Leroy Pernell, et al. v. Robert Alexander Andrade, et al.

[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 23-10616
____________________
LEROY PERNELL,
DANA THOMPSON DORSEY,
SHARON WRIGHT AUSTIN,
SHELLEY PARK,
JENNIFER SANDOVAL, et al.,
Plaintiffs-Appellees,
versus
FLORIDA BOARD OF GOVERNORS OF THE STATE
UNIVERSITY,
et al.,
Defendants,
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2 Opinion of the Court 23-10616
ROBERT ALEXANDER ANDRADE,
MELONY BELL,
DAVID BORRERO,
JUAN FERNANDEZ-BARQUIN,
RANDY FINE, et al.,
Interested Parties-Appellants.
____________________
Appeal from the United States District Court
for the Northern District of Florida
D.C. Docket No. 4:22-cv-00304-MW-MAF
____________________
Before WILLIAM PRYOR , Chief Judge, JILL PRYOR , Circuit Judge, and
C OOGLER ,* Chief District Judge.
WILLIAM PRYOR , Chief Judge:
This appeal poses the question whether a common-law priv-
ilege shields state legislators from a discovery request made for the
purpose of determining the legislators’ motives in passing a law.
Professors and one student challenged Florida’s Individual Free-
dom Act for having a racially discriminatory purpose in violation
* Honorable L. Scott Coogler, Chief United States District Judge for the North-
ern District of Alabama, sitting by designation.
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23-10616 Opinion of the Court 3
of the Equal Protection Clause of the Fourteenth Amendment. Af-
ter the plaintiffs subpoenaed legislators for documents related to
the bill’s drafting and adoption, the legislators moved to quash the
subpoenas based on the legislative privilege. The district court par-
tially denied the motion on the grounds that factual documents are
outside the scope of the privilege and alternatively that important
federal interests outweighed the legislative privilege. Because fac-
tual documents are within the scope of the privilege, which is un-
qualified in this kind of lawsuit, we reverse and remand with in-
structions to quash the subpoenas.
I. BACKGROUND
In April 2022, Governor DeSantis signed into law the Indi-
vidual Freedom Act, also called the Stop W.O.K.E. Act. See Ch.
2022-72, Laws of Fla. Governor DeSantis described the Act as “a
stand against the state-sanctioned racism that is critical race the-
ory.” Governor DeSantis Announces Legislative Proposal to Stop
W.O.K.E. Activism and Critical Race Theory in Schools and Corpora-
tions, News Release (Dec. 15, 2021), https://perma.cc/9VV7-
7YCE. It prohibits Florida’s public schools from “subject[ing] any
student or employee to training or instruction that espouses, pro-
motes, advances, inculcates, or compels such [individual] to be-
lieve” any of eight concepts descended from critical race theory.
F LA . S TAT. § 1000.05(4)(a). For example, the Act stops schools from
teaching that “[m]embers of one race, color, national origin, or sex
are morally superior to members of another,” that “[a] person, by
virtue of his or her race, color, national origin, or sex, is inherently
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4 Opinion of the Court 23-10616
racist, sexist, or oppressive, whether consciously or uncon-
sciously,” or that “[a] person, by virtue of his or her race, color,
national origin, or sex, should be discriminated against or receive
adverse treatment to achieve diversity, equity, or inclusion.” Id. §
1000.05(4)(a)(1), (2), (6).
In August, seven professors and one student from public uni-
versities in Florida challenged the law in the district court as viola-
tive of their civil rights. See 42 U.S.C. § 1983. They described the
Act as “racially motivated censorship that the Florida legislature
enacted, in significant part, to stifle widespread demands to discuss,
study, and address systemic inequalities, following the nationwide
protests that provoked discussions about race and racism in the af-
termath of the murder of George Floyd.” They alleged that the Act
imposes viewpoint restrictions in violation of the First Amend-
ment, is unconstitutionally vague in violation of the Due Process
Clause of the Fourteenth Amendment and was enacted with a ra-
cially discriminatory purpose in violation of the Equal Protection
Clause. The district court preliminarily enjoined the Act’s enforce-
ment in higher education on the viewpoint discrimination and
vagueness grounds. That injunction is the subject of another ap-
peal. The plaintiffs did not seek preliminary injunctive relief for the
claim that the Act violated the Equal Protection Clause.
The plaintiffs served subpoenas on fourteen non-party legis-
lators—13 co-sponsors of the Act and one legislator who supported
the bill during a Florida House of Representatives debate. The sub-
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23-10616 Opinion of the Court 5
poenas sought an array of documents from “both personal and gov-
ernment devices” from January 2020 onward that bore on 18 sepa-
rate requests. For example, the subpoenas demanded the produc-
tion of “[a]ny and all notes, memoranda, research, written analysis,
white papers, studies, reports, or opinions relied upon, created by,
or reviewed by [the legislator] or [the legislator’s] employees, staff,
or representatives,” regarding “creation and drafting,” the “enact-
ment,” and the “implementation” of the Act. The subpoenas also
sought “[a]ll [d]ocuments or [c]ommunications assessing or pre-
dicting the potential impacts of [the Act], or other related bills, in-
cluding, but not limited to, impact on [b]lack persons, including
students or educators, in Florida.” And the requested discovery ex-
tended beyond documents concerning the bill itself to “all docu-
ments reflecting communications . . . regarding Racial Justice Pro-
tests or Black Lives Matter” or “Critical Race Theory.” After the
parties conferred to discuss the subpoenas, the plaintiffs proposed
a list of over 70 search terms for use in complying with the subpoe-
nas—e.g., antifa, Woke-at-work, Colonizer, 1619, “Sexis!”, “Femi-
nis!”, and Tucker Carlson. In response, the legislators argued that
“the legislative privilege prohibits these sort of fishing expeditions”
and moved to quash the subpoenas.
The district court partially granted and partially denied the
legislators’ motion. Because it determined that “most of the docu-
ments . . . are subject to legislative privilege,” it granted the motion
to quash as to the bulk of the requested discovery. It also narrowed
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6 Opinion of the Court 23-10616
the list of search terms to exclude those related to gender and short-
ened the timeframe to extend from March 2021 through the pas-
sage of the Act.
The district court required the production of “documents
containing factually based information used in the decision-making
process or disseminated to legislators or committees” for two rea-
sons. First, it reasoned that the legislative privilege does not extend
to “purely factual documents, including bill drafts, bill analyses,
white papers, studies, and news reports.” Second, the district court
reasoned that, even if the legislative privilege does extend to purely
factual documents, it yields to the important federal interests pre-
sent here. The district court concluded that, on the one hand, the
“legislative privilege’s purpose” “weigh[ed] heavily in favor of non-
disclosure.” But it concluded that, on the other hand, the subpoe-
nas sought evidence that was “highly relevant” to the plaintiffs’ ef-
forts to “vindicate public right[s] that impact thousands of faculty
and students,” and “in that respect, their equal protection claim
[was] akin to criminal prosecutions,” to which the legislative privi-
lege can yield.
After the legislators appealed, the district court stayed the
discovery order pending the resolution of this appeal. The appeal
was expedited to oral argument on the parties’ joint motion. Sev-
enteen state attorneys general filed a brief as amici curiae supporting
the legislators.
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23-10616 Opinion of the Court 7
II. STANDARD OF REVIEW
This Court reviews the denial of a motion to quash a sub-
poena for abuse of discretion. See In re Hubbard, 803 F.3d 1298, 1307
(11th Cir. 2015). “A ruling based on an error of law or one that re-
flects a clear error of judgment is an abuse of discretion.” Id.
III. DISCUSSION
We divide our discussion in two parts. We first address the
erroneous determination that the legislative privilege does not pro-
tect “factual documents.” We then address the erroneous determi-
nation that the legislative privilege should yield to the important
federal interests in this case.
A. The Legislative Privilege Shields Purely Factual Information.
A common-law privilege protects state legislators from “de-
terrents to the uninhibited discharge of their legislative duty” for
the purpose of “the public good.” Tenney v. Brandhove, 341 U.S. 367,
377 (1951). Although the core of the privilege is a state legislator’s
immunity from civil suit for acts related to legislative proceedings,
see id. at 379, we have explained that this “privilege extends to dis-
covery requests” because “complying with such requests detracts
from the performance of official duties.” Hubbard, 803 F.3d at 1310.
