[Eugene Volokh] Montana legislator threatened with prosecution for talking about ethics complaint against governor

Montana state Rep. Brad Tschida filed an ethics complaint against Gov. Steve Bullock, claiming that the governor “has been illegally relying upon a state-paid attorney to represent him in [an] ethics matter.” In response, Montana Commissioner of Political Practices Jonathan Motl has threatened to impose “severe penalties” on Rep. Tschida, on the theory that the disclosure was a crime. Indeed, Commissioner Motl has emailed over 90 legislators “reminding” them “that ethics complaints are confidential by law”; Mont. Code Ann. § 2-2-136(D) indeed provides that “The complainant … shall maintain the confidentiality of the complaint … until the commissioner issues a decision.”

But how can this be? A representative (or anyone else) files a complaint alleging that a government official has committed misconduct — and he can’t talk about the complaint?

Well, it can’t be, as the U.S. Court of Appeals for the Ninth Circuit (which covers Montana) has expressly held in Lind v. Grimmer (9th Cir. 1994), striking down a similar Hawaii law: “to the extent Haw.Rev. Stat. § 11-216(d) prevents an individual from disclosing the fact that he filed a complaint with the Campaign Spending Commission, it is unconstitutional.” The Third Circuit took the same view in Stilp v. Contino, 613 F.3d 405 (3d Cir. 2010), striking down a similar ban: “to the extent [the statute] prohibits a complainant from disclosing his own complaint and the fact that it was filed, unconstitutionally constrains political speech.” See also Cox v. McLean (D. Mont. 2014); In re Warner (La. 2009); and Petition of Brooks (N.H. 1996).

And those court decisions are quite right. The government sometimes has authority to restrict people from revealing information that is disclosed to them in confidence by the government. But there’s no basis for restricting people from publicizing accusations that they have conveyed to the government. And indeed, publicizing such accusations is often important political speech, whether in criticizing the person who is being accused, or in criticizing the commission that receives the accusation — for instance, if the complainant wants to argue that the commission is being slow or biased in its treatment of the accusation. One can imagine some restrictions imposed by the government as employer on government employees who use internal complaint mechanisms, but the Montana statute applies to all complainants, and in any event the government-as-employer rules don’t apply to restrictions on legislators — see Bond v. Floyd (1966).

Fortunately, Tschida — represented by Montana lawyer Matthew Monforton (who won the Cox v. McLean case cited above) — is challenging the speech prohibition and Commissioner Motl’s threat to enforce that prohibition, both on First Amendment grounds and on the grounds that the communications with his fellow legislators were protected by the Montana Constitution’s Speech or Debate Clause. I look forward to seeing the government’s response.

Here, incidentally, is the story behind the ethics complaint, as recounted in the motion; please recall that these are just allegations (some paragraph breaks added):

On or about September 19, 2016, Representative Tschida filed an ethics complaint against Governor Steve Bullock and a member of his cabinet, Commerce Director Meg O’Leary. The complaint arose from Governor Bullock’s illegal use of a state-owned aircraft to fly him and Director O’Leary to Missoula in August 2014 for purposes of attending a concert performed by Paul McCartney.

The complaint alleges Governor Bullock and Director O’Leary attended the concert at the invitation of University of Montana President Royce Engstrom and Mary Engstrom, who invited Governor Bullock “and a guest to join them in the President’s Box to watch Sir Paul McCartney as he performs his ‘Out There’ concert.” The use of the state-owned aircraft by Governor Bullock and Director O’Leary and their acceptance of seating in the President’s Box to attend the concert constituted illegal gifts under Montana law. After Representative Tschida filed the ethics complaint, Defendant Jonathan Motl ordered him not to disclose the existence of the complaint.

On September 23, 2016, Andrew Huff, who serves as Legal Counsel to Governor Bullock and is a state-paid attorney, appeared teleph