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Janus v AFSCME

U.S. Supreme Court to Address First Amendment Rights of Censured Board Member

On April 26, 2021, the U.S. Supreme Court granted a Petition for Certiorari review in Wilson v. Houston Community College System. The issue before the Court is whether a Board’s resolution to censure a Board member violated the First Amendment.

This issue is before the U.S. Supreme Court after a decision by the U.S. Court of Appeals for the 5th Circuit on April 7, 2020, which ruled in favor of a member of the Houston Community College System (HCC) Board of Trustees who was censured due to public comments he made in opposition to the views shared by a majority of the Board. During his tenure on the Board, Wilson had filed several lawsuits against HCC in a span of three years and used public media to criticize the positions of other Board members. Wilson also interviewed with a local radio station and publicly identified Board members who voted in favor of a transaction that he opposed. The 5th Circuit held that the “censures of publicly elected officials” for protected speech, without more, “can be a cognizable injury under the First Amendment.” The holding, as HCC argues, directly conflicts with prior decisions on this very issue in the Third, Fourth, Sixth, Ninth, and Tenth Circuits. Notably, the district court had granted HCC’s motion to dismiss the case on the basis of the 10th Circuit’s holding in Phelan v. Laramie County Community College Board of Trustees. The 5 th Circuit U.S. Court of Appeals reversed the decision of the district court, believing that the district court had improperly relied on the 10th Circuit’s decision in Phelan.

In Phelan, the court held that the community college board’s censure of one of its board members was not a violation of the First Amendment because the censure did not prevent the board member from performing her duties or restrict her ability to speak. Therefore, as the court reasoned, there was no injury-in-fact stemming from the censure to give rise to a First Amendment claim. In the present case, Wilson was censured and several restrictions were placed on his duties as a member of the Board. These facts serve as the basis to distinguish the present case from Phelan. However, HCC argues that Phelan is still controlling because the Fifth Circuit did not base their holding on the fact that Wilson’s censure was accompanied by other restrictions, but rather, that the Board’s “public censure” without more, was enough to create standing for a First Amendment claim.

Likewise, the 4 th and 6th Circuit U.S. Court of Appeals have held that an elected body’s authority to censure a member for speech is not restricted by the First Amendment in Whitener v. McWatters and Zilich v. Longo, respectively. In Whitener, a board member was censured for using abusive language towards other members of the board. The 4th Circuit’s decision in Whitener was aligned with the 6th Circuit’s decision in Zilich, which held a city council member did not have a First Amendment claim after the city council censured him for criticizing the city’s mayor and law department.

The 5th Circuit held that “a reprimand against an elected official for speech addressing a matter of public concern is an actionable First Amendment claim.” Instead of relying on the decision in Phelan, the 5th Circuit based their reasoning on decisions made in the 5th Circuit where judges whose protected speech led to censure by local state agencies could raise First Amendment retaliation claims. Applying that precedent to Wilson’s case, the Court believed that Wilson was censured for speech that would ordinarily be protected by the First Amendment, and therefore he had an actionable First Amendment claim.

The issue to be decided by the U.S. Supreme Court impacts elected governmental bodies across the nation as the censure power has been a widely used tool for elected bodies to reprimand or express disapproval toward members of their own. Whether that power may be limited by the First Amendment is an important constitutional question. We will keep you informed and advised on the outcome of this case.

If you have any questions about this Legal Update, please contact Attorney Gary Ruesch at
262-364-0263 or gruesch@buelowvetter.com, or Attorney Alana Leffler at 262-364-0267 or aleffler@buelowvetter.com, or your Buelow Vetter attorney. Assistance in drafting this update was provided by Aleah Loll, law clerk and Juris Doctorate Candidate, May 2022.

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