So, where a discovery request “inquir[es] into legislative acts or the
motivation for actual performance of legislative acts,” state legisla-
tors can “protect the integrity of the legislative process” by invok-
ing the privilege to quash the request. Bryant v. Jones, 575 F.3d 1281,
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8 Opinion of the Court 23-10616
1304–05 (11th Cir. 2009) (quoting United States v. Brewster, 408 U.S.
501, 507, 509 (1972)).
The district court split the documents subject to subpoena
into two categories: “purely factual documents” and those docu-
ments that “set[] out the [l]egislators’ or their staff members’ moti-
vations and mental impressions.” And it denied the legislators’ mo-
tion as to the first category because, it determined, factual docu-
ments fall outside the privilege’s scope. But the categorical distinc-
tion drawn by the district court between factual documents and
other documents has no basis in our precedent.
Our precedent makes clear that we consider the purpose of a
subpoena, not what the subpoena seeks, to determine if the legis-
lative privilege applies. See Hubbard, 803 F.3d at 1311. In Hubbard,
we explained that “[a]ny material, documents, or information that
. . . go[es] to legislative motive [is] covered by the legislative privi-
lege.” Id. We held that the district court should have quashed sub-
poenas where their “only purpose was to support the lawsuit’s in-
quiry into the motivation behind [a statute], an inquiry that strikes
at the heart of the legislative privilege.” Id. at 1310.
In Hubbard, we explained that where a claim is “at its core
and in its entirety an inquiry into the subjective motivation” of the
legislators, we do not take a “document-by-document” approach:
[T]here was no need for the lawmakers to peruse the
subpoenaed documents, to specifically designate and
describe which documents were covered by the legis-
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23-10616 Opinion of the Court 9
lative privilege, or to explain why the privilege ap-
plied to those documents. It was enough to point out,
as the lawmakers did, that the only purpose of the
subpoenas was to further [the plaintiff’s] inquiry into
the lawmakers’ motivations for [a statute] and that
their legislative privileges exempted them from such
inquiries.
Id. at 1311 (internal citation omitted). In other words, courts need
not decide whether a document befits some descriptor, like “purely
factual,” to determine whether it is protected. If the document is
sought for an impermissible purpose, the inquiry is over.
Our inquiry can end as quickly. According to the plaintiffs’
response to the Florida legislators’ motion to quash the subpoena,
the plaintiffs served the subpoenas on the legislators to “deter-
min[e] whether there was a discriminatory motive behind the
[Act].” By the plaintiffs’ own admission, the subpoenas’ purpose
was to uncover the legislators’ motives in passing the law. “The
privilege applies with full force against requests for information
about the motives for legislative votes and legislative enactments.”
Id. at 1310. So, the privilege applies with its usual force against the
discovery of even the factual documents in the Florida legislators’
possession. The district court abused its discretion when it deter-
mined otherwise.
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10 Opinion of the Court 23-10616
B. The Legislative Privilege Is Unqualified Here.
The district court concluded, in the alternative, that the
purely factual documents were discoverable because any legisla-
tive privilege protecting them “[gave] way to important federal in-
terests.” To be sure, the legislative privilege may yield “where im-
portant federal interests are at stake, as in the enforcement of fed-
eral criminal statutes.” United States v. Gillock, 445 U.S. 360, 373
(1980). But the district court decided that “the exception to [the]
legislative privilege extends beyond the circumstances identified in
Gillock” to include the facts of this case because the vindication of
a “public right that impact[s] thousands of faculty and students” is
“at least as important as—if not more important” than—prosecut-
ing criminals.
This extension was erroneous. The Supreme Court has
never expanded the Gillock exception beyond criminal cases. “[F]or
purposes of the legislative privilege, there is a fundamental differ-
ence between civil actions by private plaintiffs and criminal prose-
cutions by the federal government.” Hubbard, 803 F.3d at 1311–12;
see Gillock, 445 U.S. at 361, 372–73. Although the legislative privi-
lege does not presumptively apply in the latter kind of case, the
presumption otherwise holds firm. See Village of Arlington Heights v.
Metro. Hous. Dev. Corp., 429 U.S. 252, 268 (1977). And it is insur-
mountable in private civil actions under section 1983. Not only is a
private action under section 1983 “not a federal criminal investiga-
tion,” Hubbard, 803 F.3d at 1312, but the Supreme Court declared
in Gillock that “a state legislator’s common-law absolute immunity
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23-10616 Opinion of the Court 11
from civil suit survived the passage of the Civil Rights Act of 1871.”
Gillock, 445 U.S. at 372; see also Tenney, 341 U.S. at 376 (“We cannot
believe that Congress—itself a staunch advocate of legislative free-
dom—would impinge on a tradition so well grounded in history
and reason [as the legislative privilege] by covert inclusion [of an
exception] in the general language [of section 1983] before us.”); see
also Brown & Williamson Tobacco Corp. v. Williams, 62 F.3d 408, 421
(D.C. Cir. 1995) (“We do not perceive a difference in the vigor with
which the privilege protects against compelling a congressman’s
testimony as opposed to the protection it provides against suit.”).
In the light of Gillock and Tenney, we cannot except civil-rights ac-
tions from the application of the legislative privilege.
To be sure, Gillock left open the possibility of further exten-
sion. See 445 U.S. at 373–74. But “the Supreme Court has not set
forth the circumstances under which the privilege must yield to the
need for a decision maker’s testimony.” Lee v. City of Los Angeles,
908 F.3d 1175, 1187 (9th Cir. 2018). And absent the Supreme
Court’s imprimatur, we are reluctant to adopt a manipulable bal-
ancing test, like the one employed by the district court, that links
the derogation of the legislative privilege to a subjective judgment
of the case’s importance. Indeed, the test used by the district court
is, as the state amici put it, “not persuasive on its own terms.” As
the states explain, most of its factors “simply mirror the general
standard for discovery of non-privileged material.”
None of our sister circuits have subjected the privilege to
such a test, and at least four of them have rejected this approach.
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12 Opinion of the Court 23-10616
See id. at 1188 (holding that unsubstantiated “claims of racial gerry-
mandering,” though “serious,” “fall[] short of justifying the ‘sub-
stantial intrusion’ into the legislative process” of a discovery re-
quest (citation omitted)); Am. Trucking Ass’ns, Inc. v. Alviti, 14 F.4th
76, 88 (1st Cir. 2021) (“[This] argument suggests a broad exception
overriding the important comity considerations that undergird the
assertion of a legislative privilege by state lawmakers.”); La Union
Del Pueblo Entero v. Abbott, 68 F.4th 228, 239–40 (5th Cir. 2023) (“[A]
state legislator’s common-law absolute immunity from civil ac-
tions precludes the compelled discovery of documents pertaining
to the state legislative process that Plaintiffs seek here.”); In re N.D.
Legis. Assembly, 70 F.4th 460, 465 (8th Cir. 2023) (“Dicta from Village
of Arlington Heights does not support the use of a five-factor balanc-
ing test in lieu of the ordinary rule that inquiry into legislative con-
duct is strictly barred by the privilege.”). We agree and join them.
Even if the privilege could be overcome by especially com-
pelling civil-rights claims, we reject the plaintiffs’ argument that the
privilege must give way when the claim depends on proof of legis-
lative intent. The Supreme Court has described legislative immun-
ity as “indispensably necessary” as it “support[s] the rights of the
people, by enabling their representatives to execute the functions
of their office.” Tenney, 341 U.S. at 373–74. “A court proceeding
that probes legislators’ subjective intent in the legislative process is
a ‘deterrent[] to the uninhibited discharge of their legislative duty.’”
Abbott, 68 F.4th at 238 (quoting Tenney, 341 U.S. at 377). As our sis-
ter circuit has explained, we cannot create an “exception whenever
a constitutional claim directly implicates the government’s intent”
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23-10616 Opinion of the Court 13
because “that exception would render the privilege ‘of little
value.’” Lee, 908 F.3d at 1188 (quoting Tenney, 341 U.S. at 377); Ten-
ney, 341 U.S. at 377 (“The claim of an unworthy purpose does not
destroy the privilege.”); Abbott, 68 F.4th at 238 (“This holds true
even when constitutional rights are at stake.”).
