[PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 23-10616

____________________

LEROY PERNELL, 

DANA THOMPSON DORSEY, 

SHARON WRIGHT AUSTIN,

SHELLEY PARK, 

JENNIFER SANDOVAL, et al.,

Plaintiffs-Appellees,

versus

FLORIDA BOARD OF GOVERNORS OF THE STATE 

UNIVERSITY,

et al.,

Defendants,

USCA11 Case: 23-10616 Document: 53-1 Date Filed: 10/30/2023 Page: 1 of 43
2 Opinion of the Court 23-10616

ROBERT ALEXANDER ANDRADE, 

MELONY BELL, 

DAVID BORRERO, 

JUAN FERNANDEZ-BARQUIN, 

RANDY FINE, et al.,

Interested Parties-Appellants.

____________________

Appeal from the United States District Court

for the Northern District of Florida

D.C. Docket No. 4:22-cv-00304-MW-MAF

____________________

Before WILLIAM PRYOR, Chief Judge, JILL PRYOR, Circuit Judge, and 

COOGLER,* Chief District Judge.

WILLIAM PRYOR, Chief Judge:

This appeal poses the question whether a common-law privilege shields state legislators from a discovery request made for the 

purpose of determining the legislators’ motives in passing a law. 

Professors and one student challenged Florida’s Individual Freedom Act for having a racially discriminatory purpose in violation 

* Honorable L. Scott Coogler, Chief United States District Judge for the Northern District of Alabama, sitting by designation.

USCA11 Case: 23-10616 Document: 53-1 Date Filed: 10/30/2023 Page: 2 of 43
23-10616 Opinion of the Court 3 

of the Equal Protection Clause of the Fourteenth Amendment. After the plaintiffs subpoenaed legislators for documents related to 

the bill’s drafting and adoption, the legislators moved to quash the 

subpoenas based on the legislative privilege. The district court partially denied the motion on the grounds that factual documents are 

outside the scope of the privilege and alternatively that important 

federal interests outweighed the legislative privilege. Because factual documents are within the scope of the privilege, which is unqualified in this kind of lawsuit, we reverse and remand with instructions to quash the subpoenas. 

I. BACKGROUND

In April 2022, Governor DeSantis signed into law the Individual Freedom Act, also called the Stop W.O.K.E. Act. See Ch. 

2022-72, Laws of Fla. Governor DeSantis described the Act as “a 

stand against the state-sanctioned racism that is critical race theory.” Governor DeSantis Announces Legislative Proposal to Stop 

W.O.K.E. Activism and Critical Race Theory in Schools and Corporations, News Release (Dec. 15, 2021), https://perma.cc/9VV7-

7YCE. It prohibits Florida’s public schools from “subject[ing] any 

student or employee to training or instruction that espouses, promotes, advances, inculcates, or compels such [individual] to believe” any of eight concepts descended from critical race theory.

FLA. STAT. § 1000.05(4)(a). For example, the Act stops schools from 

teaching that “[m]embers of one race, color, national origin, or sex 

are morally superior to members of another,” that “[a] person, by 

virtue of his or her race, color, national origin, or sex, is inherently 

USCA11 Case: 23-10616 Document: 53-1 Date Filed: 10/30/2023 Page: 3 of 43
4 Opinion of the Court 23-10616

racist, sexist, or oppressive, whether consciously or unconsciously,” or that “[a] person, by virtue of his or her race, color, 

national origin, or sex, should be discriminated against or receive 

adverse treatment to achieve diversity, equity, or inclusion.” Id. § 

1000.05(4)(a)(1), (2), (6).

In August, seven professors and one student from public universities in Florida challenged the law in the district court as violative of their civil rights. See 42 U.S.C. § 1983. They described the 

Act as “racially motivated censorship that the Florida legislature 

enacted, in significant part, to stifle widespread demands to discuss, 

study, and address systemic inequalities, following the nationwide 

protests that provoked discussions about race and racism in the aftermath of the murder of George Floyd.” They alleged that the Act 

imposes viewpoint restrictions in violation of the First Amendment, is unconstitutionally vague in violation of the Due Process 

Clause of the Fourteenth Amendment and was enacted with a racially discriminatory purpose in violation of the Equal Protection 

Clause. The district court preliminarily enjoined the Act’s enforcement in higher education on the viewpoint discrimination and 

vagueness grounds. That injunction is the subject of another appeal. The plaintiffs did not seek preliminary injunctive relief for the 

claim that the Act violated the Equal Protection Clause.

The plaintiffs served subpoenas on fourteen non-party legislators—thirteen co-sponsors of the Act and one legislator who supported the bill during a Florida House of Representatives debate.

The subpoenas sought an array of documents from “both personal 

USCA11 Case: 23-10616 Document: 53-1 Date Filed: 10/30/2023 Page: 4 of 43
23-10616 Opinion of the Court 5

and government devices” from January 2020 onward that bore on 

eighteen separate requests. For example, the subpoenas demanded 

the production of “[a]ny and all notes, memoranda, research, written analysis, white papers, studies, reports, or opinions relied upon, 

created by, or reviewed by [the legislator] or [the legislator’s] employees, staff, or representatives,” regarding “creation and drafting,” the “enactment,” and the “implementation” of the Act. The 

subpoenas also sought “[a]ll [d]ocuments or [c]ommunications assessing or predicting the potential impacts of [the Act], or other related bills, including, but not limited to, impact on [b]lack persons, 

including students or educators, in Florida.” And the requested discovery extended beyond documents concerning the bill itself to “all 

documents reflecting communications . . . regarding Racial Justice 

Protests or Black Lives Matter” or “Critical Race Theory.” After the 

parties conferred to discuss the subpoenas, the plaintiffs proposed 

a list of over seventy search terms for use in complying with the 

subpoenas—e.g., antifa, Woke-at-work, Colonizer, 1619, Sexis[t], 

Feminis[t], and Tucker Carlson. In response, the legislators argued

that “the legislative privilege prohibits these sort of fishing expeditions” and moved to quash the subpoenas.

The district court partially granted and partially denied the 

legislators’ motion. Because it determined that “most of the documents . . . are subject to legislative privilege,” it granted the motion 

to quash as to the bulk of the requested discovery. It also narrowed 

the list of search terms to exclude those related to gender and shortened the timeframe to extend from March 2021 through the passage of the Act.

USCA11 Case: 23-10616 Document: 53-1 Date Filed: 10/30/2023 Page: 5 of 43
6 Opinion of the Court 23-10616

The district court required the production of “documents 

containing factually based information used in the decision-making 

process or disseminated to legislators or committees” for two reasons. First, it reasoned that the legislative privilege does not extend 

to “purely factual documents, including bill drafts, bill analyses, 

white papers, studies, and news reports.” Second, the district court 

reasoned that, even if the legislative privilege does extend to purely 

factual documents, it yields to the important federal interests present here. The district court concluded that, on the one hand, the 

“legislative privilege’s purpose” “weigh[ed] heavily in favor of nondisclosure.” But it concluded that, on the other hand, the subpoenas sought evidence that was “highly relevant” to the plaintiffs’ efforts to “vindicate public right[s] that impact thousands of faculty 

and students,” and “in that respect, their equal protection claim 

[was] akin to criminal prosecutions,” to which the legislative privilege can yield.

After the legislators appealed, the district court stayed the 

discovery order pending the resolution of this appeal. The appeal 

was expedited to oral argument on the parties’ joint motion. Seventeen state attorneys general filed a brief as amici curiaesupporting 

the legislators.

II. STANDARD OF REVIEW

This Court reviews the denial of a motion to quash a subpoena for abuse of discretion. See In re Hubbard, 803 F.3d 1298, 1307 

(11th Cir. 2015). “A ruling based on an error of law or one that reflects a clear error of judgment is an abuse of discretion.” Id.

USCA11 Case: 23-10616 Document: 53-1 Date Filed: 10/30/2023 Page: 6 of 43
23-10616 Opinion of the Court 7 

III. DISCUSSION

We divide our discussion in two parts. We first address the 

erroneous determination that the legislative privilege does not protect “factual documents.” We then address the erroneous determination that the legislative privilege should yield to the important 

federal interests in this case. 

A. The Legislative Privilege Shields Purely Factual Information.

A common-law privilege protects state legislators from “deterrents to the uninhibited discharge of their legislative duty” for 

the purpose of “the public good.” Tenney v. Brandhove, 341 U.S. 367, 

377 (1951). Although the core of the privilege is a state legislator’s 

immunity from civil suit for acts related to legislative proceedings, 

see id. at 379, we have explained that this “privilege extends to discovery requests” because “complying with such requests detracts 

from the performance of official duties.” Hubbard, 803 F.3d at 1310. 

