“I understand the threats from members of the majority that you want to arrest me, you want to put me in jail with the state police, and all that sort of stuff…Mr. President, and if you send the state police to get me, Hell’s coming to visit you personally.”

— Senator Brian Boquist on the Senate floor, June 19, 2019.

“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.”

— Senator Brian Boquist to reporters, June 19, 2019.

Those are the statements with which U.S. District Judge Michael McShane began his ruling in Boquist’s First Amendment lawsuit against then-Senate President Peter Courtney, D-Salem, and Sens. Floyd Prozanski and James Manning, both D-Eugene.

Such statements are not fighting words. They “do not constitute a true threat,” McShane said, contrary to claims by some Democrats. Even if unsavory, they are free speech protected by the First Amendment.

“The Court notes that protected speech is not necessarily meaningful or lofty speech,” the judge added in a footnote.

Now a registered Independent, Boquist at the time was a Republican senator from rural Polk County. Nearly three weeks after he uttered his incendiary remarks, the Senate Conduct Committee ordered him to provide 12 hours’ notice before entering the State Capitol, ostensibly so security could be increased. However, McShane said that requirement “served no legitimate purpose other than to retaliate against Plaintiff after he engaged in protected speech.”

The judge wrote, “While this Court does not seek to minimize the real fear that certain members of staff may have felt, in the wider context, the negative reactions of a small number of partisan listeners pales in light of the general consensus that Plaintiff’s statements were political hyperbole.”

In siding with Boquist, McShane awarded him “reasonable attorney fees” and one dollar in damages. The state Department of Administrative Services would be responsible for paying Boquist, according to Kristina Edmunson, speaking Thursday on behalf of the Department of Justice. The DOJ, which represented the legislators, has not decided whether to appeal McShane’s decision.

McShane noted that both sides in the case were “wedded to the positions of their performative politics.” His scathing 25-page opinion, issued Monday, underscores why the Founders wrote a government constitution but then added the Bill of Rights to protect citizens from that government.

It is not the majority’s right to decide which words are tolerable in political discourse. Indeed, I would argue that a prime obligation of the majority is to protect the rights of the minority, an obligation that too often gets lost in the Oregon Legislature.

Regarding Boquist’s comment on the Senate floor to President Courtney, McShane wrote, “Although Plaintiff’s comment was bold and perhaps unsavory, it does not resemble the type of egregious insult that would provoke an ‘immediate violent response.’”

Discussing Boquist’s later comment during a television interview, in which the senator said Oregon State Police should “send bachelors” if they come to arrest him for walking out, McShane quoted from the U.S. Supreme Court’s landmark ruling in New York Times v. Sullivan in 1964: “Although some viewers may have found Plaintiff’s political puffery distasteful, his comments were in line with our nation’s ‘commitment to the principle that debate on public issues shall be uninhibited…[and] may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.’”

In rejecting the defendants’ claim of judicial immunity, McShane also said, “[T]he Conduct Committee does not even remotely resemble a neutral and independent body performing an adjudicatory function.”

This is not to excuse Boquist’s comments as appropriate under the heated circumstances of Republican senators walking out. But what the Conduct Committee, chaired by Prozanski, did was worse. According to McShane, “This entire process appears to be (a) publicity stunt by a committee with no authorization seeking to impose a sanction against a member that it never intended to enforce.”

That is a political reality which should worry Oregonians.

Update on self-service gasoline: Last week’s Capital Chatter about the self-serve legislation drew intense interest. Here is an update.

Gov. Tina Kotek, who is in Eastern Oregon on her One Oregon Listening Tour, still has not indicated when she might act on the measure, House Bill 2426. Kotek and first lady Aimee Kotek Wilson visited communities in Malheur and Baker counties on Wednesday.

The governor has signed 386 bills from the just-concluded 2023 Legislature. She has 229 bills left to sign, veto or allow to become law without her signature.

So far, she has received 2,761 emails urging her to sign the self-serve bill and 2,453 against signing.

“The Court notes that protected speech is not necessarily meaningful or lofty speech.” 

U.S. District Judge Michael McShane