Director, Center for Supreme Court AdvocacyNational Association of Attorneys General
This Report summarizes opinions issued on March 23, 24, and 31, and April 4, 2022 (Part I); and cases granted review on March 28, 2022 (Part II).
Opinion: Houston Community College System v. Wilson, 20-804
Houston Community College System v. Wilson, 20-804. The Court unanimously held that the board of trustees for a public entity does not violate a board member’s First Amendment right to free speech by censuring that member. The Houston Community College System (HCC) is a public entity that operates community colleges in Texas. David Wilson was elected to the HCC Board of Trustees in 2013, and he often strongly disagreed with the other members on the issues before them. Wilson also brought lawsuits challenging the Board’s actions. By 2016, these disagreements led the Board to reprimand Wilson publicly, but this did not stop him. Wilson charged the Board in various media outlets with violating its bylaws and ethical rules; he arranged robocalls to publicize his views; he hired a private investigator to surveil another Board member; and he initiated two more lawsuits. These two lawsuits cost HCC over $20,000 in legal fees, on top of more than $250,000 in legal fees incurred due to the earlier litigation. In 2018, the Board adopted another public resolution “censuring” Wilson. The resolution stated that Wilson’s conduct was “not consistent with the best interest of the college,” and “not only inappropriate, but reprehensible.” The Board also imposed penalties, stating that Wilson would be ineligible for election to Board officer positions for the 2018 calendar year, was ineligible for reimbursement for HCC-related travel, and future requests to access funds would require Board approval. The Board recommended that Wilson “complete additional training relating to governance and ethics.” Wilson amended the pleadings in one of his pending lawsuits to add claims against HCC and the Board members under 42 U.S.C. §1983 asserting that the 2018 censure violated the First Amendment. The case was removed to federal court, and Wilson dropped his colleagues from the suit, leaving HCC as the sole defendant. The district court granted a motion to dismiss the complaint on the ground that Wilson lacked Article III standing. The Fifth Circuit reversed, holding that a public “reprimand against an elected official for speech addressing a matter of public concern is an actionable First Amendment claim under § 1983,” but other punishments such as limiting access to funds “did not violate his First Amendment rights” because Wilson did not have an “entitlement” to those privileges. In an opinion by Justice Gorsuch, the Court reversed the finding of an actionable First Amendment claim.
Neither party questioned that the First Amendment generally prohibits government officials from subjecting individuals to “retaliatory actions” for engaging in protected speech. But “long settled and established practice is a consideration of great weight” when construing the Constitution, and elected bodies in this country have long exercised the power to censure their members. “In fact, no one before [the Court] has cited any evidence suggesting that a purely verbal censure analogous to Mr. Wilson’s has ever been widely considered offensive to the First Amendment.” The Court observed that in colonial times, the power of assemblies to censure their members was “more or less assumed.” The power has been used to censure members for views expressed or actions taken “both within and without the legislature.” For example, the United States Senate issued its first censure in 1811. The Court listed other examples of congressional censures through 2016, and it noted that similar censures were “more common yet at the state and local level.” This history, said the Court, suggested that the First Amendment permits free speech “on both sides and for every faction on any side.”
The Court next looked to its modern precedent. To show a First Amendment retaliation claim, a plaintiff must show that the government took an “adverse action” in response to speech, and that the action “would not have been taken absent the retaliatory motive.” The Court contrasted actions that are easy to identify (such as an arrest, a prosecution, or a dismissal from governmental employment) with actions that “no one” would think rises to an actionable claim (such as a frown from a supervisor). Although lower courts have taken various approaches to distinguish material from immaterial adverse actions, the Court observed that “any fair assessment” of the Board’s conduct in this case “must account for at least two things.” First, Wilson was an elected official, and elected officials are expected to “shoulder a degree of criticism about their public service” and to “continue exercising their free speech rights when the criticism comes.” Second, the only adverse action before the Court was itself a form of speech from Wilson’s colleagues on a matter of public importance. The Court stated that Wilson’s right to free speech “surely . . . cannot be used as a weapon to silence other representatives seeking to” voice their opinions.
The Court cautioned that it did not mean to “suggest that verbal reprimands or censures can never give rise to a First Amendment retaliation claim.” For example, a reprimand or censure might impair the First Amendment freedoms of a student, employee, or licensee. The Court also pointed out that it did not address a censure accompanied by punishment, or a censure aimed at private individuals or members of other governmental bodies. The Court rejected Wilson’s argument that his case resembled Bond v. Floyd, 385 U.S. 116 (1966), where a state legislature refused to seat a duly elected representative on the grounds that his comments criticizing the Vietnam War were incompatible with the state’s required loyalty oath. The Court observed that the legislature’s action in Bond implicated not only the elected official’s freedom of speech, but the franchise of his constituents. Moreover, Bond “involved not just counterspeech from colleagues but exclusion from office.” The Court similarly distinguished an English case where Parliament expelled a member because of his published remarks. The Court emphasized that its holding is “narrow.” “[This case] involves a censure of one member of an elected body by other members of the same body. It does not involve expulsion, exclusion, or any other form of punishment.” The Court concluded, “Argument and ‘counterargument,’ not litigation, are the ‘weapons available’ for resolving this dispute.”
[Editor’s note: Some of the language in the background section of the summary above was taken from the petition for writ of certiorari and brief in opposition.]