So, where a discovery request “inquir[es] into legislative acts or the 

motivation for actual performance of legislative acts,” state legislators can “protect the integrity of the legislative process” by invoking the privilege to quash the request. Bryant v. Jones, 575 F.3d 1281, 

1304–05 (11th Cir. 2009) (quoting United States v. Brewster, 408 U.S. 

501, 507, 509 (1972)). 

The district court split the documents subject to subpoena 

into two categories: “purely factual documents” and those documents that “set[] out the [l]egislators’ or their staff members’ motivations and mental impressions.” And it denied the legislators’ moUSCA11 Case: 23-10616 Document: 53-1 Date Filed: 10/30/2023 Page: 7 of 43
8 Opinion of the Court 23-10616

tion as to the first category because, it determined, factual documents fall outside the privilege’s scope. But the categorical distinction drawn by the district court between factual documents and 

other documents has no basis in our precedent.

Our precedent makes clear that we consider the purpose of a 

subpoena, not what the subpoena seeks, to determine if the legislative privilege applies. See Hubbard, 803 F.3d at 1311. In Hubbard, 

we explained that “[a]ny material, documents, or information that 

. . . go[es] to legislative motive [is] covered by the legislative privilege.” Id. We held that the district court should have quashed subpoenas where their “only purpose was to support the lawsuit’s inquiry into the motivation behind [a statute], an inquiry that strikes 

at the heart of the legislative privilege.” Id. at 1310.

In Hubbard, we explained that where a claim is “at its core 

and in its entirety an inquiry into the subjective motivation” of the 

legislators, we do not take a “document-by-document” approach:

[T]here was no need for the lawmakers to peruse the 

subpoenaed documents, to specifically designate and 

describe which documents were covered by the legislative privilege, or to explain why the privilege applied to those documents. It was enough to point out, 

as the lawmakers did, that the only purpose of the 

subpoenas was to further [the plaintiff’s] inquiry into 

the lawmakers’ motivations for [a statute] and that 

their legislative privileges exempted them from such 

inquiries.

USCA11 Case: 23-10616 Document: 53-1 Date Filed: 10/30/2023 Page: 8 of 43
23-10616 Opinion of the Court 9 

Id. at 1311 (internal citation omitted). In other words, courts need 

not decide whether a document befits some descriptor, like “purely 

factual,” to determine whether it is protected. If the document is 

sought for an impermissible purpose, the inquiry is over.

Our inquiry can end as quickly. According to the plaintiffs’ 

response to the Florida legislators’ motion to quash the subpoena, 

the plaintiffs served the subpoenas on the legislators to “determin[e] whether there was a discriminatory motive behind the 

[Act].” By the plaintiffs’ own admission, the subpoenas’ purpose 

was to uncover the legislators’ motives in passing the law. “The 

privilege applies with full force against requests for information 

about the motives for legislative votes and legislative enactments.” 

Id. at 1310. So, the privilege applies with its usual force against the 

discovery of even the factual documents in the Florida legislators’ 

possession. The district court abused its discretion when it determined otherwise.

B. The Legislative Privilege Is Unqualified Here.

The district court concluded, in the alternative, that the 

purely factual documents were discoverable because any legislative privilege protecting them “[gave] way to important federal interests.” To be sure, the legislative privilege may yield “where important federal interests are at stake, as in the enforcement of federal criminal statutes.” United States v. Gillock, 445 U.S. 360, 373 

(1980). But the district court decided that “the exception to [the] 

legislative privilege extends beyond the circumstances identified in 

Gillock” to include the facts of this case because the vindication of 

USCA11 Case: 23-10616 Document: 53-1 Date Filed: 10/30/2023 Page: 9 of 43
10 Opinion of the Court 23-10616

a “public right that impact[s] thousands of faculty and students” is 

“at least as important as—if not more important” than—prosecuting criminals.

This extension was erroneous. The Supreme Court has 

never expanded the Gillock exception beyond criminal cases. “[F]or 

purposes of the legislative privilege, there is a fundamental difference between civil actions by private plaintiffs and criminal prosecutions by the federal government.” Hubbard, 803 F.3d at 1311–12; 

see Gillock, 445 U.S. at 361, 372–73. Although the legislative privilege does not presumptively apply in the latter kind of case, the 

presumption otherwise holds firm. See Village of Arlington Heights v. 

Metro. Hous. Dev. Corp., 429 U.S. 252, 268 (1977). And it is insurmountable in private civil actions under section 1983. Not only is a 

private action under section 1983 “not a federal criminal investigation,” Hubbard, 803 F.3d at 1312, but the Supreme Court declared 

in Gillock that “a state legislator’s common-law absolute immunity 

from civil suit survived the passage of the Civil Rights Act of 1871.” 

Gillock, 445 U.S. at 372; see also Tenney, 341 U.S. at 376 (“We cannot 

believe that Congress—itself a staunch advocate of legislative freedom—would impinge on a tradition so well grounded in history 

and reason [as the legislative privilege] by covert inclusion [of an 

exception] in the general language [of section 1983] before us.”); see 

also Brown & Williamson Tobacco Corp. v. Williams, 62 F.3d 408, 421 

(D.C. Cir. 1995) (“We do not perceive a difference in the vigor with 

which the privilege protects against compelling a congressman’s 

testimony as opposed to the protection it provides against suit.”). 

USCA11 Case: 23-10616 Document: 53-1 Date Filed: 10/30/2023 Page: 10 of 43
23-10616 Opinion of the Court 11

In the light of Gillock and Tenney, we cannot except civil-rights actions from the application of the legislative privilege.

To be sure, Gillock left open the possibility of further extension. See 445 U.S. at 373–74. But “the Supreme Court has not set 

forth the circumstances under which the privilege must yield to the 

need for a decision maker’s testimony.” Lee v. City of Los Angeles, 

908 F.3d 1175, 1187 (9th Cir. 2018). And absent the Supreme 

Court’s imprimatur, we are reluctant to adopt a manipulable balancing test, like the one employed by the district court, that links 

the derogation of the legislative privilege to a subjective judgment 

of the case’s importance. Indeed, the test used by the district court 

is, as the state amici put it, “not persuasive on its own terms.” As 

the states explain, most of its factors “simply mirror the general 

standard for discovery of non-privileged material.”

None of our sister circuits have subjected the privilege to 

such a test, and at least four of them have rejected this approach. 

See id. at 1188 (holding that unsubstantiated “claims of racial gerrymandering,” though “serious,” “fall[] short of justifying the ‘substantial intrusion’ into the legislative process” of a discovery request (citation omitted)); Am. Trucking Ass’ns, Inc.v. Alviti, 14 F.4th 

76, 88 (1st Cir. 2021) (“[This] argument suggests a broad exception 

overriding the important comity considerations that undergird the 

assertion of a legislative privilege by state lawmakers.”); La Union 

Del Pueblo Entero v. Abbott, 68 F.4th 228, 239–40 (5th Cir. 2023) (“[A] 

state legislator’s common-law absolute immunity from civil actions precludes the compelled discovery of documents pertaining 

USCA11 Case: 23-10616 Document: 53-1 Date Filed: 10/30/2023 Page: 11 of 43
12 Opinion of the Court 23-10616

to the state legislative process that Plaintiffs seek here.”); In re North 

Dakota Legis. Assembly, 70 F.4th 460, 465 (8th Cir. 2023) (“Dicta from 

Village of Arlington Heights does not support the use of a five-factor 

balancing test in lieu of the ordinary rule that inquiry into legislative conduct is strictly barred by the privilege.”). We agree and join 

them.

Even if the privilege could be overcome by especially compelling civil-rights claims, we reject the plaintiffs’ argument that the 

privilege must give way when the claim depends on proof of legislative intent. The Supreme Court has described legislative immunity as “indispensably necessary” as it “support[s] the rights of the 

people, by enabling their representatives to execute the functions 

of their office.” Tenney, 341 U.S. at 373–74. “A court proceeding 

that probes legislators’ subjective intent in the legislative process is 

a ‘deterrent[] to the uninhibited discharge of their legislative duty.’” 

Abbott, 68 F.4th at 238 (quoting Tenney, 341 U.S. at 377). As our sister circuit has explained, we cannot create an “exception whenever 

a constitutional claim directly implicates the government’s intent” 

because “that exception would render the privilege ‘of little 

value.’” Lee, 908 F.3d at 1188 (quoting Tenney, 341 U.S. at 377); Tenney, 341 U.S. at 377 (“The claim of an unworthy purpose does not 

destroy the privilege.”); Abbott, 68 F.4th at 238 (“This holds true 

even when constitutional rights are at stake.”).