IV. CONCLUSION
We REVERSE and REMAND with instructions to quash
the subpoena.
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23-10616 J ILL PRYOR , J., Dissenting 1
J ILL PRYOR , Circuit Judge, dissenting:
This appeal concerns the scope and force of the legislative
privilege—a federal common-law privilege that protects state leg-
islators from discovery into legislative acts and the subjective mo-
tivations for those acts. We must determine whether the privilege
prevents a group of plaintiffs from obtaining any discovery from
Florida legislators to support the plaintiffs’ claim that a recent Flor-
ida law intentionally harms racial minorities. I would hold that the
privilege does not bar the plaintiffs’ request.
After Florida’s Legislature enacted a law curtailing discus-
sions of race in Florida public schools, a group of professors and a
student sued Florida officials alleging that the new law was racially
motivated censorship and asking the district court to prevent its
enforcement. The plaintiffs brought four counts against the offi-
cials, including one under the Equal Protection Clause of the Four-
teenth Amendment. Because their equal protection claim required
the plaintiffs to prove that the legislature was motivated in part by
a desire to inflict racially disparate harm, the plaintiffs subpoenaed
14 legislators who sponsored or supported the Act, seeking docu-
mentary discovery. The legislators moved to quash the subpoenas,
invoking the legislative privilege. The district court granted their
motion for the most part. But it allowed the plaintiffs to subpoena
the legislators for the factual materials and information available to
the Legislature at the time it enacted the law. The court concluded
that these factual materials fell outside the scope of the privilege,
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2 J ILL Pryor, J., Dissenting 23-10616
and, in the alternative, the privilege yielded to the important fed-
eral interest in vindicating the Constitution’s guarantee of equal
protection.
The majority opinion reverses this limited denial of privi-
lege. It holds that the plaintiffs were entitled to no discovery from
the legislators because the legislative privilege is absolute in this
context. In so holding, the majority opinion adopts the outlier po-
sition that the legislative privilege never yields in cases arising under
42 U.S.C. § 1983, the paradigm federal civil rights statute. I disagree
because the Supreme Court has instructed that the legislative priv-
ilege held by state legislators is a qualified one: it may yield in the
face of important federal interests. United States v. Gillock, 445 U.S.
360, 373 (1980). Certainly, § 1983 cases are capable of advancing
important federal interests. And—as in equal protection cases like
this one—§ 1983 cases may turn on the subjective motivations of
legislators. I would not require plaintiffs put to such proof to liti-
gate these important cases with one hand tied behind their backs.
I respectfully dissent.
II. BACKGROUND
In the winter of 2021, Florida’s governor Ron DeSantis an-
nounced a legislative proposal that he dubbed the “Stop the
Wrongs to Our Kids and Employees (W.O.K.E.) Act.” News Re-
lease, Governor DeSantis Announces Legislative Proposal to Stop
W.O.K.E. Activism and Critical Race Theory in Schools and Corporations
(Dec. 15, 2021), https://perma.cc/U55E-VFUY. The governor her-
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23-10616 J ILL PRYOR , J., Dissenting 3
alded the proposed “Stop W.O.K.E. Act” as “the strongest legisla-
tion of its kind in the nation” and a tool to “take on . . . Critical Race
Theory.” Id. Describing critical race theory as “state-sanctioned
racism,” the governor promised not to “allow Florida tax dollars to
be spent teaching kids to hate our country or to hate each other.”
Id. The lieutenant governor predicted that the proposed act would
“put an end to wokeness” in Florida’s schools and assure a “woke-
free state of Florida.” Id.
Heeding the governor’s proposal, the Florida Legislature
passed what it titled the “Individual Freedom Act.” 2022 Fla. Sess.
Law Serv. Ch. 2022-72 (C.S.H.B. 7) (West).1 As relevant here, the
Act amends Florida’s Educational Equity Act to prohibit “training
or instruction that espouses, promotes, advances, inculcates, or
compels [a] student or employee to believe any . . . concept[]” spec-
ified by the Act. Fla. Stat. § 1000.05(4)(a). Many of the concepts or
viewpoints the Act specifies bear on ongoing national debates re-
garding the role of race in American society and the appropriate
response to centuries of racial discrimination. For instance, the Act
prohibits instruction advancing the views that “[a] person, by vir-
tue of his or her race, color, national origin, or sex, should be dis-
criminated against or receive adverse treatment to achieve diver-
sity, equity, or inclusion,” id. § 1000.05(4)(a)(6); “[a] person’s . . .
status as either privileged or oppressed is necessarily determined
by his or her race,” id. § 1000.05(4)(a)(3); “[a] person, by virtue of
1 The parties and the district court employ both names—the “Individual Free-
dom Act” and the “Stop W.O.K.E. Act.” From here, I refer only to the “Act.”
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4 J ILL Pryor, J., Dissenting 23-10616
his or her race . . . bears personal responsibility for . . . actions[] in
which the person played no part[] committed in the past by other
members of the same race,” id. § 1000.05(4)(a)(7); or that concepts
including “merit, . . . neutrality, objectivity, and racial colorblind-
ness are” themselves “racist[,]” id. § 1000.05(4)(a)(8) The Act does
not prohibit instruction that espouses opposing points of view.
By its terms, the Act applies to Florida’s “system of public K-
20 education,” id. § 1000.05(2)(a), which includes primary and sec-
ondary schools as well as post-secondary education—the Florida
College System and Florida’s state universities, see id. § 1000.04.
The Act permits the state Board of Education to withhold funding
from institutions that violate the Act, id. § 1000.05(7)(g), and allows
anyone aggrieved by a violation to sue for equitable relief, attor-
ney’s fees, and costs, id. § 1000.05(9).
The plaintiffs in this case are seven professors and a student
in Florida’s public universities. The professors teach a variety of
subjects: constitutional law, education law, politics, philosophy,
communications, statistics, and psychology. Across the board, they
explore race in their teaching and scholarship. For example, plain-
tiff LeRoy Pernell—a Professor of Law at Florida A&M University
College of Law—teaches a course entitled, “The Role of Race in
Criminal Procedure.” Doc. 76 at 10.2 Pernell’s course examines the
part race plays throughout the criminal process, including through
the application of the Equal Protection Clause of the Fourteenth
2 “Doc.” refers to the district court’s docket entries in this case.
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23-10616 J ILL PRYOR , J., Dissenting 5
Amendment, and asks students to consider ways in which the legal
system is “color-conscious and promotes privilege based on race.”
Id. at 10–11; see also, e.g., Reva Siegel, Why Equal Protection No Longer
Protects: The Evolving Forms of Status-Enforcing State Action, 49 Stan.
L. Rev. 1111 (1996) (considering the possibility that race-neutral ap-
proaches in antidiscrimination law “may be rationalizing practices
that perpetuate historic forms of stratification”). The professors
fear that the Act may outlaw their pedagogy.
After the governor signed the Act into law, the plaintiffs
sued. In a four-count complaint, they alleged that the Act’s lopsided
treatment of certain views violates the First and Fourteenth
Amendments. Pursuant to 42 U.S.C. § 1983, they sought declara-
tory and injunctive relief against Florida officials responsible for en-
forcing the Act.
Invoking three counts of their four-count complaint, the
plaintiffs moved in the district court for a preliminary injunction.
After a hearing, the district court entered a preliminary injunction
barring certain defendant officials from enforcing the Act as the
lawsuit progressed. In a separate appeal before this Court, the offi-
cials appealed the preliminary injunction. See Pernell v. Comm’r of
Fla. State Bd. of Educ., No. 22-13992 (11th Cir.).
The remaining count, Count IV, underlies this appeal. In
Count IV, the plaintiffs alleged that the Act violates the Equal Pro-
tection Clause of the Fourteenth Amendment because the Act
“was enacted for a racially discriminatory purpose” and would
cause racially disparate harm. Doc. 76 at 95; see Greater Birmingham
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6 J ILL Pryor, J., Dissenting 23-10616
Ministries v. Sec’y of State for Ala., 992 F.3d 1299, 1321 (11th Cir.
