From Taibbi v. Kamlager-Dove, decided Monday by Judge Evelyn Padin (D.N.J.):
Representative Kamlager-Dove … is … the Ranking Member of the South and Central Asia Subcommittee of the House Foreign Affairs Committee …. The Subcommittee held a hearing on April 1, 2025, titled “Censorship Industrial Complex: The Need for First Amendment Safeguards at the State Department” …. Taibbi was invited to testify at the Hearing. At the start of the Hearing, Representative Kamlager-Dove delivered her prepared remarks, which included the following statements:
Thank you, Mr. Chair, and thank you for being here for our first South and Central Asia Subcommittee hearing. I look forward to working with the Chair in a bipartisan way on the critical issues we are charged with overseeing.
Unfortunately, we’re not having a hearing about any of those. Instead, this Subcommittee is wasting taxpayer time and resources on the fifth such hearing Republicans have held across multiple committees on the so-called “censorship-industrial complex.”
The majority is relitigating a made-up conspiracy theory about a part of the State Department that no longer exists to distract from the dumpster fire foreign policy this Administration is pursuing—and elevating a serial sexual harasser as their star witness in the process.
The same day of the Hearing, Representative Kamlager-Dove reposted a video of the Statements on two social media platforms: X (formerly Twitter) and BlueSky. Both posts contained the same statement: “After this, Republicans gave Matt Taibbi time to defend himself. It’s telling that he didn’t.” … Representative Kamlager-Dove also posted the Statements on her official House.gov website….
Taibbi alleges that the “serial sexual harasser” comment by Representative Kamlager-Dove was directed at him and that it is “demonstrably false” and “made with actual malice.” Taibbi claims that the republications of the Statements—the X, BlueSky, and Website Posts—were defamatory ….
Members of Congress, like other employees, are covered by the Westfall Act, under which, if “the defendant qualifies as an ’employee of the government,’ and the Attorney General certifies that the employee ‘was acting within the scope of his office or employment,'” the U.S. government is substituted as defendant for the employee. And though the AG’s certification is reviewable, here the court agreed that “Representative Kamlager-Dove’s statements were within the scope of her employment.” Some excerpts:
Here, Taibbi challenges Representative Kamlager-Dove’s statements “made during a congressional hearing in Washington, D.C.” which allegedly “became actionable defamatory statements” when they were “republished … on social media sites.” Taibbi argues that “crowing to voters, and self-aggrandizement to voters on X and Bluesky is not official congressional work but partisan communication.” Taibbi claims the Statements were republished to “bolster [Representative Kamlager-Dove’s] political standing.”
Representative Kamlager-Dove’s Statements and republications, however, are precisely the kind of conduct that is “a central part of the job for members of Congress.” Indeed, a “primary obligation of a [m]ember of Congress in a representative democracy is to serve and respond to his or her constituents.” As the Ranking Member of the Subcommittee holding the Hearing, Representative Kamlager-Dove’s remarks mentioned “taxpayer time and resources” and “foreign policy”—topics that are important to members of Congress and that are top-of-mind for their constituents.
Republishing the statements online does not change the analysis. Taibbi claims that the “republications on X, BlueSky, and [Representative Kamlager-Dove’s] website were not legislative work, [and] occurred outside the legislative setting.” But members of Congress routinely engage with the public on social media and on the internet as part of their jobs. As Taibbi concedes, Representative Kamlager-Dove was simply “talking to voters on Twitter.” …
As a member of Congress, Representative Kamlager-Dove has a “proper duty” to “look diligently into every affair of government and to talk much about what [she] sees.” And she did so at the Hearing. In addition to the allegedly defamatory statement, Representative Kamlager-Dove discussed taxes, foreign policy, and immigration policy. She explicitly stated political disagreement with the opposing party in her social media posts, writing: “Republicans gave Matt Taibbi time to defend himself. It’s telling that he didn’t.” Political statements by members of Congress—such as Representative Kamlager-Dove’s here—are made within their scope of employment.
Representative Kamlager-Dove’s statements “were calculated to serve the interests of [her] constituents (i.e., employers) by informing them of [her] views regarding” certain issues, laws, and policies. Put simply, Representative Kamlager-Dove’s statements were “out of an interest in serving the public [and her constituents]—even if [s]he was partially motivated” by other political reasons.
So the U.S. government was properly substituted for Rep. Kamlager-Dove—and that doomed Taibbi’s defamation claim, because the Federal Tort Claims Act, under which the U.S. government waived its sovereign immunity as to many tort claims, “expressly excludes defamation claims from the federal government’s immunity waiver.” So because of the Westfall Act, Taibbi loses against Rep. Kamlager-Dove; and because of the FTCA exclusion of defamation claims, he loses against the federal government.
Note that the Speech or Debate Clause bars defamation lawsuits over statements made in Congressional hearings or related official proceedings. It by itself doesn’t cover members’ republication of those statements on social media.
Stephen Terrell of the DoJ Civil Division represents defendant.