IV. CONCLUSION

We REVERSE and REMAND with instructions to quash 

the subpoenas.

USCA11 Case: 23-10616 Document: 53-1 Date Filed: 10/30/2023 Page: 12 of 43
23-10616 JILL PRYOR, J., Dissenting 1

JILL PRYOR, Circuit Judge, dissenting:

This appeal concerns the scope and force of the legislative 

privilege—a federal common-law privilege that protects state legislators from discovery into legislative acts and the subjective motivations for those acts. We must determine whether the privilege 

prevents a group of plaintiffs from obtaining any discovery from 

Florida legislators to support the plaintiffs’ claim that a recent Florida law intentionally harms racial minorities. I would hold that the 

privilege does not bar the plaintiffs’ request.

After Florida’s Legislature enacted a law curtailing discussions of race in Florida public schools, a group of professors and a 

student sued Florida officials alleging that the new law was racially 

motivated censorship and asking the district court to prevent its 

enforcement. The plaintiffs brought four counts against the officials, including one under the Equal Protection Clause of the Fourteenth Amendment. Because their equal protection claim required 

the plaintiffs to prove that the legislature was motivated in part by 

a desire to inflict racially disparate harm, the plaintiffs subpoenaed 

14 legislators who sponsored or supported the Act, seeking documentary discovery. The legislators moved to quash the subpoenas, 

invoking the legislative privilege. The district court granted their 

motion for the most part. But it allowed the plaintiffs to subpoena 

the legislators for the factual materials and information available to 

the Legislature at the time it enacted the law. The court concluded 

that these factual materials fell outside the scope of the privilege, 

USCA11 Case: 23-10616 Document: 53-1 Date Filed: 10/30/2023 Page: 13 of 43
2 JILL Pryor, J., Dissenting 23-10616

and, in the alternative, the privilege yielded to the important federal interest in vindicating the Constitution’s guarantee of equal 

protection.

The majority opinion reverses this limited denial of privilege. It holds that the plaintiffs were entitled to no discovery from 

the legislators because the legislative privilege is absolute in this 

context. In so holding, the majority opinion adopts the outlier position that the legislative privilege never yields in cases arising under 

42 U.S.C. § 1983, the paradigm federal civil rights statute. I disagree 

because the Supreme Court has instructed that the legislative privilege held by state legislators is a qualified one: it may yield in the 

face of important federal interests. United States v. Gillock, 445 U.S. 

360, 373 (1980). Certainly, § 1983 cases are capable of advancing 

important federal interests. And—as in equal protection cases like 

this one—§ 1983 cases may turn on the subjective motivations of 

legislators. I would not require plaintiffs put to such proof to litigate these important cases with one hand tied behind their backs. 

I respectfully dissent.

II. BACKGROUND

In the winter of 2021, Florida’s governor Ron DeSantis announced a legislative proposal that he dubbed the “Stop the 

Wrongs to Our Kids and Employees (W.O.K.E.) Act.” News Release, Governor DeSantis Announces Legislative Proposal to Stop 

W.O.K.E. Activism and Critical Race Theory in Schools and Corporations

(Dec. 15, 2021), https://perma.cc/U55E-VFUY. The governor herUSCA11 Case: 23-10616 Document: 53-1 Date Filed: 10/30/2023 Page: 14 of 43
23-10616 JILL PRYOR, J., Dissenting 3

alded the proposed “Stop W.O.K.E. Act” as “the strongest legislation of its kind in the nation” and a tool to “take on . . . Critical Race 

Theory.” Id. Describing critical race theory as “state-sanctioned 

racism,” the governor promised not to “allow Florida tax dollars to 

be spent teaching kids to hate our country or to hate each other.” 

Id. The lieutenant governor predicted that the proposed act would 

“put an end to wokeness” in Florida’s schools and assure a “wokefree state of Florida.” Id. 

Heeding the governor’s proposal, the Florida Legislature 

passed what it titled the “Individual Freedom Act.” 2022 Fla. Sess. 

Law Serv. Ch. 2022-72 (C.S.H.B. 7) (West).1 As relevant here, the 

Act amends Florida’s Educational Equity Act to prohibit “training 

or instruction that espouses, promotes, advances, inculcates, or 

compels [a] student or employee to believe any . . . concept[]” specified by the Act. Fla. Stat. § 1000.05(4)(a). Many of the concepts or 

viewpoints the Act specifies bear on ongoing national debates regarding the role of race in American society and the appropriate 

response to centuries of racial discrimination. For instance, the Act 

prohibits instruction advancing the views that “[a] person, by virtue of his or her race, color, national origin, or sex, should be discriminated against or receive adverse treatment to achieve diversity, equity, or inclusion,” id. § 1000.05(4)(a)(6); “[a] person’s . . . 

status as either privileged or oppressed is necessarily determined 

by his or her race,” id. § 1000.05(4)(a)(3); “[a] person, by virtue of 

1 The parties and the district court employ both names—the “Individual Freedom Act” and the “Stop W.O.K.E. Act.” From here, I refer only to the “Act.”

USCA11 Case: 23-10616 Document: 53-1 Date Filed: 10/30/2023 Page: 15 of 43
4 JILL Pryor, J., Dissenting 23-10616

his or her race . . . bears personal responsibility for . . . actions[] in 

which the person played no part[] committed in the past by other 

members of the same race,” id. § 1000.05(4)(a)(7); or that concepts 

including “merit, . . . neutrality, objectivity, and racial colorblindness are” themselves “racist[,]” id. § 1000.05(4)(a)(8) The Act does 

not prohibit instruction that espouses opposing points of view. 

By its terms, the Act applies to Florida’s “system of public K20 education,” id. § 1000.05(2)(a), which includes primary and secondary schools as well as post-secondary education—the Florida 

College System and Florida’s state universities, see id. § 1000.04. 

The Act permits the state Board of Education to withhold funding 

from institutions that violate the Act, id. § 1000.05(7)(g), and allows 

anyone aggrieved by a violation to sue for equitable relief, attorney’s fees, and costs, id. § 1000.05(9).

The plaintiffs in this case are seven professors and a student 

in Florida’s public universities. The professors teach a variety of 

subjects: constitutional law, education law, politics, philosophy, 

communications, statistics, and psychology. Across the board, they 

explore race in their teaching and scholarship. For example, plaintiff LeRoy Pernell—a Professor of Law at Florida A&M University 

College of Law—teaches a course entitled, “The Role of Race in 

Criminal Procedure.” Doc. 76 at 10.2 Pernell’s course examines the 

part race plays throughout the criminal process, including through 

the application of the Equal Protection Clause of the Fourteenth 

2 “Doc.” refers to the district court’s docket entries in this case. 

USCA11 Case: 23-10616 Document: 53-1 Date Filed: 10/30/2023 Page: 16 of 43
23-10616 JILL PRYOR, J., Dissenting 5

Amendment, and asks students to consider ways in which the legal 

system is “color-conscious and promotes privilege based on race.” 

Id. at 10–11; see also, e.g., Reva Siegel, Why Equal Protection No Longer 

Protects: The Evolving Forms of Status-Enforcing State Action, 49 Stan. 

L. Rev. 1111 (1996) (considering the possibility that race-neutral approaches in antidiscrimination law “may be rationalizing practices 

that perpetuate historic forms of stratification”). The professors 

fear that the Act may outlaw their pedagogy. 

After the governor signed the Act into law, the plaintiffs 

sued. In a four-count complaint, they alleged that the Act’s lopsided 

treatment of certain views violates the First and Fourteenth 

Amendments. Pursuant to 42 U.S.C. § 1983, they sought declaratory and injunctive relief against Florida officials responsible for enforcing the Act. 

Invoking three counts of their four-count complaint, the 

plaintiffs moved in the district court for a preliminary injunction. 

After a hearing, the district court entered a preliminary injunction 

barring certain defendant officials from enforcing the Act as the 

lawsuit progressed. In a separate appeal before this Court, the officials appealed the preliminary injunction. See Pernell v. Comm’r of 

Fla. State Bd. of Educ., No. 22-13992 (11th Cir.). 

The remaining count, Count IV, underlies this appeal. In 

Count IV, the plaintiffs alleged that the Act violates the Equal Protection Clause of the Fourteenth Amendment because the Act 

“was enacted for a racially discriminatory purpose” and would 

cause racially disparate harm. Doc. 76 at 95; see Greater Birmingham 

USCA11 Case: 23-10616 Document: 53-1 Date Filed: 10/30/2023 Page: 17 of 43
6 JILL Pryor, J., Dissenting 23-10616

Ministries v. Sec’y of State for Ala., 992 F.3d 1299, 1321 (11th Cir. 