2021) (to make out a claim that facially neutral state action violates
the Equal Protection Clause, “[p]laintiffs must first show that the
State’s decision or act had a discriminatory purpose and effect” (in-
ternal quotation marks omitted)). According to the plaintiffs, the
Act “targets the elimination of curriculum, instruction, and conver-
sations designed to improve the educational, social, and civic expe-
riences of Black people and other historically marginalized
groups.” Doc. 76 at 97. In support of Count IV, the plaintiffs alleged
that members of the Florida Legislature knew that the Act “would
have a disparate impact on Black students and instructors,” id. at
85, in part because—as a result of testimony before the legislators—
they knew it would “suppress[] speech and ideas that help Black
people achieve equality,” id. at 90.
To test the plaintiffs’ allegations, the parties commenced dis-
covery on Count IV. The plaintiffs served 14 nonparty members of
the Florida legislature—13 legislators who co-sponsored the Act
and one who “vocally supported” it—with subpoenas containing
18 requests for production of documents. Doc. 100 at 2. The re-
quests spanned a three-year period and sought a broad set of docu-
ments and communications between the legislators, their staff, and
others regarding the Act. For instance, the subpoenas requested
that the legislators produce “[a]ny and all documents reflecting
communications, including but not limited to, letters, e-mails, and
text messages, exchanged between You or Your employees, staff,
or representatives and Defendants or their employees, staff, or rep-
resentative regarding [the Act] or Critical Race Theory.” Doc. 91-1
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at 13–14. They requested “notes, memoranda, research, written
analysis, white papers, studies, report, or opinions” relied on by the
legislators in considering the Act; documents and communications
assessing the impact of the Act; and public remarks by the legisla-
tors concerning the Act. Id. at 16. They also sought communica-
tions between the legislators, the governor’s office, and the Univer-
sity of Florida system on topics including the Act itself and concepts
like “Critical Race Theory” and “Black Lives Matter.” Id. In short,
the subpoenas sought to probe the legislators’ knowledge and mo-
tivations in supporting the Act.
The legislators moved to quash the subpoenas under Fed-
eral Rule of Civil Procedure 45(d)(3). They argued that the subpoe-
nas would subject them to an undue burden, sought irrelevant in-
formation, and requested information protected by a common-law
legislative privilege. In response, the district court quashed the sub-
poenas as to “the overwhelming majority of the documents Plain-
tiffs” requested. Doc. 100 at 19. To reduce the burden of the sub-
poenas, the district court halved the time frame covered by the
plaintiffs’ document requests. To ensure the relevance of requested
documents, the district court eliminated proposed search terms
that would bear on sex—not race—discrimination. And, to protect
the integrity of the legislative process, the district court found that
the legislative privilege prevented discovery of documents “con-
tain[ing] opinions, recommendations or advice.” Id. at 13 (internal
quotation marks omitted). In the end, the court required the legis-
lators to produce only “documents containing factually based in-
formation used in the decision-making process or disseminated to
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8 J ILL Pryor, J., Dissenting 23-10616
legislators or committees, such as committee reports and minutes
of meetings”—that is, “the materials and information available to
the Legislature at the time a decision was made and nothing more.”
Id. (alteration adopted) (internal quotation marks omitted).
The district court rested its decision that the legislators were
required to turn over “purely factual documents” on two alterna-
tive grounds. Id. at 6. First, it concluded that these documents fell
outside the scope of the legislative privilege altogether. Second, it
determined that even if the privilege reached purely factual docu-
ments, the privilege should yield as to those documents in this case.
The district court reasoned that under United States Supreme
Court precedent the legislative privilege gives way in the face of
“important federal interests.” Id. at 7 (internal quotation marks
omitted). It then applied a five-part balancing test courts have used
to evaluate of claims of executive privilege to assess whether this
case presented such interests. Acknowledging the important pur-
poses served by the legislative privilege, the district court deter-
mined to “strike some balance.” Id. at 13. It concluded that by
quashing the subpoenas as to documents of a deliberative character
(those “contain[ing] opinions, recommendations or advice”) but
not factual documents, it could avoid “the most egregious intru-
sions into the legislative process” while also giving the plaintiffs ev-
idence relevant to their equal protection claim. Id. (internal quota-
tion marks omitted)
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23-10616 J ILL PRYOR , J., Dissenting 9
The legislators appealed the district court’s discovery or-
der.3 The district court stayed its order pending this appeal, and on
the parties’ joint motion we expedited the appeal.
III. STANDARD OF REVIEW
“We review a trial court’s ruling on a motion to quash a sub-
poena only for an abuse of discretion.” Jordan v. Comm’r., Miss. Dep’t
of Corr., 947 F.3d 1322, 1326 (11th Cir. 2020) (internal quotation
marks omitted). And so “we will leave the district court’s ruling on
the motion undisturbed unless the district court has made a clear
error of judgment, or has applied the wrong legal standard.” Id. at
1326–27 (internal quotation marks omitted).
IV. DISCUSSION
On appeal, the legislators argue that the district court should
have quashed the subpoenas in their entirety. To prevail, they must
persuade us that both alternative grounds for the district court’s
decision—that the legislative privilege does not reach the disputed
documents and that it yields in this case—were abuses of discre-
tion. See Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 680 (11th
Cir. 2014) (“To obtain reversal of a district court judgment that is
based on multiple, independent grounds, an appellant must con-
vince us that every stated ground for the judgment against him is
3 The plaintiffs have not cross-appealed the district court’s partial grant of the
legislators’ motion to quash.
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10 J ILL Pryor, J., Dissenting 23-10616
incorrect.”). I agree with the majority opinion that under our prec-
edent the district court abused its discretion when it concluded that
purely factual information does not implicate the legislative privi-
lege.4 From there, we part ways.
I would not hold—as the majority opinion does—that the
legislative privilege, when it applies at all, is absolute in cases aris-
ing under 42 U.S.C. § 1983. Instead, I would affirm the district
court’s balancing approach because it is consistent with the Su-
preme Court’s instruction that the legislative privilege yields in the
4 Our precedent compels this conclusion. See In re Hubbard, 803 F.3d 1298 (11th
Cir. 2015). In Hubbard, we were confronted with subpoenas whose sole pur-
pose “was to probe the subjective motivations of the legislators who sup-
ported” a legislative act. Id. at 1310. Given this purpose, we explained, “[n]one
of the information sought could have been outside the privilege” because the
privilege guards against inquiries into “the subjective motivations of those act-
ing in a legislative capacity.” Id. at 1311. Here, the district court found (and the
plaintiffs concede) that the purpose of the subpoenas was to “[p]ursu[e] evi-
dence of discriminatory intent.” Doc. 100 at 2; see also Br. of Appellees at 29
(pointing to “the subjective motivations of the [Act’s] leading sponsors” as the
object of the subpoenas (alteration adopted) (internal quotation marks omit-
ted)). And the plaintiffs point to no other non-privileged purpose underlying
the subpoenas that would require a “a document-by-document invocation of
the legislative privilege.” Hubbard, 803 F.3d at 1311.
Not only does Hubbard confirm that when the sole purpose of a subpoena is
to probe legislative intent, the privilege applies to all the documents sought by
the subpoena, but it is inconsistent with a factual document exception. The
subpoenas in Hubbard sought the production of some of the very same types
of documents the district court here deemed factual. Compare id. at 1303 n.4
(listing subpoena demands) with Doc. 100 at 6 (listing documents excepted as
factual). We afforded no exception in that case.
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23-10616 J ILL PRYOR , J., Dissenting 11
face of “important federal interests.” Gillock, 445 U.S. at 373. Sec-
tion 1983 cases may both vindicate core federal interests (indeed,
constitutional ones) and require courts to consider legislative mo-
tivation—precisely the inquiry the legislative privilege hampers.
