U.S. Supreme Court Affirms First Amendment Protection of Elected Bodies to Censure Members

March 29, 2022 | Insights

By Amanda Crouch

On March 24, 2022, the United States Supreme Court decided Houston Community College System v. Wilson, holding that an elected official does not possess an actionable First Amendment retaliation claim arising from a purely verbal censure. Justice Gorsuch authored the opinion for a unanimous Court.

This case arises from years of disagreements between David Buren Wilson, an elected member of the Houston Community College System (HCC) Board of Trustees, and the Board. After his election in 2013, Wilson voiced his disagreement with his colleagues about the best interests of HCC and began filing various lawsuits challenging the Board’s actions. In 2016, the Board publicly reprimanded Wilson. In the following months, Wilson accused the Board in various media outlets of violating its bylaws and ethical rules, arranged robocalls to the constituents of certain trustees and hired a private investigator to surveil another trustee. He also filed two lawsuits in state court against the Board.

At a 2018 meeting, the Board adopted another public resolution censuring Wilson. The resolution stated that Wilson’s conduct was “not consistent with the best interests of [HCC]” and “not only inappropriate, but reprehensible.” The Board also determined that Wilson was ineligible for election to Board officer positions, ineligible for reimbursement for any college-related travel and recommended that he complete additional training relating to governance and ethics.

Shortly after adoption of the second resolution, Wilson asserted claims against HCC and the trustees alleging the Board’s censure violated the First Amendment. The district court granted HCC’s motion to dismiss the complaint based on lack of standing under Article III. The Fifth Circuit reversed, holding that Wilson had standing and his complaint stated a viable First Amendment claim. The Supreme Court granted HCC’s petition for certiorari to determine whether a purely verbal censure gives rise to an actionable First Amendment claim.

The Supreme Court reversed the Fifth Circuit, finding that verbal censure, without more, is protected free speech that does not give rise to an actionable claim. Relying on both historical precedent and contemporary doctrine, the Court noted that a plaintiff pursuing a First Amendment retaliation claim must show, among other things, that the government took an adverse action in response to his speech that would not have been taken absent the retaliatory motive. The Court enumerated censures against elected officials spanning more than 200 years, which the Court concluded “suggests an understanding of the First Amendment that permits “[f]ree speech on both sides and for every faction on any side.”

Specific to Wilson’s case, the Court opined that the adverse action Wilson complained about did not give rise to a First Amendment retaliation claim because: (1) Wilson’s status as an elected official comes with an expectation that he will shoulder a degree of criticism about his public service; and (2) HCC’s censure was itself a form of speech that is entitled to protection. The Court noted that just as “[t]he First Amendment surely promises an elected representative like Mr. Wilson the right to speak freely on questions of government policy, . . . just as surely, it cannot be used as a weapon to silence other representatives seeking to do the same.”

In reaching this conclusion, the Court upheld the long-standing constitutional history of elected bodies exercising their power to censure their members. The Court reiterated the breadth and strength of the First Amendment and the import it has in ensuring all voices are heard, including elected bodies, through the protection of free speech.

The opinions expressed are those of the author and do not necessarily reflect the views of the firm, its clients, or any of its or their respective affiliates. This article is for informational purposes only and does not constitute legal advice.

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Amanda N. Crouch
Partner, San Antonio