2021) (to make out a claim that facially neutral state action violates 

the Equal Protection Clause, “[p]laintiffs must first show that the 

State’s decision or act had a discriminatory purpose and effect” (internal quotation marks omitted)). According to the plaintiffs, the 

Act “targets the elimination of curriculum, instruction, and conversations designed to improve the educational, social, and civic experiences of Black people and other historically marginalized 

groups.” Doc. 76 at 97. In support of Count IV, the plaintiffs alleged 

that members of the Florida Legislature knew that the Act “would 

have a disparate impact on Black students and instructors,” id. at 

85, in part because—as a result of testimony before the legislators—

they knew it would “suppress[] speech and ideas that help Black 

people achieve equality,” id. at 90. 

To test the plaintiffs’ allegations, the parties commenced discovery on Count IV. The plaintiffs served 14 nonparty members of 

the Florida legislature—13 legislators who co-sponsored the Act 

and one who “vocally supported” it—with subpoenas containing 

18 requests for production of documents. Doc. 100 at 2. The requests spanned a three-year period and sought a broad set of documents and communications between the legislators, their staff, and 

others regarding the Act. For instance, the subpoenas requested 

that the legislators produce “[a]ny and all documents reflecting 

communications, including but not limited to, letters, e-mails, and 

text messages, exchanged between You or Your employees, staff, 

or representatives and Defendants or their employees, staff, or representative regarding [the Act] or Critical Race Theory.” Doc. 91-1 

USCA11 Case: 23-10616 Document: 53-1 Date Filed: 10/30/2023 Page: 18 of 43
23-10616 JILL PRYOR, J., Dissenting 7

at 13–14. They requested “notes, memoranda, research, written 

analysis, white papers, studies, report, or opinions” relied on by the 

legislators in considering the Act; documents and communications 

assessing the impact of the Act; and public remarks by the legislators concerning the Act. Id. at 16. They also sought communications between the legislators, the governor’s office, and the University of Florida system on topics including the Act itself and concepts 

like “Critical Race Theory” and “Black Lives Matter.” Id. In short, 

the subpoenas sought to probe the legislators’ knowledge and motivations in supporting the Act. 

The legislators moved to quash the subpoenas under Federal Rule of Civil Procedure 45(d)(3). They argued that the subpoenas would subject them to an undue burden, sought irrelevant information, and requested information protected by a common-law 

legislative privilege. In response, the district court quashed the subpoenas as to “the overwhelming majority of the documents Plaintiffs” requested. Doc. 100 at 19. To reduce the burden of the subpoenas, the district court halved the time frame covered by the 

plaintiffs’ document requests. To ensure the relevance of requested 

documents, the district court eliminated proposed search terms 

that would bear on sex—not race—discrimination. And, to protect 

the integrity of the legislative process, the district court found that 

the legislative privilege prevented discovery of documents “contain[ing] opinions, recommendations or advice.” Id. at 13 (internal 

quotation marks omitted). In the end, the court required the legislators to produce only “documents containing factually based information used in the decision-making process or disseminated to 

USCA11 Case: 23-10616 Document: 53-1 Date Filed: 10/30/2023 Page: 19 of 43
8 JILL Pryor, J., Dissenting 23-10616

legislators or committees, such as committee reports and minutes 

of meetings”—that is, “the materials and information available to 

the Legislature at the time a decision was made and nothing more.” 

Id. (alteration adopted) (internal quotation marks omitted).

The district court rested its decision that the legislators were 

required to turn over “purely factual documents” on two alternative grounds. Id. at 6. First, it concluded that these documents fell 

outside the scope of the legislative privilege altogether. Second, it 

determined that even if the privilege reached purely factual documents, the privilege should yield as to those documents in this case. 

The district court reasoned that under United States Supreme 

Court precedent the legislative privilege gives way in the face of 

“important federal interests.” Id. at 7 (internal quotation marks 

omitted). It then applied a five-part balancing test courts have used 

to evaluate of claims of executive privilege to assess whether this 

case presented such interests. Acknowledging the important purposes served by the legislative privilege, the district court determined to “strike some balance.” Id. at 13. It concluded that by 

quashing the subpoenas as to documents of a deliberative character 

(those “contain[ing] opinions, recommendations or advice”) but 

not factual documents, it could avoid “the most egregious intrusions into the legislative process” while also giving the plaintiffs evidence relevant to their equal protection claim. Id. (internal quotation marks omitted)

USCA11 Case: 23-10616 Document: 53-1 Date Filed: 10/30/2023 Page: 20 of 43
23-10616 JILL PRYOR, J., Dissenting 9

The legislators appealed the district court’s discovery order.3 The district court stayed its order pending this appeal, and on 

the parties’ joint motion we expedited the appeal. 

III. STANDARD OF REVIEW

“We review a trial court’s ruling on a motion to quash a subpoena only for an abuse of discretion.” Jordan v. Comm’r., Miss. Dep’t 

of Corr., 947 F.3d 1322, 1326 (11th Cir. 2020) (internal quotation 

marks omitted). And so “we will leave the district court’s ruling on 

the motion undisturbed unless the district court has made a clear 

error of judgment, or has applied the wrong legal standard.” Id. at 

1326–27 (internal quotation marks omitted).

IV. DISCUSSION

On appeal, the legislators argue that the district court should 

have quashed the subpoenas in their entirety. To prevail, they must 

persuade us that both alternative grounds for the district court’s 

decision—that the legislative privilege does not reach the disputed 

documents and that it yields in this case—were abuses of discretion. See Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 680 (11th 

Cir. 2014) (“To obtain reversal of a district court judgment that is 

based on multiple, independent grounds, an appellant must convince us that every stated ground for the judgment against him is 

3 The plaintiffs have not cross-appealed the district court’s partial grant of the 

legislators’ motion to quash.

USCA11 Case: 23-10616 Document: 53-1 Date Filed: 10/30/2023 Page: 21 of 43
10 JILL Pryor, J., Dissenting 23-10616

incorrect.”). I agree with the majority opinion that under our precedent the district court abused its discretion when it concluded that 

purely factual information does not implicate the legislative privilege.4 From there, we part ways. 

I would not hold—as the majority opinion does—that the 

legislative privilege, when it applies at all, is absolute in cases arising under 42 U.S.C. § 1983. Instead, I would affirm the district 

court’s balancing approach because it is consistent with the Supreme Court’s instruction that the legislative privilege yields in the 

4 Our precedent compels this conclusion. SeeIn re Hubbard, 803 F.3d 1298 (11th 

Cir. 2015). In Hubbard, we were confronted with subpoenas whose sole purpose “was to probe the subjective motivations of the legislators who supported” a legislative act. Id. at 1310. Given this purpose, we explained, “[n]one 

of the information sought could have been outside the privilege” because the 

privilege guards against inquiries into “the subjective motivations of those acting in a legislative capacity.” Id. at 1311. Here, the district court found (and the 

plaintiffs concede) that the purpose of the subpoenas was to “[p]ursu[e] evidence of discriminatory intent.” Doc. 100 at 2; see also Br. of Appellees at 29 

(pointing to “the subjective motivations of the [Act’s] leading sponsors” as the 

object of the subpoenas (alteration adopted) (internal quotation marks omitted)). And the plaintiffs point to no other non-privileged purpose underlying 

the subpoenas that would require a “a document-by-document invocation of 

the legislative privilege.” Hubbard, 803 F.3d at 1311. 

Not only does Hubbard confirm that when the sole purpose of a subpoena is 

to probe legislative intent, the privilege applies to all the documents sought by 

the subpoena, but it is inconsistent with a factual document exception. The 

subpoenas in Hubbard sought the production of some of the very same types 

of documents the district court here deemed factual. Compare id. at 1303 n.4 

(listing subpoena demands) with Doc. 100 at 6 (listing documents excepted as 

factual). We afforded no exception in that case. 

USCA11 Case: 23-10616 Document: 53-1 Date Filed: 10/30/2023 Page: 22 of 43
23-10616 JILL PRYOR, J., Dissenting 11

face of “important federal interests.” Gillock, 445 U.S. at 373. Section 1983 cases may both vindicate core federal interests (indeed, 

constitutional ones) and require courts to consider legislative motivation—precisely the inquiry the legislative privilege hampers. 

A. The Legislative Privilege

Through the interplay of Federal Rule of Evidence 501 and 

Federal Rule of Civil Procedure 45(d)(3)(A)(iii), courts have recognized that state legislators hold a federal common-law privilege 

against compulsory discovery process. In re Hubbard, 803 F.3d 1298, 

1307 (11th Cir. 2015); accord La Union Del Pueblo Entero v. Abbott, 68 

F.4th 228, 235 (5th Cir. 2023). Rule 45 says that a court “must quash 

or modify a subpoena that . . . requires disclosure of privileged or 

other protected matter, if no exception” applies. Fed. R. Civ. P. 