A. The Legislative Privilege
Through the interplay of Federal Rule of Evidence 501 and
Federal Rule of Civil Procedure 45(d)(3)(A)(iii), courts have recog-
nized that state legislators hold a federal common-law privilege
against compulsory discovery process. In re Hubbard, 803 F.3d 1298,
1307 (11th Cir. 2015); accord La Union Del Pueblo Entero v. Abbott, 68
F.4th 228, 235 (5th Cir. 2023). Rule 45 says that a court “must quash
or modify a subpoena that . . . requires disclosure of privileged or
other protected matter, if no exception” applies. Fed. R. Civ. P.
45(d)(3)(A)(iii). Rule 501, in turn, specifies that, in a federal question
case, “[t]he common law—as interpreted by United States courts
in the light of reason and experience—governs a claim of privi-
lege.” Fed. R. Evid. 501.
The legislative privilege is “important” and “has deep roots
in federal common law.” Hubbard, 803 F.3d at 1307. It “‘protects
against inquiry into acts that occur in the regular course of the leg-
islative process and into the motivation for those acts.’” Id. at 1310
(emphasis omitted) (quoting United States v. Brewster, 408 U.S. 501,
525 (1972)). The privilege’s purpose is to allow legislators to “focus
on their public duties” by avoiding discovery procedures that might
force them “to divert their time, energy, and attention,” “detract[]
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12 J ILL Pryor, J., Dissenting 23-10616
from the performance of official duties,” or otherwise chill the leg-
islative process. Id. (internal quotation marks omitted).
I pause here to distinguish the legislative privilege from the
Constitution’s Speech or Debate Clause, which provides that “for
any speech or debate in either House,” members of Congress “shall
not be questioned in any other place.” U.S. Const. art. I, § 6, cl. 1.
Unlike the Speech or Debate Clause, the legislative privilege has no
constitutional dimension. Nor, as the Supreme Court has ex-
plained, is the legislative privilege supported by the all the same
rationales as the Speech or Debate Clause (or even its state consti-
tutional analogues). Although the constitutional protection af-
forded to members of Congress is a “fundamental” part of our hor-
izontal “system of checks and balances[,] . . . the separation of
powers doctrine[] gives no support to the grant of a privilege to
state legislators” in federal-question cases. Gillock, 445 U.S. at 369–
70. And the Supreme Court has said that the history of Rule 501
“suggest[s] that the [legislative] privilege was not thought” by the
drafters of the rule “to be either indelibly ensconced in our com-
mon law or an imperative of federalism.” Id. at 367–68.5 Instead,
5 As the Court explained in Gillock, the Advisory Committee of the Judicial
Conference of the United States initially “proposed” a “draft” of Rule 501 un-
der which “federal courts would have been permitted to apply only nine spe-
cifically enumerated privileges, except as otherwise required by the Constitu-
tion or provided by Acts of Congress.” Gillock, 445 U.S. at 367. A legislative
privilege was not among those enumerated in the draft rule. “Neither the Ad-
visory Committee, the Judicial Conference, nor this Court saw fit . . . to pro-
vide” a privilege to state legislators. Id. The Gillock Court doubted that the
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23-10616 J ILL PRYOR , J., Dissenting 13
the legislative privilege is grounded in our “sensitivity to interfer-
ence with the functioning of state legislators”—comity. Id. at 372.
And “although principles of comity command careful considera-
tion, . . .where important federal interests are at stake, . . . comity
yields.” Id. at 373; accord Hubbard, 803 F.3d at 1311 (“[A] state law-
maker’s legislative privilege must yield in some circumstances
where necessary to vindicate important federal interests[.]”).
B. The Privilege is Qualified in § 1983 Cases
In Gillock, the Court identified one important federal interest
(the only one before it) to which comity yields: “the enforcement
of federal criminal statutes.” Gillock, 445 U.S. at 373. In this case,
the legislators ask us, in essence, to read Gillock as if it considered
and rejected all other possible important federal interests and con-
clude that in cases arising under 42 U.S.C. § 1983, the privilege
never yields. Indeed, they decline to challenge the district court’s
ruling on any other ground.6 The majority opinion indulges their
extreme and novel request, holding that the legislative privilege “is
insurmountable . . . under section 1983.” Maj. Op. at 10. I cannot
acquiesce. Like prosecutions enforcing federal criminal statutes,
lawsuits under § 1983 may vindicate important federal interests.
legislative privilege could be both “an imperative of federalism” and entirely
overlooked in the drafting of Rule 501. Id. at 367–68.
6 On appeal, the legislators did not renew their burdensomeness or relevance
challenges to the subpoena. And at oral argument counsel for the legislators
agreed that they had not attacked the district court’s application of the balanc-
ing test; rather they had argued only that the legislative privilege is absolute.
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14 J ILL Pryor, J., Dissenting 23-10616
And sometimes that will require discovery “into acts that occur in
the regular course of the legislative process and into the motivation
for those acts.” Hubbard, 803 F.3d at 1310 (emphasis omitted) (inter-
nal quotation marks omitted).
Section 1983—originally enacted as § 1 of the Ku Klux Klan
Act of 1871, 17 Stat. 13—“created a species of federal tort liability
for individuals to sue state and local officers for deprivations of con-
stitutional rights.” Thompson v. Clark, 596 U.S. 36, 42 (2022). Under
the statute, plaintiffs may prevail by “show[ing] that they were de-
prived of a federal right by a person acting under color of state
law.” Leake v. Drinkard, 14 F. 4th 1242, 1247 (11th Cir. 2021) (internal
quotation marks omitted). As a result, the statute allows private in-
dividuals to enforce federal constitutional rights against the states.
In 1871, Congress enacted § 1983, which it patterned after
§ 2 of the Civil Rights Act of 1866, against a backdrop of white su-
premacist lawlessness and racial terror throughout the South, to
“‘enforce the Provisions of the Fourteenth Amendment to the
Constitution of the United States.’” Monroe v. Pape, 365 U.S. 167, 171
(1961) (quoting 17 Stat. 13), overruled in part on other grounds by Mo-
nell v. Dep’t of Social Servs. of City of N.Y., 436 U.S. 658. 663 (1978).
The Supreme Court has exhaustively reviewed the “lawless condi-
tions existing in the South” underlying § 1983’s passage: “whip-
pings and lynchings and banishment ha[d] been visited upon unof-
fending American citizens . . . [m]en were murdered, houses were
burned, . . . and officers of the law shot down; and the State made
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23-10616 J ILL PRYOR , J., Dissenting 15
no successful effort to bring the guilty to punishment or afford pro-
tection or redress to the outraged and innocent.” Id. at 174–75 (in-
ternal quotation marks omitted). Concluding that “certain States
ha[d] denied to persons within their jurisdiction the equal protec-
tion of the laws,” Congress enacted § 1983 with “three main
aims[:]” first to “override certain kinds of state laws”; second to
“provide[] a [federal] remedy where state law was inadequate”; and
third “to provide a federal remedy where the state remedy, though
adequate in theory, was not available in practice.” Id. at 173–75.
In the century and a half § 1983 has been on the books, pri-
vate plaintiffs have relied on the statute to vindicate a host of fed-
eral rights. Section 1983 has provided the cause of action in major
cases addressing the right to free speech under the First Amend-
ment;7 the right to be free from unnecessarily cruel methods of
execution under the Eighth Amendment;8 the right to marriage
under the Fourteenth Amendment;9 the right to bear arms under
7 See Compl. at 4, 303 Creative LLC v. Elenis, 405 F. Supp. 3d 907 (D. Colo. 2019)
(No. 16-cv-2372), aff’d, 6 F.4th 1160 (10th Cir. 2021), rev’d, 143 S. Ct. 2298
(2023).
8 See Nance v. Ward, 142 S. Ct. 2214, 2219 (2022).
9 See Compl. at 7, Obergefell v. Wymyslo, 962 F. Supp. 2d 986 (S.D. Ohio 2013)
(No. 1:13-cv-501), rev’d sub nom. DeBoer v. Snyder, 772 F.3d 388 (6th Cir. 2014),
rev’d sub nom. Obergefell v. Hodges, 576 U.S. 644 (2015).
