Rep. Laurel Libby, R-Auburn, stands on March 20 during debate on the House floor over whether to suspend censure rules to allow her to speak on her proposed amendments. Joe Phelan/Kennebec Journal

A Maine lawmaker is asking a federal judge to immediately restore her ability to vote in the Legislature despite being censured in the House over social media posts she made that identified a transgender student-athlete.

Rep. Laurel Libby, R-Auburn, sued House Speaker Ryan Fecteau, D-Biddeford, on March 11 after she was stripped of her ability to speak and vote on the House floor in a party-line vote in late February.

During the vote, Democrats agreed that Libby had violated House ethics rules by publicly identifying and endangering a transgender girl at a sporting event, using the student’s picture and first name on Facebook. Her posts garnered widespread, national attention and, Fecteau’s attorneys pointed out, threats of harm to the student.

Libby has argued the censure violates her First and 14th Amendment rights by punishing her for “protected speech outside the walls of the State House.” She believes she is being silenced by the Democratic majority over her criticism that Maine’s transgender athlete policy is unfair.

Fecteau has said the censure would be removed if Libby apologizes to the House, but Libby has said she will not do so.

The case relies on unprecedented constitutional arguments that likely won’t get an immediate ruling. But her attorney argued at a hearing over Zoom on Friday in front of U.S. District Judge Melissa Dubose that they have a more urgent concern: the impact of Libby’s censure on her constituents who don’t have someone voting on their behalf in the Legislature.

“District 90 now stands voiceless on the House floor — unable to vote, unable to speak, and unable to be represented on matters ranging from an $11 billion state budget to local priorities impacting working families,” Libby wrote in an email before the hearing. A spokesperson for Fecteau declined to respond, citing the pending litigation.

Libby is joined in her lawsuit by six constituents. Their lawyer, Patrick Strawbridge, said the House rules for censure were illegally applied to Libby for actions outside the House that didn’t have any effect on its proceedings.

“This was not like some sort of violent or obstructive act,” Strawbridge argued. “This was speech that occurred outside the House.”

He argued the censure vote was a way to circumvent other procedures the House could have used that come with safeguards and due process for Libby and her constituents, like expulsion or a recall.

Strawbridge said he was troubled that the censure could last until the end of next year.

“They are stuck in limbo for this session, and perhaps the next session,” Strawbridge said in court. “I think the slippery slopes here are staring the court right in the face.”

Lawyers from the Office of the Maine Attorney General, who are representing Fecteau, said in court Friday that everything he did was a legislative act, and that he’s entitled to legislative immunity that protects against liability save for the most extreme circumstances.

Assistant Attorney General Kimberly Patwardhan said Libby still maintains other privileges as a legislator, including the ability to participate in committees and introduce bills. Patwardhan also said that Libby agreed to the House’s rules when she was sworn in, and she should have known this was a risk for her conduct.

Dubose, the judge pushed back on that, given that Libby’s posts were made outside the State House. She asked hypothetically if this means Libby and other lawmakers “don’t have the luxury of being able to have an opinion.”

The judge also questioned if the House ethics rule were being selectively applied, pointing to other hypothetical lawmakers who might post pictures of children for other causes.

“I think that we always expect better conduct from our elected officials than members of our general citizenry,” Patwardhan said. The censure wasn’t about Libby’s opinions, only that she put a child at risk, Patwardhan said.

Dubose did not immediately make a ruling and did not give an indication of when he would issue one.

In a phone call after the hearing, Libby said she was taken aback by the state’s arguments that she doesn’t have a “personal First Amendment right to vote” on the House floor. She said her prolonged inability to vote on legislation, including the biennial budget, would set a terrible precedent.

“I think that my constituents, when they think of me representing them, they’re thinking of my ability to vote and speak on the floor,” Libby said in a phone call. “The inability to speak to that legislation, especially in the minority, where it may not change the outcome but can at least register the opinion of my district, is crucial.”