45(d)(3)(A)(iii). Rule 501, in turn, specifies that, in a federal question 

case, “[t]he common law—as interpreted by United States courts 

in the light of reason and experience—governs a claim of privilege.” Fed. R. Evid. 501.

The legislative privilege is “important” and “has deep roots 

in federal common law.” Hubbard, 803 F.3d at 1307. It “‘protects 

against inquiry into acts that occur in the regular course of the legislative process and into the motivation for those acts.’” Id. at 1310 

(emphasis omitted) (quoting United States v. Brewster, 408 U.S. 501, 

525 (1972)). The privilege’s purpose is to allow legislators to “focus 

on their public duties” by avoiding discovery procedures that might 

force them “to divert their time, energy, and attention,” “detract[] 

USCA11 Case: 23-10616 Document: 53-1 Date Filed: 10/30/2023 Page: 23 of 43
12 JILL Pryor, J., Dissenting 23-10616

from the performance of official duties,” or otherwise chill the legislative process. Id. (internal quotation marks omitted). 

I pause here to distinguish the legislative privilege from the 

Constitution’s Speech or Debate Clause, which provides that “for 

any speech or debate in either House,” members of Congress “shall 

not be questioned in any other place.” U.S. Const. art. I, § 6, cl. 1. 

Unlike the Speech or Debate Clause, the legislative privilege has no 

constitutional dimension. Nor, as the Supreme Court has explained, is the legislative privilege supported by the all the same 

rationales as the Speech or Debate Clause (or even its state constitutional analogues). Although the constitutional protection afforded to members of Congress is a “fundamental” part of our horizontal “system of checks and balances[,] . . . the separation of 

powers doctrine[] gives no support to the grant of a privilege to 

state legislators” in federal-question cases. Gillock, 445 U.S. at 369–

70. And the Supreme Court has said that the history of Rule 501 

“suggest[s] that the [legislative] privilege was not thought” by the 

drafters of the rule “to be either indelibly ensconced in our common law or an imperative of federalism.” Id. at 367–68.5 Instead, 

5 As the Court explained in Gillock, the Advisory Committee of the Judicial 

Conference of the United States initially “proposed” a “draft” of Rule 501 under which “federal courts would have been permitted to apply only nine specifically enumerated privileges, except as otherwise required by the Constitution or provided by Acts of Congress.” Gillock, 445 U.S. at 367. A legislative 

privilege was not among those enumerated in the draft rule. “Neither the Advisory Committee, the Judicial Conference, nor this Court saw fit . . . to provide” a privilege to state legislators. Id. The Gillock Court doubted that the 

USCA11 Case: 23-10616 Document: 53-1 Date Filed: 10/30/2023 Page: 24 of 43
23-10616 JILL PRYOR, J., Dissenting 13

the legislative privilege is grounded in our “sensitivity to interference with the functioning of state legislators”—comity. Id. at 372. 

And “although principles of comity command careful consideration, . . .where important federal interests are at stake, . . . comity 

yields.” Id. at 373; accord Hubbard, 803 F.3d at 1311 (“[A] state lawmaker’s legislative privilege must yield in some circumstances 

where necessary to vindicate important federal interests[.]”).

B. The Privilege is Qualified in § 1983 Cases

In Gillock, the Court identified one important federal interest 

(the only one before it) to which comity yields: “the enforcement 

of federal criminal statutes.” Gillock, 445 U.S. at 373. In this case, 

the legislators ask us, in essence, to read Gillock as if it considered 

and rejected all other possible important federal interests and conclude that in cases arising under 42 U.S.C. § 1983, the privilege 

never yields. Indeed, they decline to challenge the district court’s 

ruling on any other ground.6 The majority opinion indulges their 

extreme and novel request, holding that the legislative privilege “is 

insurmountable . . . under section 1983.” Maj. Op. at 10. I cannot 

acquiesce. Like prosecutions enforcing federal criminal statutes, 

lawsuits under § 1983 may vindicate important federal interests. 

legislative privilege could be both “an imperative of federalism” and entirely 

overlooked in the drafting of Rule 501. Id. at 367–68.

6 On appeal, the legislators did not renew their burdensomeness or relevance 

challenges to the subpoena. And at oral argument counsel for the legislators 

agreed that they had not attacked the district court’s application of the balancing test; rather they had argued only that the legislative privilege is absolute. 

USCA11 Case: 23-10616 Document: 53-1 Date Filed: 10/30/2023 Page: 25 of 43
14 JILL Pryor, J., Dissenting 23-10616

And sometimes that will require discovery “into acts that occur in 

the regular course of the legislative process and into the motivation 

for those acts.” Hubbard, 803 F.3d at 1310 (emphasis omitted) (internal quotation marks omitted). 

Section 1983—originally enacted as § 1 of the Ku Klux Klan 

Act of 1871, 17 Stat. 13—“created a species of federal tort liability 

for individuals to sue state and local officers for deprivations of constitutional rights.” Thompson v. Clark, 596 U.S. 36, 42 (2022). Under 

the statute, plaintiffs may prevail by “show[ing] that they were deprived of a federal right by a person acting under color of state 

law.” Leake v. Drinkard, 14 F. 4th 1242, 1247 (11th Cir. 2021) (internal 

quotation marks omitted). As a result, the statute allows private individuals to enforce federal constitutional rights against the states.

In 1871, Congress enacted § 1983, which it patterned after 

§ 2 of the Civil Rights Act of 1866, against a backdrop of white supremacist lawlessness and racial terror throughout the South, to 

“‘enforce the Provisions of the Fourteenth Amendment to the 

Constitution of the United States.’” Monroe v. Pape, 365 U.S. 167, 171 

(1961) (quoting 17 Stat. 13), overruled in part on other grounds by Monell v. Dep’t of Social Servs. of City of N.Y., 436 U.S. 658. 663 (1978). 

The Supreme Court has exhaustively reviewed the “lawless conditions existing in the South” underlying § 1983’s passage: “whippings and lynchings and banishment ha[d] been visited upon unoffending American citizens . . . [m]en were murdered, houses were 

burned, . . . and officers of the law shot down; and the State made 

USCA11 Case: 23-10616 Document: 53-1 Date Filed: 10/30/2023 Page: 26 of 43
23-10616 JILL PRYOR, J., Dissenting 15

no successful effort to bring the guilty to punishment or afford protection or redress to the outraged and innocent.” Id. at 174–75 (internal quotation marks omitted). Concluding that “certain States 

ha[d] denied to persons within their jurisdiction the equal protection of the laws,” Congress enacted § 1983 with “three main 

aims[:]” first to “override certain kinds of state laws”; second to 

“provide[] a [federal] remedy where state law was inadequate”; and 

third “to provide a federal remedy where the state remedy, though 

adequate in theory, was not available in practice.” Id. at 173–75. 

In the century and a half § 1983 has been on the books, private plaintiffs have relied on the statute to vindicate a host of federal rights. Section 1983 has provided the cause of action in major 

cases addressing the right to free speech under the First Amendment;7 the right to be free from unnecessarily cruel methods of 

execution under the Eighth Amendment;8 the right to marriage 

under the Fourteenth Amendment;9 the right to bear arms under 

7 See Compl. at 4, 303 Creative LLC v. Elenis, 405 F. Supp. 3d 907 (D. Colo. 2019) 

(No. 16-cv-2372), aff’d, 6 F.4th 1160 (10th Cir. 2021), rev’d, 143 S. Ct. 2298 

(2023).

8 See Nance v. Ward, 142 S. Ct. 2214, 2219 (2022).

9 See Compl. at 7, Obergefell v. Wymyslo, 962 F. Supp. 2d 986 (S.D. Ohio 2013) 

(No. 1:13-cv-501), rev’d sub nom. DeBoer v. Snyder, 772 F.3d 388 (6th Cir. 2014), 

rev’d sub nom. Obergefell v. Hodges, 576 U.S. 644 (2015).

USCA11 Case: 23-10616 Document: 53-1 Date Filed: 10/30/2023 Page: 27 of 43
16 JILL Pryor, J., Dissenting 23-10616

the Second Amendment;10 and the Fourteenth Amendment’s prohibitions on segregation and legislative malapportionment.11 As 

these examples demonstrate, civil suits under § 1983 can further 

important federal interests. See also Hubbard, 803 F.3d at 1312 

(“Don’t misunderstand us. We are not saying that enforcing the 

First Amendment is not an important federal interest or that it does 

not protect important constitutional values. Obviously it is and 

does.”). And sometimes discovery seeking to inquire “into the motivation for [legislative] acts” is part and parcel of that furtherance. 