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16 J ILL Pryor, J., Dissenting 23-10616
the Second Amendment;10 and the Fourteenth Amendment’s pro-
hibitions on segregation and legislative malapportionment.11 As
these examples demonstrate, civil suits under § 1983 can further
important federal interests. See also Hubbard, 803 F.3d at 1312
(“Don’t misunderstand us. We are not saying that enforcing the
First Amendment is not an important federal interest or that it does
not protect important constitutional values. Obviously it is and
does.”). And sometimes discovery seeking to inquire “into the mo-
tivation for [legislative] acts” is part and parcel of that furtherance.
Id. at 1310 (emphasis removed) (internal quotation marks omitted).
This case helps show why. In Count IV, the plaintiffs alleged
that the Act violates the Equal Protection Clause of the Fourteenth
Amendment because the Act “was enacted for a racially discrimi-
natory purpose” and would cause racially disparate harm. Doc. 76
at 95. To state the obvious: equal protection claims brought against
the states under § 1983 alleging racial discrimination unquestiona-
bly may implicate important federal interests. After all, “the central
purpose of the Fourteenth Amendment was to eliminate racial dis-
crimination emanating from official sources in the States.”
McLaughlin v. Florida, 379 U.S. 184, 192 (1964). Said differently, the
thrust of the amendment was to override comity in the service of
a federal interest of enormous gravity: racial equality. And the
10 See Parker v. Dist. of Columbia, 478 F.3d 370, 374 (D.C. Cir. 2007), aff’d sub
nom. Dist. of Columbia v. Heller, 554 U.S. 570 (2008).
11 See Reynold v. Sims, 377 U.S. 533, 537 (1964) (legislative malapportionment);
Turner v. City of Memphis, 369 U.S. 350, 351 (1962) (racial segregation).
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23-10616 J ILL PRYOR , J., Dissenting 17
amendment itself anticipates that Congress will exercise authority
to enforce its provisions through legislation—like 42 U.S.C. § 1983.
See U.S. Const. amend. XIV, § 5.
These claims also frequently require courts to determine the
motivations for legislative behavior. When a legislative enactment
facially discriminates based on race, there is little need to probe the
legislature’s subjective motivations. We simply apply strict scru-
tiny. See Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 235–36
(1995). But the same is not true when a law is facially race neutral
but may have a disparate impact on a racial group. Under those
circumstances, a plaintiff must demonstrate “discriminatory racial
purpose” underlying the challenged law. Washington v. Davis, 426
U.S. 229, 241 (1976). This means that the plaintiff must “show that
the State’s decision or act had a discriminatory purpose and effect;”
otherwise, “their constitutional claims fail.” Greater Birmingham,
992 F.3d at 1321 (internal quotation marks omitted). Put another
way, the legislature’s subjective motivation is the case.
Although as a general matter it is “not consonant with our
scheme of government for a court to inquire into the motives of
legislators,” Tenney v. Brandhove, 341 U.S. 367, 377 (1951), such an
inquiry is exactly what a disparate impact claim requires. As the
Supreme Court has explained, “[d]etermining whether invidious
discriminatory purpose was a motivating factor demands a sensi-
tive inquiry into such circumstantial and direct evidence of intent
as may be available.” Vill. of Arlington Heights v. Metro. Hous. Dev.
Corp., 429 U.S. 252, 268 (1977). In making such a determination,
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18 J ILL Pryor, J., Dissenting 23-10616
“[t]he legislative or administrative history”—including “contempo-
rary statements by members of the decisionmaking body, minutes
of its meetings, or reports”—“may be highly relevant.” Id.
That is why we frequently consider detailed evidence about
what individual legislators said, did, or knew in the context of equal
protection suits under § 1983. See, e.g., League of Women Voters of
Fla., Inc. v. Fla. Sec’y of State, 66 F.4th 905, 931–32, 938–40 (11th Cir.
2023); Greater Birmingham, 992 F.3d at 1322–26; City of Carrollton
Branch of the N.A.A.C.P. v. Stallings, 829 F.2d 1547, 1551–53 (11th
Cir. 1987); Underwood v. Hunter, 730 F.2d 614, 618–20 (11th Cir.
1984), aff’d, 471 U.S. 222 (1985). So do the district courts within our
circuit. See, e.g., GRACE, Inc. v. City of Miami, No. 1:22-cv-24066, ---
F.Supp.3d ----, 2023 WL 3594310 at *5–6 (S.D. Fla. May 23, 2023);
Jacksonville Branch of NAACP v. City of Jacksonville, No. 3:22-cv-493,
635 F. Supp. 3d 1229, 1291–95 (M.D. Fla. 2022); City of S. Miami v.
DeSantis, 561 F. Supp. 3d 1211, 1271–80 (S.D. Fla. 2021), vacated on
jurisdictional grounds, 65 F.4th 631 (11th Cir. 2023). And, for that
matter, so does the Supreme Court. See Hunt v. Cromartie, 526 U.S.
541, 549 (1999); see also Reno v. Bossier Par. Sch. Bd., 520 U.S. 471,
489 (1997) (noting, in applying Arlington Heights to preclearance ac-
tion under Voting Rights Act, “considerations relevant to the pur-
pose inquiry include . . . the legislative or administrative history,
especially any contemporary statements by members of the deci-
sionmaking body” (emphasis added) (alterations adopted) (internal
quotation marks omitted)).
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23-10616 J ILL PRYOR , J., Dissenting 19
The majority opinion’s holding, which cuts off one source
of evidence of legislative intent (third-party discovery) in a whole
class of cases (those brought under 42 U.S.C. § 1983), amplifies a
worrying trend in this Court’s equal-protection jurisprudence. In
recent years, this Court has discounted certain forms of evidence
under the Arlington Heights inquiry—history, in particular. This
Court’s decision in Greater Birmingham took the view that a “histor-
ical background analysis” under Arlington Heights focuses “on the
specific sequence of events leading up to the challenged decision
and [does] not provid[e] an unlimited look-back to past discrimina-
tion.” Greater Birmingham, 992 F.3d at 1325 (internal quotation
marks omitted). More recently—and over my dissent—this Court
has admonished the district courts in our circuit that “the proper
scope of a historical inquiry” under Arlington Heights does not in-
clude “a state’s history of discrimination and socioeconomic dispar-
ities.” League of Women Voters, 66 F.4th at 923. Instead, courts must
“look at the precise circumstances surrounding the passing of the
law in question.” Id. (internal quotation marks omitted). More
broadly, we have remarked that “determining the intent of the leg-
islature is a problematic and near-impossible challenge.” Greater
Birmingham, 992 F.3d at 1324. So much so that equal protection
plaintiffs who lack “smoking gun evidence,” id. at 1325 (internal
quotation marks omitted), of an intent to discriminate frequently
lose in our Court—even when they have prevailed in the district
courts, see League of Women Voters, 66 F.4th at 918–19.
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20 J ILL Pryor, J., Dissenting 23-10616
Today, the majority opinion places equal protection plain-
tiffs within our circuit in a double bind. Under our existing prece-
dent, they must meet the increasingly difficult task of producing
persuasive evidence of legislative intent to discriminate. And they
must do so by focusing on the specific chain of events leading to
the enactment of the challenged legislation. The majority opinion
adds that—no matter the circumstances—they are not entitled to
discovery into “legislative acts or the motivation for actual perfor-
mance of legislative acts.” Maj. Op. at 7 (internal quotation marks
omitted). In essence, the majority opinion forces a whole category
of plaintiffs, tasked with an already difficult standard of proof, to
make their cases without the tools ordinarily available to civil liti-
gants.12
12 I do not mean to suggest that equal protection plaintiffs will be totally un-
able to obtain materials to support their cases. When circumstances allow,
they may be able to subpoena third parties sufficiently removed from the leg-
islative process to fall outside the scope of the privilege. See Page v. Va. State
Bd. of Election, 15 F. Supp. 3d 657, 662–64 (E.D. Va. 2014) (collecting examples).
Likewise, state law or legislative practice may also effectively guarantee access
to some relevant documentary materials. See Fla. Const. art. I, § 24. And, of
course, legislators may waive or decline to invoke their privilege. See Fed. R.
Civ. P. 45(d)(3)(A)(iii). But the district court took into account “the availability
of other evidence” when it determined that the privilege should yield in this
case. Doc. 100 at 10. The majority opinion’s rule means that § 1983 plaintiffs
are not entitled to documentary discovery against legislators ever—even
when no other route is available to discover evidence to test their claims.
