PROVIDENCE — A federal judge last week ruled that legislative immunity protects Warwick officials accused of violating a critic’s First Amendment rights, but the critic’s lawsuit can proceed against the city of Warwick.
The American Civil Liberties Union of Rhode Island filed the First Amendment lawsuit in August 2023 after Rob Cote was removed by a police officer after attempting to speak during the public comment period of a Warwick City Council meeting.
“I’d like to congratulate Councilwoman Travis for another front page of the Providence Journal,” Cote said, referring to a story about how then-Councilwoman Donna Travis “took the lot next to her house in a shady deal.”
Travis, who was presiding over the meeting as council president pro-tempore, cut him off and said, “You will be talking about city government or you’ll be leaving.” Cote said he did plan to talk about the government, but Travis had an officer escort him out of the meeting.
The ACLU filed the lawsuit, accusing Warwick City Council members of violating Cote’s First Amendment rights to free speech and to petition the government for redress of grievances. The defendants filed a motion to dismiss the case.
In an order last week, Senior US District Court Judge William E. Smith agreed to dismiss the City Council members in their personal capacities but not their professional capacities, reducing the lawsuit to a case against the city.
“Travis’s act indeed may have violated Cote’s constitutional rights, may have evinced poor judgment, and may even have been done in service of an inappropriate motive or intent,” Smith wrote.
“But legislative immunity ‘is not forfeited simply because the activities, if unprotected, might violate a plaintiff’s constitutional rights,’ ” he wrote, citing a prior ruling.
Ultimately, if Travis “overstepped the boundary of sound judgment,” she should be held accountable not under federal law “but at the ballot box,” Smith wrote, citing another ruling.
In a footnote, the judge said, “It appears that Travis was, in fact, called to account for her alleged actions.” He noted Travis decided not to seek reelection and in 2024 agreed to plead no contest to a misdemeanor charge of filing a false document related to the story Cote had attempted to address at the City Council meeting.
Smith said the US Supreme Court has held that local legislators are entitled to “absolute immunity” for their legislative activities, so the key question in this case is whether Travis’s decision to boot from the meeting Cote represented “legitimate legislative activity.”
“Facing this difficult question, the court believes that both precedent and prudence favor the conclusion that Travis’s action ... was within the sphere of legitimate legislative activity,” Smith wrote. He cited a City Council rule that allows council president to “preserve decorum and order.”
Last week, Cote criticized the judge’s ruling and said it could have implications for the rest of Rhode Island.
“It’s really bad news. This can be interpreted so broadly,” Cote said. “If you get up in front of your town council or school committee meeting, and they don’t like the content of what you are speaking about, they can remove you without ramifications. Your First Amendment rights are gone. I guess we are in Moscow.”
But Steven Brown, executive director of the ACLU of Rhode Island, said the lawsuit will proceed against the city even though City Council members can’t be held liable in an individual capacity.
“The suit remains quite alive and we will be pursuing the matter,” he said. “They are not off the hook by any means.”
Brown emphasized the significance of the litigation.
“The ability of members of the public to speak to their representatives on topics of public interest is crucial to a democratic form of government,” he said. “Mr. Cote wanted to talk about something that clearly involved city business and something extremely important, so barring him from being able to talk about it undermined the whole point of the public comment period.”
An attorney representing Warwick and City Council members, Marc DeSisto, declined to comment.
Edward Fitzpatrick can be reached at edward.fitzpatrick@globe.com. Follow him @FitzProv.