Id. at 1310 (emphasis removed) (internal quotation marks omitted).

This case helps show why. In Count IV, the plaintiffs alleged 

that the Act violates the Equal Protection Clause of the Fourteenth 

Amendment because the Act “was enacted for a racially discriminatory purpose” and would cause racially disparate harm. Doc. 76 

at 95. To state the obvious: equal protection claims brought against 

the states under § 1983 alleging racial discrimination unquestionably may implicate important federal interests. After all, “the central 

purpose of the Fourteenth Amendment was to eliminate racial discrimination emanating from official sources in the States.” 

McLaughlin v. Florida, 379 U.S. 184, 192 (1964). Said differently, the 

thrust of the amendment was to override comity in the service of 

a federal interest of enormous gravity: racial equality. And the 

10 See Parker v. Dist. of Columbia, 478 F.3d 370, 374 (D.C. Cir. 2007), aff’d sub 

nom. Dist. of Columbia v. Heller, 554 U.S. 570 (2008).

11 See Reynold v. Sims, 377 U.S. 533, 537 (1964) (legislative malapportionment); 

Turner v. City of Memphis, 369 U.S. 350, 351 (1962) (racial segregation).

USCA11 Case: 23-10616 Document: 53-1 Date Filed: 10/30/2023 Page: 28 of 43
23-10616 JILL PRYOR, J., Dissenting 17

amendment itself anticipates that Congress will exercise authority 

to enforce its provisions through legislation—like 42 U.S.C. § 1983. 

See U.S. Const. amend. XIV, § 5. 

These claims also frequently require courts to determine the 

motivations for legislative behavior. When a legislative enactment 

facially discriminates based on race, there is little need to probe the 

legislature’s subjective motivations. We simply apply strict scrutiny. See Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 235–36 

(1995). But the same is not true when a law is facially race neutral 

but may have a disparate impact on a racial group. Under those 

circumstances, a plaintiff must demonstrate “discriminatory racial 

purpose” underlying the challenged law. Washington v. Davis, 426 

U.S. 229, 241 (1976). This means that the plaintiff must “show that 

the State’s decision or act had a discriminatory purpose and effect;” 

otherwise, “their constitutional claims fail.” Greater Birmingham, 

992 F.3d at 1321 (internal quotation marks omitted). Put another 

way, the legislature’s subjective motivation is the case.

Although as a general matter it is “not consonant with our 

scheme of government for a court to inquire into the motives of 

legislators,” Tenney v. Brandhove, 341 U.S. 367, 377 (1951), such an 

inquiry is exactly what a disparate impact claim requires. As the 

Supreme Court has explained, “[d]etermining whether invidious 

discriminatory purpose was a motivating factor demands a sensitive inquiry into such circumstantial and direct evidence of intent 

as may be available.” Vill. of Arlington Heights v. Metro. Hous. Dev. 

Corp., 429 U.S. 252, 268 (1977). In making such a determination, 

USCA11 Case: 23-10616 Document: 53-1 Date Filed: 10/30/2023 Page: 29 of 43
18 JILL Pryor, J., Dissenting 23-10616

“[t]he legislative or administrative history”—including “contemporary statements by members of the decisionmaking body, minutes 

of its meetings, or reports”—“may be highly relevant.” Id. 

That is why we frequently consider detailed evidence about 

what individual legislators said, did, or knew in the context of equal 

protection suits under § 1983. See, e.g., League of Women Voters of 

Fla., Inc. v. Fla. Sec’y of State, 66 F.4th 905, 931–32, 938–40 (11th Cir. 

2023); Greater Birmingham, 992 F.3d at 1322–26; City of Carrollton 

Branch of the N.A.A.C.P. v. Stallings, 829 F.2d 1547, 1551–53 (11th 

Cir. 1987); Underwood v. Hunter, 730 F.2d 614, 618–20 (11th Cir. 

1984), aff’d, 471 U.S. 222 (1985). So do the district courts within our 

circuit. See, e.g., GRACE, Inc. v. City of Miami, No. 1:22-cv-24066, ---

F.Supp.3d ----, 2023 WL 3594310 at *5–6 (S.D. Fla. May 23, 2023);

Jacksonville Branch of NAACP v. City of Jacksonville, No. 3:22-cv-493, 

635 F. Supp. 3d 1229, 1291–95 (M.D. Fla. 2022); City of S. Miami v. 

DeSantis, 561 F. Supp. 3d 1211, 1271–80 (S.D. Fla. 2021), vacated on 

jurisdictional grounds, 65 F.4th 631 (11th Cir. 2023). And, for that 

matter, so does the Supreme Court. See Hunt v. Cromartie, 526 U.S. 

541, 549 (1999); see also Reno v. Bossier Par. Sch. Bd., 520 U.S. 471, 

489 (1997) (noting, in applying Arlington Heights to preclearance action under Voting Rights Act, “considerations relevant to the purpose inquiry include . . . the legislative or administrative history, 

especially any contemporary statements by members of the decisionmaking body” (emphasis added) (alterations adopted) (internal 

quotation marks omitted)). 

USCA11 Case: 23-10616 Document: 53-1 Date Filed: 10/30/2023 Page: 30 of 43
23-10616 JILL PRYOR, J., Dissenting 19

The majority opinion’s holding, which cuts off one source 

of evidence of legislative intent (third-party discovery) in a whole 

class of cases (those brought under 42 U.S.C. § 1983), amplifies a 

worrying trend in this Court’s equal-protection jurisprudence. In 

recent years, this Court has discounted certain forms of evidence 

under the Arlington Heights inquiry—history, in particular. This 

Court’s decision in Greater Birmingham took the view that a “historical background analysis” under Arlington Heights focuses “on the 

specific sequence of events leading up to the challenged decision 

and [does] not provid[e] an unlimited look-back to past discrimination.” Greater Birmingham, 992 F.3d at 1325 (internal quotation 

marks omitted). More recently—and over my dissent—this Court 

has admonished the district courts in our circuit that “the proper 

scope of a historical inquiry” under Arlington Heights does not include “a state’s history of discrimination and socioeconomic disparities.” League of Women Voters, 66 F.4th at 923. Instead, courts must 

“look at the precise circumstances surrounding the passing of the 

law in question.” Id. (internal quotation marks omitted). More 

broadly, we have remarked that “determining the intent of the legislature is a problematic and near-impossible challenge.” Greater 

Birmingham, 992 F.3d at 1324. So much so that equal protection 

plaintiffs who lack “smoking gun evidence,” id. at 1325 (internal 

quotation marks omitted), of an intent to discriminate frequently 

lose in our Court—even when they have prevailed in the district 

courts, see League of Women Voters, 66 F.4th at 918–19. 

USCA11 Case: 23-10616 Document: 53-1 Date Filed: 10/30/2023 Page: 31 of 43
20 JILL Pryor, J., Dissenting 23-10616

Today, the majority opinion places equal protection plaintiffs within our circuit in a double bind. Under our existing precedent, they must meet the increasingly difficult task of producing 

persuasive evidence of legislative intent to discriminate. And they 

must do so by focusing on the specific chain of events leading to 

the enactment of the challenged legislation. The majority opinion 

adds that—no matter the circumstances—they are not entitled to 

discovery into “legislative acts or the motivation for actual performance of legislative acts.” Maj. Op. at 7 (internal quotation marks 

omitted). In essence, the majority opinion forces a whole category 

of plaintiffs, tasked with an already difficult standard of proof, to 

make their cases without the tools ordinarily available to civil litigants.12

12 I do not mean to suggest that equal protection plaintiffs will be totally unable to obtain materials to support their cases. When circumstances allow, 

they may be able to subpoena third parties sufficiently removed from the legislative process to fall outside the scope of the privilege. See Page v. Va. State 

Bd. of Election, 15 F. Supp. 3d 657, 662–64 (E.D. Va. 2014) (collecting examples). 

Likewise, state law or legislative practice may also effectively guarantee access 

to some relevant documentary materials. See Fla. Const. art. I, § 24. And, of 

course, legislators may waive or decline to invoke their privilege. See Fed. R. 

Civ. P. 45(d)(3)(A)(iii). But the district court took into account “the availability 

of other evidence” when it determined that the privilege should yield in this 

case. Doc. 100 at 10. The majority opinion’s rule means that § 1983 plaintiffs 

are not entitled to documentary discovery against legislators ever—even 

when no other route is available to discover evidence to test their claims.