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23-10616 J ILL PRYOR , J., Dissenting 21
The district court charted a better course. It recognized that
“some civil cases implicate federal interests that are at least as im-
portant—if not more important—than the enforcement of federal
criminal statutes, where the privilege undoubtedly gives way.”
Doc. 100 at 9; accord Gillock, 445 U.S. at 373 (“[W]here important
federal interests are at stake, as in the enforcement of federal crim-
inal statutes, comity yields.”). It then applied a balancing test and
determined this was such a case.
Under Federal Rule of Evidence 501, that was appropriate.
Rule 501 instructs us—“United States courts”—to interpret the
scope of federal common-law privileges (and thus the privilege
held by the legislators) “in the light of reason and experience.” Fed.
R. Evid. 501. Reason suggests that if comity yields to the federal
interest in enforcing federal criminal statutes against state legisla-
tors, it can also yield to other federal interests of comparable im-
portance. Judicial experience teaches that § 1983 cases can both in-
volve important federal interests and require inquiry into legisla-
tive motivations.
In Gillock, faced with determining whether a federal interest
it had identified justified overcoming the legislative privilege, the
Supreme Court looked to its resolution of a similar dilemma in the
context of the executive privilege. Gillock, 445 U.S. at 373 (“We rec-
ognize that denial of a privilege to a state legislator may have some
minimal impact on the exercise of his legislative function; how-
ever, similar arguments made to support a claim of Executive priv-
ilege were found wanting in United States v. Nixon when balanced
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22 J ILL Pryor, J., Dissenting 23-10616
against the need of enforcing federal criminal statutes.” (internal
citation omitted)). The district court did, too. It borrowed a balanc-
ing test applicable to the deliberative-process privilege—an execu-
tive privilege designed to protect the “process by which govern-
mental decisions and policies are formulated” and thus “enhance
the quality of agency decisions by protecting open and frank dis-
cussion among those who make them within the Government.”
Dep’t of Interior v. Klamath Water Users Protective Ass’n, 532 U.S. 1, 8–
9 (2021) (internal citation and quotation marks omitted). It also
cited precedent recognizing the differences between these two
privileges and carefully adapting the test to better suit the purposes
of the legislative privilege. Doc. 100 at 9 (citing Bethune-Hill v. Va.
State Bd. of Elections, 114 F. Supp. 3d 323, 338 (E.D. Va. 2015)). And,
consistent with Rule 501’s command to interpret privileges in light
of judicial experience, the district court applied the same balancing
test to evaluate claims of legislative privilege as have district courts
in numerous other cases.13
In adopting an untested, per se rule, the majority opinion crit-
icizes the district court’s application of a balancing test as “manip-
ulable”—as if balancing tests were not commonplace in our law.
13 See, e.g., S.C. State Conf. of NAACP v. McMaster, 584 F.Supp.3d 152, 163
(D.S.C. 2022); League of Women Voters of Fla., Inc. v. Lee, 340 F.R.D. 446, 456
(N.D. Fla. 2021); Church v. Montgomery Cnty., 335 F. Supp. 3d 758, 767 (D. Md.
2018); Benisek v. Lamone, 241 F. Supp. 3d 566, 575 (D. Md. 2017) (Niemeyer, J.);
Bethune-Hill, 114 F. Supp. 3d at 338; Favors v. Cuomo, 285 F.R.D. 187, 217
(E.D.N.Y. 2012); Rodriguez v. Pataki, 280 F. Supp. 2d 89, 100–01 (S.D.N.Y.
2003).
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23-10616 J ILL PRYOR , J., Dissenting 23
Maj. Op. at 11. A balancing test is appropriate here. Although
Gillock did not adopt any particular test, the Supreme Court bal-
anced the strength of the federal interest in the enforcement of
criminal statutes against the comity interest protected by the priv-
ilege. See Gillock, 445 U.S. at 373 (“[R]ecognition of an evidentiary
privilege for state legislators for their legislative acts would impair
the legitimate interest of the Federal Government in enforcing its
criminal statutes with only speculative benefit to the state legisla-
tive process.”).
The breadth of our construction of the legislative privilege
in Hubbard (namely, that whenever the relevant purpose of a doc-
ument request is to discover “the subjective motivations of those
acting in a legislative capacity,” the privilege applies) weighs
against a per se rule, too. Hubbard, 803 F.3d at 1311. As we have
interpreted it, the legislative privilege reaches intrusions into the
legislative process both petty and great. But the majority opinion
draws no distinction between them. The majority opinion would
treat alike the legislature’s interest in avoiding a subpoena seeking
the production of the purely factual record before it when it made
a legislative decision and one seeking to depose sitting legislators
to interrogate their motivations in undertaking their legislative du-
ties. Of course, each discovery request infringes on at least some of
the interests underlying the legislative privilege and thus properly
triggers a privilege analysis. Id. But the majority opinion flattens
the analysis that follows into a single rule: the legislators win. The
majority opinion does so even though sometimes the legislative in-
terest in avoiding discovery will be minute (and thus appropriately
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24 J ILL Pryor, J., Dissenting 23-10616
overcome) and other times it will be great (and thus appropriately
undisturbed). Respectfully, that defies both “reason and experi-
ence.” Fed. R. Evid. 501.
By contrast, the factors the district court considered are sen-
sible ones. They seek to approximate and weigh both the degree to
which the discovery would advance an important federal interest
and the degree to which it would offend comity. They are also
likely to vary significantly from case to case (yet another reason to
avoid a one-size-fits-all approach to claims of legislative privilege).
For instance, the district court considered “the availability of other
evidence”—acknowledging that where a § 1983 plaintiff can turn
to other sources to explore legislative motive, breaching the privi-
lege is inappropriate. Doc. 100 at 10. It considered the relevance of
the evidence likely to be obtained by breaching the privilege. That
inquiry was appropriate because although sometimes “the subjec-
tive motivations of” a bill’s “leading sponsors are highly relevant,”
id., in other instances they are not relevant at all, see, e.g., Hubbard,
803 F.3d at 1312 (“[W]hen a statute is facially constitutional, a plain-
tiff cannot bring a free-speech challenge by claiming that the law-
makers who passed it acted with a constitutionally impermissible
purpose.”). The district court also considered the seriousness of the
litigation, concluding that because the plaintiffs “are seeking to vin-
dicate public right[s] that impact thousands of faculty and stu-
dents,” Doc. 100 at 11, their claim involved federal interests similar
in importance to those “at stake . . . in the enforcement of federal
criminal statutes,” Gillock, 445 U.S. at 373. Finally, the district court
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23-10616 J ILL PRYOR , J., Dissenting 25
considered “the legislative privilege’s purpose.” Doc. 100 at 12. Be-
cause it considered this factor, the district court was able to distin-
guish between “the most egregious intrusions into the legislative
process,” id. at 13, such as requests for the communications of in-
dividual legislators and their staff, and those that would do much
less to offend principles of comity, such as requests for factual in-
formation available to the legislators. The majority opinion flatly
prohibits district courts from considering any of this.
To be clear, I do not suggest swapping the majority opin-
ion’s per se rule for another. My view is much more modest: In rare
instances, the interest in enforcing federal law and the Constitution
will justify allowing § 1983 plaintiffs to seek at least some discovery
from state legislators. And a balancing test is a perfectly sensible
way to identify these instances. This approach does not mean that
whenever legislative intent is an element of a plaintiff’s claim, the
privilege will yield. Not at all. Even when legislative intent is highly
relevant, careful balancing may compel the conclusion that the
privilege holds—such as when the form of discovery the plaintiff
seeks is particularly intrusive or the plaintiff has other ways to ob-
tain similar information.
The majority opinion portrays its absolutist approach as the
logical result of precedent. But this is not so. Despite its startling
reach, the majority opinion’s holding lacks substantial support. Of
the decisions it cites, almost none actually endorses a holding that
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26 J ILL Pryor, J., Dissenting 23-10616
the legislative privilege never yields in § 1983 cases.14 And no prec-
edent binding on us requires this outcome. The majority opinion’s
holding is an outlier.
