oust the remaining representative never went through. Oklahoma State Rep. Mauree Turner, who is nonbinary, was also censured by House leadership after they reportedly let a protester use their office after an arrest.

“The Montana House’s partisan censure of Rep. Zephyr was utterly unjust and blatantly discriminatory,” said American Constitution Society President Russ Feingold in an email statement to TIME. “We hope the lawsuit combined with the outpouring of political and grassroots support for her and for Reps. Pearson and Jones from Tennessee serve as a warning to those who would opt for authoritarianism over democracy.”

Zephyr is seeking an injunction to be reinstated for the final days of legislative session, during which the state’s budget will be decided. She is suing Montana House Speaker Matt Regier and statehouse Sergeant-at-Arms Bradley Murfitt in her legal proceedings.

Read More: Rep. Zooey Zephyr: My Censure Was an Attack on Democracy

How unprecedented is this case?

Legal experts tell TIME that Zephyr’s lawsuit is unprecedented because it alleges that both the representative and her constituents’ rights were violated.

Attorneys for Zephyr also cited two court cases where judges sided with lawmakers who have made controversial comments. One includes the 9th U.S. Circuit Court of Appeals ruling in 2022 that said making Oregon Senator Brian Boquist give notice that he was coming to the state capitol violated his right to free speech. The second was a 1996 U.S. Supreme Court decision that forced the Georgia House of Representatives to let Julian Bond take his seat. That decision reaffirmed that legislators have the right to controversial speech under the First Amendment.

Both experts compare the current state of duress to a post-World War II America, when the Red Scare was used to target screenwriters, authors and officials who were regarded as sympathetic to communism.

“Legislatures, historically, have penalized or even ousted lawmakers who have violated the law or engaged in extraordinarily immoral conduct,” said Ken Paulson, director of the Free Speech Center and a professor at Middle Tennessee State University. “But what we’re seeing in Missoula is punishment for nothing more than colorful and outraged speech.”

Paul mentions that the case is particularly interesting because parties in the suit argue that not letting Zephyr actively participate in session impacts Montana residents’ equal protection clause, which says citizens have to have the same rights as other citizens.

“Constituents voted for her to be their representative, and when she’s not allowed to speak, that interferes with their ability to be represented,” says Paul. “Some constituents are listed as plaintiffs in the suit and that adds an additional wrinkle to the case that you don’t ordinarily see in these kinds of cases,” he adds.

Why is the court interfering with this case?

Typically, experts tell TIME, courts do not interfere in what’s considered to be political matters. That means that any issues related to lawmakers behavior or conduct within legislature is normally resolved by elected officials.

And other efforts to silence or expel lawmakers, such as the Tennessee Three, did not result in lawsuits because those elected officials had a way to remedy the actions taken against them.

This case, however, distinguishes itself because the plaintiffs allege that the rights endowed to them by Montana’s constitution were infringed upon. Montana law allows House leadership to expel or punish a member if two-thirds of legislators agree. In order for this measure to apply to Zephyr, she would have to engage in actions that “clearly violate the rules, collective rights, safety, dignity, integrity and decorum of the House of Representatives,” according to the law.

The ACLU and Zephyr argue that Zephyr’s “fail[ure] to ‘calm’ the crowd” of protestors—which is the basis of her censure—did not justify the punishment she was given.

“This is going to put some pressure on the court to say, well, you know, in general, we won’t be involved in cases like this, but this is such an extreme action on the part of the Montana house, that we’re going to interfere,” Paul says.