USCA11 Case: 23-10616 Document: 53-1 Date Filed: 10/30/2023 Page: 32 of 43
23-10616 JILL PRYOR, J., Dissenting 21

The district court charted a better course. It recognized that 

“some civil cases implicate federal interests that are at least as important—if not more important—than the enforcement of federal 

criminal statutes, where the privilege undoubtedly gives way.” 

Doc. 100 at 9; accord Gillock, 445 U.S. at 373 (“[W]here important 

federal interests are at stake, as in the enforcement of federal criminal statutes, comity yields.”). It then applied a balancing test and 

determined this was such a case.

Under Federal Rule of Evidence 501, that was appropriate. 

Rule 501 instructs us—“United States courts”—to interpret the 

scope of federal common-law privileges (and thus the privilege 

held by the legislators) “in the light of reason and experience.” Fed. 

R. Evid. 501. Reason suggests that if comity yields to the federal 

interest in enforcing federal criminal statutes against state legislators, it can also yield to other federal interests of comparable importance. Judicial experience teaches that § 1983 cases can both involve important federal interests and require inquiry into legislative motivations. 

In Gillock, faced with determining whether a federal interest 

it had identified justified overcoming the legislative privilege, the 

Supreme Court looked to its resolution of a similar dilemma in the 

context of the executive privilege. Gillock, 445 U.S. at 373 (“We recognize that denial of a privilege to a state legislator may have some 

minimal impact on the exercise of his legislative function; however, similar arguments made to support a claim of Executive privilege were found wanting in United States v. Nixon when balanced 

USCA11 Case: 23-10616 Document: 53-1 Date Filed: 10/30/2023 Page: 33 of 43
22 JILL Pryor, J., Dissenting 23-10616

against the need of enforcing federal criminal statutes.” (internal 

citation omitted)). The district court did, too. It borrowed a balancing test applicable to the deliberative-process privilege—an executive privilege designed to protect the “process by which governmental decisions and policies are formulated” and thus “enhance 

the quality of agency decisions by protecting open and frank discussion among those who make them within the Government.”

Dep’t of Interior v. Klamath Water Users Protective Ass’n, 532 U.S. 1, 8–

9 (2021) (internal citation and quotation marks omitted). It also 

cited precedent recognizing the differences between these two 

privileges and carefully adapting the test to better suit the purposes 

of the legislative privilege. Doc. 100 at 9 (citing Bethune-Hill v. Va. 

State Bd. of Elections, 114 F. Supp. 3d 323, 338 (E.D. Va. 2015)). And, 

consistent with Rule 501’s command to interpret privileges in light 

of judicial experience, the district court applied the same balancing 

test to evaluate claims of legislative privilege as have district courts 

in numerous other cases.13

In adopting an untested, per serule, the majority opinion criticizes the district court’s application of a balancing test as “manipulable”—as if balancing tests were not commonplace in our law. 

13 See, e.g., S.C. State Conf. of NAACP v. McMaster, 584 F.Supp.3d 152, 163 

(D.S.C. 2022); League of Women Voters of Fla., Inc. v. Lee, 340 F.R.D. 446, 456 

(N.D. Fla. 2021); Church v. Montgomery Cnty., 335 F. Supp. 3d 758, 767 (D. Md. 

2018); Benisek v. Lamone, 241 F. Supp. 3d 566, 575 (D. Md. 2017) (Niemeyer, J.);

Bethune-Hill, 114 F. Supp. 3d at 338; Favors v. Cuomo, 285 F.R.D. 187, 217 

(E.D.N.Y. 2012); Rodriguez v. Pataki, 280 F. Supp. 2d 89, 100–01 (S.D.N.Y. 

2003). 

USCA11 Case: 23-10616 Document: 53-1 Date Filed: 10/30/2023 Page: 34 of 43
23-10616 JILL PRYOR, J., Dissenting 23

Maj. Op. at 11. A balancing test is appropriate here. Although 

Gillock did not adopt any particular test, the Supreme Court balanced the strength of the federal interest in the enforcement of 

criminal statutes against the comity interest protected by the privilege. See Gillock, 445 U.S. at 373 (“[R]ecognition of an evidentiary 

privilege for state legislators for their legislative acts would impair 

the legitimate interest of the Federal Government in enforcing its 

criminal statutes with only speculative benefit to the state legislative process.”). 

The breadth of our construction of the legislative privilege 

in Hubbard (namely, that whenever the relevant purpose of a document request is to discover “the subjective motivations of those 

acting in a legislative capacity,” the privilege applies) weighs 

against a per se rule, too. Hubbard, 803 F.3d at 1311. As we have 

interpreted it, the legislative privilege reaches intrusions into the 

legislative process both petty and great. But the majority opinion 

draws no distinction between them. The majority opinion would 

treat alike the legislature’s interest in avoiding a subpoena seeking 

the production of the purely factual record before it when it made 

a legislative decision and one seeking to depose sitting legislators 

to interrogate their motivations in undertaking their legislative duties. Of course, each discovery request infringes on at least some of 

the interests underlying the legislative privilege and thus properly 

triggers a privilege analysis. Id. But the majority opinion flattens 

the analysis that follows into a single rule: the legislators win. The 

majority opinion does so even though sometimes the legislative interest in avoiding discovery will be minute (and thus appropriately 

USCA11 Case: 23-10616 Document: 53-1 Date Filed: 10/30/2023 Page: 35 of 43
24 JILL Pryor, J., Dissenting 23-10616

overcome) and other times it will be great (and thus appropriately 

undisturbed). Respectfully, that defies both “reason and experience.” Fed. R. Evid. 501.

By contrast, the factors the district court considered are sensible ones. They seek to approximate and weigh both the degree to 

which the discovery would advance an important federal interest 

and the degree to which it would offend comity. They are also 

likely to vary significantly from case to case (yet another reason to 

avoid a one-size-fits-all approach to claims of legislative privilege). 

For instance, the district court considered “the availability of other 

evidence”—acknowledging that where a § 1983 plaintiff can turn 

to other sources to explore legislative motive, breaching the privilege is inappropriate. Doc. 100 at 10. It considered the relevance of 

the evidence likely to be obtained by breaching the privilege. That 

inquiry was appropriate because although sometimes “the subjective motivations of” a bill’s “leading sponsors are highly relevant,” 

id., in other instances they are not relevant at all, see, e.g., Hubbard, 

803 F.3d at 1312 (“[W]hen a statute is facially constitutional, a plaintiff cannot bring a free-speech challenge by claiming that the lawmakers who passed it acted with a constitutionally impermissible 

purpose.”). The district court also considered the seriousness of the 

litigation, concluding that because the plaintiffs “are seeking to vindicate public right[s] that impact thousands of faculty and students,” Doc. 100 at 11, their claim involved federal interests similar 

in importance to those “at stake . . . in the enforcement of federal 

criminal statutes,” Gillock, 445 U.S. at 373. Finally, the district court 

USCA11 Case: 23-10616 Document: 53-1 Date Filed: 10/30/2023 Page: 36 of 43
23-10616 JILL PRYOR, J., Dissenting 25

considered “the legislative privilege’s purpose.” Doc. 100 at 12. Because it considered this factor, the district court was able to distinguish between “the most egregious intrusions into the legislative 

process,” id. at 13, such as requests for the communications of individual legislators and their staff, and those that would do much 

less to offend principles of comity, such as requests for factual information available to the legislators. The majority opinion flatly 

prohibits district courts from considering any of this.

To be clear, I do not suggest swapping the majority opinion’s per se rule for another. My view is much more modest: In rare 

instances, the interest in enforcing federal law and the Constitution 

will justify allowing § 1983 plaintiffs to seek at least some discovery 

from state legislators. And a balancing test is a perfectly sensible 

way to identify these instances. This approach does not mean that 

whenever legislative intent is an element of a plaintiff’s claim, the 

privilege will yield. Not at all. Even when legislative intent is highly 

relevant, careful balancing may compel the conclusion that the 

privilege holds—such as when the form of discovery the plaintiff 

seeks is particularly intrusive or the plaintiff has other ways to obtain similar information. 

The majority opinion portrays its absolutist approach as the 

logical result of precedent. But this is not so. Despite its startling 

reach, the majority opinion’s holding lacks substantial support. Of 

the decisions it cites, almost none actually endorses a holding that 

USCA11 Case: 23-10616 Document: 53-1 Date Filed: 10/30/2023 Page: 37 of 43
26 JILL Pryor, J., Dissenting 23-10616

the legislative privilege never yields in § 1983 cases.14 And no precedent binding on us requires this outcome. The majority opinion’s 

holding is an outlier.