Since Gillock, “the Supreme Court has not set forth the cir-
cumstances under which the privilege must yield” to other federal
interests. Lee v. City of L.A., 908 F.3d 1175, 1187 (9th Cir. 2018). And
neither have we. The closest brush this Court has had with the
question came in Hubbard. Hubbard involved a First Amendment
retaliation claim against Alabama officials under 42 U.S.C. § 1983.
Hubbard, 803 F.3d at 1301. Although we acknowledged that as a gen-
eral matter “enforcing the First Amendment” constitutes “an im-
portant federal interest,” we found that the underlying lawsuit in
Hubbard lacked merit. Id. at 1312. So, in that particular case, “the
specific claim asserted [did] not legitimately further an important
federal interest” and the privilege did not yield. Id. We reserved the
question of “whether, and to what extent, the legislative privilege
would apply to a subpoena in a private civil action based on a dif-
ferent kind of constitutional claim”—such as a legally sufficient
14 The sole exception is the Fifth Circuit’s recent decision in La Union Del
Pueblo Entero, 68 F.4th at 237–40. That decision is unpersuasive. Like the ma-
jority opinion here, the Fifth Circuit rested its decision on the flawed premise
that because state legislators hold immunity from liability in § 1983 actions
under Tenney, they must also hold an absolute privilege against third party
discovery in § 1983 actions against other state officials. See id. at 239–40 (“[A]
state legislator’s common-law absolute immunity from civil actions precludes
the compelled discovery of documents pertaining to the state legislative pro-
cess[.]”). But, as I address in my discussion of the majority opinion’s (mis)use
of Tenney below, there is simply no reason why that must be so.
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23-10616 J ILL PRYOR , J., Dissenting 27
one. Id. at 1312 n.13. That is why the legislators concede that this
Court has “had no occasion to address whether the evidentiary
privilege . . . is absolute” in our prior cases. Br. of Appellants at 13.
The majority opinion’s attempts to look beyond Gillock and
Hubbard for support are unpersuasive. The cases it cites do not sup-
port a holding that legislative privilege never yields in § 1983 cases.
Take one example. The majority opinion puts significant
stock in the Supreme Court’s decision in Tenney v. Brandhove and
later statements in Gillock and Hubbard repeating Tenney’s holding.
See Gillock, 445 U.S. at 372; Hubbard, 803 F.3d at 1312. The majority
opinion reasons as if Tenney (and its treatment by Gillock) resolves
this case. See Maj. Op. at 11 (“In the light of Gillock and Tenney, we
cannot except civil-rights actions from the application of the legis-
lative privilege.”). But as the Supreme Court explained in Gillock,
“the issue [in Tenney] was whether state legislators were immune
from civil suits for alleged violations of civil rights under 42 U.S.C.
§ 1983,” not whether they could be required to turn over evidence
as third parties. Gillock, 445 U.S. at 371. Tenney was an action in
which a plaintiff sued an individual legislator, seeking money dam-
ages under § 1983 for allegedly unconstitutional legislative activity.
Tenney, 341 U.S. at 371.
In concluding that the legislator was immune from such an
action, the Tenney court warned against confusing its holding on im-
munity from suit with one addressing the scope of third-party evi-
dentiary privileges: “We have only considered the scope of the
privilege as applied to the facts of the present case.” Id. at 378. And
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28 J ILL Pryor, J., Dissenting 23-10616
it cautioned that “privilege in such a case deserves greater respect
than where . . . the legislature seeks the affirmative aid of the courts
to assert a privilege.” Id. Under the rubric of comity, drawing such
a distinction makes good sense. Compared to affirmatively subject-
ing individual state legislators to liability for discharging legislative
functions, “[t]he absence of a judicially created evidentiary privi-
lege for state legislators is not . . . comparable intervention by the
Federal Government into essential state functions.” Gillock, 445
U.S. at 371.
Consider a second example of the majority opinion’s slip-
pery use of precedent. The majority opinion cites language from
the D.C. Circuit’s decision in Brown & Williamson Tobacco Corp. v.
Williams stating that “[w]e do not perceive a difference in the vigor
with which the privilege protects against compelling a congress-
man’s testimony as opposed to the protection it provides against
suit.” 62 F.3d 408, 421 (D.C. Cir. 1995). But the privilege at issue in
Williams was not the federal common-law privilege against discov-
ery held by state legislators under Federal Rule of Evidence 501, it
was the constitutional privilege contained in the Speech or Debate
Clause of Article I. U.S. Const., art. I, § 6, cl. 1. I have already ex-
plained the foundational differences between that privilege and this
one. So has the Supreme Court. See Gillock, 445 U.S. at 366–71.
And here is a third example. The majority opinion claims
that four of our sister circuits—the first, the fifth, the eighth, and
the ninth—“have rejected [the] approach” taken by the district
court. Maj. Op. at 11 (citing Am. Trucking Ass’ns v. Alviti, 14 F.4th
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23-10616 J ILL PRYOR , J., Dissenting 29
76, 88 (1st Cir. 2021); La Union Del Pueblo Entero, 68 F.4th at 239–40;
In re N.D. Legis. Assembly, 70 F.4th 460, 465 (8th Cir. 2023); Lee, 908
F.3d at 1186). But only one of these courts (the Fifth Circuit) has
actually held that the legislative privilege is “insurmountable” in
section 1983 claims. Id. at 10. In Lee, the Ninth Circuit held that “the
factual record . . . [fell] short of justifying the substantial intrusion
into the legislative process” of deposing legislators. Lee, 908 F.3d at
1188 (internal quotation marks omitted). But it did not shut the
door on all discovery in the way the majority opinion does today.
See id. (acknowledging that “extraordinary circumstances . . . might
justify an exception to the privilege” (internal quotation marks
omitted)). The same goes for the First Circuit in Alviti. Alviti con-
firmed that “the mere assertion of a federal claim” was not “suffi-
cient” to breach the privilege (a proposition with which the district
court here agreed). Alviti, 14 F.4th at 88. But the First Circuit pre-
served the possibility that “there might be a private civil case in
which state legislative immunity must be set to one side because
the case turns so heavily on subjective motive or purpose.” Id. It
reasoned that the claim at issue, which arose under the Dormant
Commerce Clause, did not depend on “proof of the subjective in-
tent of state lawmakers,” and so the need for discovery could not
“warrant setting aside the privilege.” Id. at 88–89. And so too for
the eighth, which acknowledged that the underlying case before it
did “not even turn on legislative intent” and so could not qualify as
an ‘“extraordinary instance[]’ in which testimony might be com-
pelled from a legislator.” In re N.D. Legis. Assembly, 70 F.4th at 464–
65 (quoting Arlington Heights, 429 U.S. at 268). Citing Alviti, the
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30 J ILL Pryor, J., Dissenting 23-10616
Eight Circuit also observed that “[a]ny exception to legislative priv-
ilege that might be available in a case that is based on a legislature’s
alleged intent is thus inapplicable.” Id. at 465.15 It did not shut the
door entirely.
At the end of the day, only the majority opinion is responsi-
ble for this worrisome development in our precedent. I fear its
holding will hamper efforts to enforce constitutional limits on state
behavior and thus impair important federal interests. Gillock gives
us the authority to avoid exactly this outcome: “where important
federal interests are at stake[,] . . . comity yields.” Gillock, 445 U.S.
at 373.
* * *
A conclusion that the district court properly qualified the
privilege invoked by the legislators ends this appeal. The legislators
staked their appeal on the argument that the privilege never yields
in cases arising under § 1983; they declined to challenge the district
court’s order on any other grounds. The majority rewards this
risky strategy and delivers the legislators a grand slam. I would hold
that the legislative privilege is not absolute in § 1983 cases—and
15 To be sure, the Eight Circuit wrote disapprovingly of the balancing test
employed by the district court here. But it did not hold, as the majority opin-
ion does, that legislative privilege is never overcome in suits arising under
§ 1983.
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23-10616 J ILL PRYOR , J., Dissenting 31
nothing more. Because I would thus affirm the district court’s or-
der denying in part the legislators’ motion to quash, I respectfully
dissent.
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