On March 24, 2022, the U.S. Supreme Court held in a unanimous decision that an elected body can censure other members of the same body for their speech, without running afoul of First Amendment protections. The case is Houston Community College System v. Wilson, ___ S.Ct. ___, 2022 WL 867307 (2022). 

As we discussed in an earlier client alert, Houston involves a board member, Mr. Wilson, who often disagreed with the Board and brought multiple suits challenging the Board’s actions. Mr. Wilson was publicly reprimanded by the Board in 2016, but he continued to charge the Board in media outlets and state-court actions with violating its ethical rules and bylaws. In 2018, the Board adopted another public resolution, this one “censuring” Mr. Wilson and stating that his conduct was “not consistent with the best interests of the College” and “not only inappropriate, but reprehensible.” Id. at *1. 

Mr. Wilson added claims against Houston Community College (“HCC”) and its Board of Trustees under 42 U. S. C. § 1983 in one of his pending state-court lawsuits, asserting that the Board’s censure violated the First Amendment. The case was removed to federal court, and the District Court granted HCC’s motion to dismiss the complaint, concluding that Mr. Wilson lacked standing under Article III. On appeal, a panel of the Fifth Circuit reversed, holding that Mr. Wilson had standing and that his complaint stated a viable First Amendment claim. 955 F. 3d 490, 496–497. The Fifth Circuit concluded that a verbal “reprimand against an elected official for speech addressing a matter of public concern is an actionable First Amendment claim under § 1983.” Id., at 498. HCC sought review in the Supreme Court of the Fifth Circuit’s judgment that Mr. Wilson may pursue a First Amendment claim based on a purely verbal censure. 

The Supreme Court in this case ruled that Mr. Wilson does not possess an actionable First Amendment retaliation claim arising from the Board’s purely verbal censure. Thus, a legislative body passing a verbal censure of one of its own members does not violate the First Amendment.

The Supreme Court reasoned that the First Amendment prohibits laws “abridging the freedom of speech.” Elected bodies in this country have long exercised the power to censure their members. As early as colonial times, the power of assemblies to censure their members was assumed. And, as many examples show, Congress has censured Members not only for objectionable speech directed at fellow Members but also for comments to the media, public remarks disclosing confidential information, and conduct or speech thought damaging to the Nation. Censures have also proven common at the state and local level. In fact, no one before the Court cited any evidence suggesting that a purely verbal censure analogous to Mr. Wilson’s was ever widely considered offensive to the First Amendment. Instead, when it comes to disagreements of this sort, longstanding practice suggests an understanding of the First Amendment that permits “[f]ree speech on both sides and for every faction on any side.” Thomas v. Collins, 323 U. S. 516, 547 (1945). 

What history suggests, the Court’s contemporary doctrine confirms. A plaintiff like Mr. Wilson pursuing a First Amendment retaliation claim must show that the government took an “adverse action” in response to his speech that “would not have been taken absent the retaliatory motive.” Nieves v. Bartlett, 587 U. S. ___, ___. The Court decided the case on two grounds:

First, Mr. Wilson was an elected official. Elected representatives are expected to shoulder a degree of criticism about their public service from their constituents and their peers—and to continue exercising their free speech rights when the criticism comes. 

Second, the only adverse action at issue before the Court was a form of speech from Mr. Wilson’s colleagues that concerns the conduct of public office. The First Amendment surely promises an elected representative like Mr. Wilson the right to speak freely on questions of government policy, but it cannot be used as a weapon to silence other representatives seeking to do the same. The censure at issue was a form of speech by elected representatives concerning the public conduct of another elected representative. Everyone involved was an equal member of the same deliberative body. The censure did not prevent Mr. Wilson from doing his job, it did not deny him any privilege of office, and Mr. Wilson does not allege it was defamatory. 

Given the features of Mr. Wilson’s case, the Supreme Court found the Board’s censure did not qualify as a materially adverse action capable of deterring Mr. Wilson from exercising his own right to speak. 

It is important to note that this decision is narrow. It entails only a First Amendment retaliation claim, not any other claim or any other source of law. It only 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.

Although this decision is narrow, its impact is great. The censure power is a widely used tool for elected bodies to reprimand or express disapproval toward members of their own. Accordingly, this decision will have an impact on elected governmental bodies across the nation. 

If you have any questions about this Legal Update, please contact Attorney Kirstin Mathers at
262-364-0251 or kmathers@buelowvetter.com, or your Buelow Vetter attorney.