Since Gillock, “the Supreme Court has not set forth the circumstances under which the privilege must yield” to other federal 

interests. Lee v. City of L.A., 908 F.3d 1175, 1187 (9th Cir. 2018). And 

neither have we. The closest brush this Court has had with the 

question came in Hubbard. Hubbard involved a First Amendment 

retaliation claim against Alabama officials under 42 U.S.C. § 1983. 

Hubbard, 803 F.3d at 1301. Although we acknowledged that as a general matter “enforcing the First Amendment” constitutes “an important federal interest,” we found that the underlying lawsuit in 

Hubbard lacked merit. Id. at 1312. So, in that particular case, “the 

specific claim asserted [did] not legitimately further an important 

federal interest” and the privilege did not yield. Id. We reserved the 

question of “whether, and to what extent, the legislative privilege 

would apply to a subpoena in a private civil action based on a different kind of constitutional claim”—such as a legally sufficient 

14 The sole exception is the Fifth Circuit’s recent decision in La Union Del 

Pueblo Entero, 68 F.4th at 237–40. That decision is unpersuasive. Like the majority opinion here, the Fifth Circuit rested its decision on the flawed premise 

that because state legislators hold immunity from liability in § 1983 actions 

under Tenney, they must also hold an absolute privilege against third party 

discovery in § 1983 actions against other state officials. See id. at 239–40 (“[A]

state legislator’s common-law absolute immunity from civil actions precludes 

the compelled discovery of documents pertaining to the state legislative process[.]”). But, as I address in my discussion of the majority opinion’s (mis)use 

of Tenney below, there is simply no reason why that must be so.

USCA11 Case: 23-10616 Document: 53-1 Date Filed: 10/30/2023 Page: 38 of 43
23-10616 JILL PRYOR, J., Dissenting 27

one. Id. at 1312 n.13. That is why the legislators concede that this 

Court has “had no occasion to address whether the evidentiary 

privilege . . . is absolute” in our prior cases. Br. of Appellants at 13.

The majority opinion’s attempts to look beyond Gillock and 

Hubbard for support are unpersuasive. The cases it cites do not support a holding that legislative privilege never yields in § 1983 cases.

Take one example. The majority opinion puts significant 

stock in the Supreme Court’s decision in Tenney v. Brandhove and 

later statements in Gillock and Hubbard repeating Tenney’s holding. 

See Gillock, 445 U.S. at 372; Hubbard, 803 F.3d at 1312. The majority 

opinion reasons as if Tenney (and its treatment by Gillock) resolves 

this case. See Maj. Op. at 11 (“In the light of Gillock and Tenney, we 

cannot except civil-rights actions from the application of the legislative privilege.”). But as the Supreme Court explained in Gillock, 

“the issue [in Tenney] was whether state legislators were immune 

from civil suits for alleged violations of civil rights under 42 U.S.C. 

§ 1983,” not whether they could be required to turn over evidence 

as third parties. Gillock, 445 U.S. at 371. Tenney was an action in 

which a plaintiff sued an individual legislator, seeking money damages under § 1983 for allegedly unconstitutional legislative activity. 

Tenney, 341 U.S. at 371. 

In concluding that the legislator was immune from such an 

action, the Tenney court warned against confusing its holding on immunity from suit with one addressing the scope of third-party evidentiary privileges: “We have only considered the scope of the 

privilege as applied to the facts of the present case.” Id. at 378. And 

USCA11 Case: 23-10616 Document: 53-1 Date Filed: 10/30/2023 Page: 39 of 43
28 JILL Pryor, J., Dissenting 23-10616

it cautioned that “privilege in such a case deserves greater respect 

than where . . . the legislature seeks the affirmative aid of the courts 

to assert a privilege.” Id. Under the rubric of comity, drawing such 

a distinction makes good sense. Compared to affirmatively subjecting individual state legislators to liability for discharging legislative 

functions, “[t]he absence of a judicially created evidentiary privilege for state legislators is not . . . comparable intervention by the 

Federal Government into essential state functions.” Gillock, 445 

U.S. at 371.

Consider a second example of the majority opinion’s slippery use of precedent. The majority opinion cites language from 

the D.C. Circuit’s decision in Brown & Williamson Tobacco Corp. v. 

Williams stating that “[w]e do not perceive a difference in the vigor 

with which the privilege protects against compelling a congressman’s testimony as opposed to the protection it provides against 

suit.” 62 F.3d 408, 421 (D.C. Cir. 1995). But the privilege at issue in 

Williams was not the federal common-law privilege against discovery held by state legislators under Federal Rule of Evidence 501, it 

was the constitutional privilege contained in the Speech or Debate 

Clause of Article I. U.S. Const., art. I, § 6, cl. 1. I have already explained the foundational differences between that privilege and this 

one. So has the Supreme Court. See Gillock, 445 U.S. at 366–71. 

And here is a third example. The majority opinion claims 

that four of our sister circuits—the first, the fifth, the eighth, and 

the ninth—“have rejected [the] approach” taken by the district 

court. Maj. Op. at 11 (citing Am. Trucking Ass’ns v. Alviti, 14 F.4th 

USCA11 Case: 23-10616 Document: 53-1 Date Filed: 10/30/2023 Page: 40 of 43
23-10616 JILL PRYOR, J., Dissenting 29

76, 88 (1st Cir. 2021); La Union Del Pueblo Entero, 68 F.4th at 239–40; 

In re N.D. Legis. Assembly, 70 F.4th 460, 465 (8th Cir. 2023); Lee, 908 

F.3d at 1186). But only one of these courts (the Fifth Circuit) has 

actually held that the legislative privilege is “insurmountable” in 

section 1983 claims. Id. at 10. In Lee, the Ninth Circuit held that “the 

factual record . . . [fell] short of justifying the substantial intrusion 

into the legislative process” of deposing legislators. Lee, 908 F.3d at 

1188 (internal quotation marks omitted). But it did not shut the 

door on all discovery in the way the majority opinion does today. 

See id. (acknowledging that “extraordinary circumstances . . . might 

justify an exception to the privilege” (internal quotation marks 

omitted)). The same goes for the First Circuit in Alviti. Alviti confirmed that “the mere assertion of a federal claim” was not “sufficient” to breach the privilege (a proposition with which the district 

court here agreed). Alviti, 14 F.4th at 88. But the First Circuit preserved the possibility that “there might be a private civil case in 

which state legislative immunity must be set to one side because 

the case turns so heavily on subjective motive or purpose.” Id. It 

reasoned that the claim at issue, which arose under the Dormant 

Commerce Clause, did not depend on “proof of the subjective intent of state lawmakers,” and so the need for discovery could not 

“warrant setting aside the privilege.” Id. at 88–89. And so too for 

the eighth, which acknowledged that the underlying case before it 

did “not even turn on legislative intent” and so could not qualify as 

an ‘“extraordinary instance[]’ in which testimony might be compelled from a legislator.” In re N.D. Legis. Assembly, 70 F.4th at 464–

65 (quoting Arlington Heights, 429 U.S. at 268). Citing Alviti, the 

USCA11 Case: 23-10616 Document: 53-1 Date Filed: 10/30/2023 Page: 41 of 43
30 JILL Pryor, J., Dissenting 23-10616

Eight Circuit also observed that “[a]ny exception to legislative privilege that might be available in a case that is based on a legislature’s 

alleged intent is thus inapplicable.” Id. at 465.15 It did not shut the 

door entirely.

At the end of the day, only the majority opinion is responsible for this worrisome development in our precedent. I fear its 

holding will hamper efforts to enforce constitutional limits on state 

behavior and thus impair important federal interests. Gillock gives 

us the authority to avoid exactly this outcome: “where important 

federal interests are at stake[,] . . . comity yields.” Gillock, 445 U.S. 

at 373.

* * *

A conclusion that the district court properly qualified the 

privilege invoked by the legislators ends this appeal. The legislators 

staked their appeal on the argument that the privilege never yields 

in cases arising under § 1983; they declined to challenge the district 

court’s order on any other grounds. The majority rewards this 

risky strategy and delivers the legislators a grand slam. I would hold 

that the legislative privilege is not absolute in § 1983 cases—and 

15 To be sure, the Eight Circuit wrote disapprovingly of the balancing test 

employed by the district court here. But it did not hold, as the majority opinion does, that legislative privilege is never overcome in suits arising under 

§ 1983. 

USCA11 Case: 23-10616 Document: 53-1 Date Filed: 10/30/2023 Page: 42 of 43
23-10616 JILL PRYOR, J., Dissenting 31

nothing more. Because I would thus affirm the district court’s order denying in part the legislators’ motion to quash, I respectfully 

dissent. 

USCA11 Case: 23-10616 Document: 53-1 Date Filed: 10/30/2023 Page: 43 of 43